Reaffirmation of “Crime of Violence” Status for Texas Aggravated Assault-By-Threat and the Limits of Equitable Tolling Based on Late Discovery of New Case Law

Introduction

The United States Court of Appeals for the Fifth Circuit’s unpublished decision in Artiga Minera v. Bondi, No. 24-60455 (Aug. 6, 2025), tackles two recurring—and often conflated—questions in immigration and criminal-sentencing jurisprudence:

• When, if ever, does a non-citizen’s late discovery of a favorable Supreme Court decision justify equitable tolling of the strict 30-day deadline for motions to reconsider removal orders?
• Does Borden v. United States, 593 U.S. 420 (2021), disturb the long-standing Fifth Circuit view that a Texas aggravated-assault-by-threat conviction qualifies as a “crime of violence” under 18 U.S.C. § 16 and, by extension, an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F)?

The court answered both in the negative. Petitioner Freddy Ernesto Artiga Minera, a lawful permanent resident removed in 2000 after an aggravated-assault conviction, resurfaced in immigration custody in 2024 and sought to reopen his case, asserting that Borden undermined the original crime-of-violence finding. The Board of Immigration Appeals (BIA) denied his motion as untimely and declined to act sua sponte. The Fifth Circuit (Judges Stewart, Clement, and Wilson, per curiam) affirmed, providing fresh, explicit guidance on equitable tolling diligence requirements and reaffirming—in light of Borden—that Texas Penal Code §§ 22.01(a)(2) & 22.02(a)(2) remain crimes of violence.

Summary of the Judgment

• Equitable Tolling. The court upheld the BIA’s refusal to toll the 30-day statutory deadline for a motion to reconsider, stressing that a petitioner must show affirmative, reasonable diligence in discovering the new legal basis; mere ignorance of the law, even of later-issued Supreme Court precedent, is insufficient.
• Merits (Crime of Violence). Even assuming timely filing, the panel agreed that Borden—which excludes purely reckless offenses—does not aid Artiga Minera because his Texas conviction required intentional or knowing threats with a deadly weapon. Post-Borden, Fifth Circuit precedent (United States v. Clark, 49 F.4th 889 (5th Cir. 2022)) squarely holds such an offense is a crime of violence under § 16(a).
• No Jurisdiction over Sua Sponte Denial. Following Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019), the court dismissed for lack of jurisdiction the challenge to the BIA’s discretionary refusal to reopen sua sponte.
• The petition was therefore DENIED IN PART (as to equitable tolling and merits) and DISMISSED IN PART (as to sua sponte review).

Detailed Analysis

1. Precedents Cited and Their Influence

a. Equitable Tolling Line

• Gonzalez Hernandez v. Garland, 9 F.4th 278 (5th Cir. 2021) – articulated the two-part test for equitable tolling (diligence + extraordinary circumstance).
• Flores-Moreno v. Barr, 971 F.3d 541 (5th Cir. 2020) – clarified “reasonable,” not “maximum feasible,” diligence.
• Gonzalez-Cantu v. Sessions, 866 F.3d 302 (5th Cir. 2017) – misunderstood by many litigants; the panel emphasized that it did not create automatic tolling until the petitioner subjectively learned of a relevant precedent.
• Valdes Amaro v. Garland, 2024 WL 1478880 (5th Cir. Apr. 5, 2024) – recently reaffirmed the limited reach of Gonzalez-Cantu.
• Galvan-Cerda v. Garland, 2022 WL 3210687 (5th Cir. Aug. 9, 2022) – refusal to credit lack of legal sophistication as a ground for tolling.

b. Crime-of-Violence Line

• Borden v. United States, 593 U.S. 420 (2021) – held that offenses requiring only a mens rea of recklessness are not “violent felonies” under the ACCA’s force clause.
• United States v. Clark, 49 F.4th 889 (5th Cir. 2022) – post-Borden, reaffirmed that Texas § 22.01(a)(2) (assault by threat) is a crime of violence under § 16(a).
• United States v. Torres, 923 F.3d 420 (5th Cir. 2019) – recognized the divisibility of Texas assault statutes, allowing the modified categorical approach.

2. The Court’s Legal Reasoning

a. Equitable Tolling Application

1. Statutory baseline. INA § 1229a(c)(6)(B) imposes a 30-day limit for motions to reconsider.
2. Available safety valve. Equitable tolling is permissible but must satisfy the Fifth Circuit’s two-part test (diligence + extraordinary circumstances).
3. Petitioner’s showing. Documents showed zero affirmative efforts between the issuance of Borden (June 2021) and the accidental discovery by his wife in May 2024.
4. Ruling. The panel endorsed the BIA’s conclusion that “ignorance of the law” and infrequent, vague consultations with counsel do not constitute “reasonable diligence.” The decision is couched in the deferential abuse-of-discretion standard, citing Singh v. Gonzalez and Lowe v. Sessions.

b. Merits – Crime of Violence Post-Borden

1. Modified categorical approach. Because Texas assault is divisible, the specific charging document confirmed that Artiga Minera threatened imminent bodily injury intentionally or knowingly while exhibiting a firearm – not the reckless, bodily-injury subsection.
2. Borden inapplicable. Borden excluded reckless crimes, but intent/knowledge offenses remain within § 16(a)’s “use of force” definition.
3. Binding circuit authority. Clark (2022) squarely forecloses the petitioner’s argument; the panel therefore alternatively held there would be no relief even if equitable tolling applied.

3. Impact of the Decision

Although unpublished, Fifth Circuit practitioners treat such opinions as persuasive indicators of how the court will handle analogous issues. Key anticipated effects include:

• Narrowed Equitable Tolling. Petitioners cannot rely on post-hoc discovery of favorable law; they must document continuous or at least periodic monitoring of legal developments, attorney consultations, or other proactive measures.
• Stability for Texas Assault Cases. Prosecutors, defense counsel, immigration lawyers, and sentencing courts retain a clear rule that Texas aggravated assault by threat with a deadly weapon remains a crime of violence notwithstanding Borden.
• Sua Sponte Review Remains Virtually Unreviewable. The panel reaffirms jurisdictional limitations, making it futile for litigants to challenge an agency’s refusal to reopen sua sponte in the Fifth Circuit.
• Strategic Guidance for Counsel. Defense and immigration attorneys must advise clients promptly after major Supreme Court opinions; failure to do so may extinguish statutory remedies.

Complex Concepts Simplified

• Crime of Violence (18 U.S.C. § 16). An offense that (a) has as an element the use, attempted use, or threatened use of physical force against a person or property (§ 16(a)), or (b) involves a substantial risk that force may be used (§ 16(b)). Immigration law imports this definition to label certain convictions “aggravated felonies.”
• Categorical vs. Modified Categorical Approach. Courts compare the statutory elements of the offense, not the actual facts, with the federal definition. When a statute lists multiple, alternative elements (divisible), courts may consult a limited set of documents (indictment, plea transcript) to identify which portion formed the basis of conviction.
• Equitable Tolling. A judicial doctrine that permits courts to pause a filing deadline when extraordinary circumstances beyond a litigant’s control, coupled with diligent pursuit of rights, prevent timely action.
• Sua Sponte Reopening. The BIA’s discretionary power to reopen or reconsider a case on its own motion outside normal deadlines. Because it is discretionary and not required by statute, courts typically lack jurisdiction to review refusals.

Conclusion

Artiga Minera v. Bondi may not be published but speaks volumes on two doctrinal fronts. First, it cements an exacting diligence requirement for equitable tolling of immigration deadlines: passive ignorance or sporadic attorney visits will not suffice. Second, it affirms, post-Borden, that Texas aggravated assault by threat with a deadly weapon unequivocally remains a “crime of violence.” This dual holding strengthens prosecutorial and DHS positions while sharpening defense counsel’s duty to monitor jurisprudence proactively. In the broader legal landscape, the decision underscores the Fifth Circuit’s continued fidelity to a textual, element-focused view of violent crimes and its reluctance to expand equitable tolling absent concrete, documented diligence.