Page:Ovalles v. Rosen (17-60438) (2021) Opinion.pdf/2

 This case comes back to the Fifth Circuit upon remand from the Supreme Court. See Ovalles v. Sessions, 741 F. App’x 259, 261 (5th Cir. 2018), vacated and remanded 140 S. Ct. 1062 (2020). The facts are undisputed. Ovalles is a native and citizen of the Dominican Republic who first came to the United States in 1985 as a child. See Ovalles v. Holder, 577 F.3d 288, 291 (5th Cir. 2009). He grew up in the United States with much of his immediate family and attended high school in this country. In 2003, Ovalles was convicted of attempted drug possession and sentenced to five years of probation. He was charged with removability pursuant to 8 U.S.C. §§ 1227(a)(2)(B)(i) (conviction of a controlled substance violation) and 1227(a)(2)(A)(iii) (conviction of an aggravated felony). See Ovalles v. Holder, 577 F.3d at 291. An immigration judge (“IJ”) found Ovalles removable based on Ovalles’s controlled substance conviction but granted his request for cancellation of removal after concluding that Ovalles’s conviction was not an aggravated felony. See id. The Board reversed the IJ’s grant of cancellation of removal, concluding that Ovalles had in fact been convicted of an aggravated felony, and Ovalles did not seek review of the Board’s decision from this court. See id. (describing the underlying IJ and Board decisions in more detail). Ovalles was removed to the Dominican Republic in 2004. See id.

In 2007, Ovalles filed his first motion to reconsider or reopen his immigration proceedings. He argued that, under Lopez v. Gonzales, 549 U.S. 47, 127 S. Ct. 625 (2006), his possession offense did not constitute an aggravated felony as defined by the Immigration and Nationality Act. Ovalles, 577 F.3d at 291. The Board noted that Ovalles’s motion was untimely, but ultimately chose not to consider the motion based on the departure bar. Id. On appeal, Ovalles conceded his motion to reopen was untimely. See id. at 299 (recognizing that Ovalles “concededly did not