Page:Ovalles v. Rosen (17-60438) (2021) Opinion.pdf/5

 Id. And, as a practical matter, petitioners were in fact filing equitable tolling requests prior to the Lugo-Resendez decision. Id.

Ovalles offers two contrary arguments. First, he contends that we should not decide the case based on a purported lack of extraordinary circumstances because “the BIA never made such a finding” and “the government cannot defend an agency’s decision on a basis not articulated by the agency.” But the Board did conclude that Ovalles “has not shown that the time and number limitations on motions should be equitably tolled under Lugo-Resendez.” Additionally, the Board stated that Ovalles “has not demonstrated the requisite due diligence to warrant equitable tolling” because he waited until eight months after Lugo-Resendez was published to file his motion, and separately concluded that Ovalles “has not demonstrated an exceptional situation warranting sua sponte reopening.”

Importantly, Ovalles does not dispute that his due diligence was properly raised, indeed, he calls it the “only merits issue” before this court. But due diligence and extraordinary circumstances are related inquiries: an alien’s due diligence is considered in light of his circumstances. Thus, assessing due diligence necessarily includes a temporal component, which involves determining whether and when a purported extraordinary circumstance occurred. See Londono-Gonzalez, 978 F.3d at 967–68 (addressing “the diligence issue” on remand with a focus on “when to measure diligence,” concluding that Lugo-Resendez was not an “extraordinary circumstance that stood in his way,” and holding that the Board did not err in measuring diligence based on a different case).

The Board concluded that Ovalles did not demonstrate due diligence because “he waited approximately [eight] months after the Fifth Circuit issued Lugo-Resendez v. Lynch … to file his current motion.” This conclusion applies with even greater force in light of the conclusion in