Ninth Circuit Affirms Validity of 1473.7 Vacaturs for Immigration Purposes

The Ninth Circuit has determined that convictions vacated under California Penal Code section 1473.7 are cognizable for immigration purposes. “We need not dust off our dictionary or delve into the legislative history of § 1473.7(a)(1) to see that the statute provides a vehicle to vacate a conviction to address a substantive or procedural error that renders a conviction ‘legally invalid.’ The plain text does not permit a state court to vacate a conviction to alleviate any immigration consequences arising from the conviction or sentence.”

The court also clarified the due diligence aspect of a motion to reopen based a vacatur. “[T}he proper starting point for measuring diligence in this case is when a reasonable person in Bent’s position would be put on notice of the error underlying his motion to reopen.” The Court then concluded that diligence should be measured from the date of issuance of a Notice to Appear citing the conviction as a basis for removal. “On the one hand, Bent did not pursue vacatur of his conviction for five years after he received the NTA. That may well undermine his ability to demonstrate that he diligently pursued his rights. But on the other hand, there is also good reason to believe that Bent did diligently pursue his rights during this period. After all, due diligence requires a showing of reasonable diligence, not ‘maximum feasible diligence.’ That is, we do not require petitioners to demonstrate ‘an overzealous or extreme pursuit of any and every avenue of relief.’ In assessing a petitioner’s diligence, we ‘consider the petitioner’s overall level of care and caution in light of his or her particular circumstances,’ and we are ‘guided by decisions made in other similar cases . . . with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.’

“Here, after Bent’s NTA put him on notice that he was removable, he fervently defended against removal, first before the IJ and then several times before the BIA and this court. He undertook these efforts after spending nearly a decade in prison and while in immigration detention.6 Indeed, the basis for Bent’s vacatur—§ 1473.7(a)(1)—did not come into effect until 2017, long after his unconstitutional conviction.7 But that was not all. In 2022, while his petition for review of his final order of removal was still pending, Bent pursued and obtained his state court vacatur. Approximately one month later, before his merits petition was even fully briefed before us, he also filed his motion to reopen. He was so diligent that his petitions for review on the merits and on the motion to reopen are both presently before us.” The Court also noted that it would “leave it to the BIA10 to determine on remand whether the vacatur of Bent’s conviction on constitutional grounds under § 1473.7(a)(1) demonstrates that he faced extraordinary circumstances for purposes of equitable tolling.”

The full text of Bent v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/15/22-1910.pdf

An amended decision can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/06/22-1910.pdf

Fourth Circuit Applies De Novo Review to Equitable Tolling

The Fourth Circuit has determined that “the BIA’s decision to deny equitable tolling presents a mixed question we must review de novo.” The court noted that a “noncitizen needs to act only with ‘reasonable,’ ‘not maximum feasible diligence.’” The court also noted that when a motion to reopen is based on a change in law (in this case, the Supreme Court’s decision in Dimaya), the diligence requirement begins no earlier than the change in law. But even then, the court must ask when the petitioner reasonably could have discovered the change in law, taking into account the petitioner’s financial circumstances and ability to access counsel.

“Still, he discovered his rights just one year after the Court enunciated them. Giving 'due consideration to the reality that many departed aliens are poor, uneducated, unskilled in the English language, and effectively unable to follow developments in the American legal system, we hold Williams could not reasonably have been expected to have filed earlier.”

The full text of Williams v. Garland can be found here:

https://www.ca4.uscourts.gov/opinions/201854.P.pdf

An amended opinion can be found here:

https://www.ca4.uscourts.gov/opinions/201854.p.pdf

Fifth Circuit Finds that BIA Appeal Deadline is Subject to Equitable Tolling

The Fifth Circuit has determined that the 30-day filing deadline for a BIA appeal is subject to equitable tolling.

The full text of Boch-Saban v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60540-CV0.pdf

Ninth Circuit Rejects Equitable Tolling Argument

In a very brief analysis by Judge Paez, the Ninth Circuit rejected the equitable tolling argument of a former lawful permanent resident ordered removed in 2013 based on a finding that he had been convicted of a crime of violence under 18 USC 16(b). In 2015, the Ninth Circuit found that 16(b) was unconstitutionally vague, and the Supreme Court reached the same conclusion in April 2018. The petitioner filed a motion to reconsider his removal order in July 2018, and requested equitable tolling in light of the recent Supreme Court decision, which he became aware of in June 2018. The Ninth Circuit concluded that the agency did not abuse its discretion in denying the motion because the petitioner did not present any evidence that he acted diligently between 2013, when he was ordered removed, and July 2018, when he filed his motion.

Judge Van Dyke wrote a much longer concurrence agreeing with the outcome of Judge Paez’s two-page analysis.

Judge Korman wrote a strong dissent, finding that the petitioner acted with diligence by filing his motion less than two months after he learned about the Supreme Court’s Dimaya decision from his former criminal defense attorney.

The full text of Goulart v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/18/19-72007.pdf

First Circuit Remands Appeal for BIA to Consider Equitable Tolling of BIA Appellate Deadline

The First Circuit has remanded a petition for the Board of Immigration Appeals (BIA) to determine if the 30-day filing deadline for a BIA appeal should be equitably tolled for a medically vulnerable detainee whose appeal was filed during the COVID pandemic.

The full text of James v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1666P-01A.pdf

Ninth Circuit Affirms that Improperly Filed Appeal does not Toll Motion to Reopen Deadline

The Ninth Circuit has affirmed that an improperly filed appeal of an in absentia order did not toll the 180-day filing deadline for an exceptional circumstances motion to reopen. “While one could argue that Cui is a victim of ineffective assistance of counsel, she failed to raise any such claim andc ontinues to retain her arguably ineffective counsel before our court on appeal. Because we are limited to reviewing the arguments made in the briefs, we conclude both that the BIA did not abuse its discretion in determining Cui did not timely file a motion to reopen, and that the BIA did not commit legal error in declining to sua sponte reopen her removal proceedings.”

The full text of Cui v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/23/18-72030.pdf

SCOTUS Construes Jurisdiction to Review Removal Orders

The Supreme Court has determined that questions of law include the application of a legal standard to undisputed or established facts. This arises in the context of the “criminal alien bar,” which limits jurisdiction of review in federal appellate courts to constitutional claims and questions of law when the petitioner has been convicted of certain removable criminal offenses. The Fifth Circuit had determined that whether a petitioner had acted with sufficient due diligent to warrant equitable tolling of the 90-day deadline for a motion to reopen was a question of fact that could not reviewed if the criminal alien bar had been triggered. Both requests for equitable tolling were premised on new Fifth Circuit case law, and there was no dispute as to how long after that case law came out the petitioners waited to file their motions to reopen.

The court remanded the cases for the Fifth Circuit to exercise jurisdiction over the appeals and determine if equitable tolling was appropriate.

The full text of Guerrero-Lasprilla v. Barr can be found here:

https://www.supremecourt.gov/opinions/19pdf/18-776_8759.pdf

First Circuit Discusses Equitable Tolling for MTR Deadline

The First Circuit has addressed whether equitable tolling is appropriate for a motion to reopen to seek adjustment of status. The court noted that “the party seeking to toll the deadline bears the burden of showing: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.’” The court rejected the idea that he filing of an I-130 after the 90-day motion to reopen deadline, on its own, qualifies as an extraordinary circumstance. Similarly, the court noted that any hardship to the petitioner’s children was not substantially different than hardship during the 90-day filing period for a motion to reopen. Additionally,, the court noted that the petitioner waited 16 months after the approval of her I-130 petition to file the motion, undermining any argument that she had acted with diligence. Finally, the court determined that the petitioner had not raised any colorable constitutional or legal arguments that would allow it to review the BIA’s refusal to exercise its sua sponte authority.

The full text of Gyamfi v. Whitaker can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/18-1093P-01A.pdf

Fifth Circuit Discusses Standard of Review for IAC and Equitable Tolling

The Fifth Circuit has determined that a request for equitable tolling, insofar as it is related to a claim of ineffective assistance of counsel, is a question of law over which it has jurisdiction even if a petitioner has been convicted of a controlled substance violation.  The Court noted that "[w]e assume that a valid claim of IAC would constitute an 'extraordinary circumstance [that] stood in his way and prevented timely filing.'”  

The full text of Diaz v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/17/17-60230-CV0.pdf

Fifth Circuit finds that Due Diligence is a Question of Fact

The Fifth Circuit has determined that whether a petitioner has acted with due diligence, such as would toll equitably toll the filing deadline for a motion to reopen, is a question of fact.  As such, when a petitioner is subject to the jurisdictional limitations applicable to certain criminal convictions, the court has no jurisdiction to review whether the petitioner has acted with the requisite diligence.

The full text of Penalva v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/16/16-60286-CV0.pdf

Fifth Circuit Construes Equitable Tolling

The Fifth Circuit has determined that when an applicant is seeking equitable tolling of the filing deadline for a motion to reopen based on changes in case law, she must demonstrate that she filed the motion within 90 days of becoming aware of that change in law.

"Because Gonzalez-Cantu filed her motion to reopen on March 18, 2015, she needs to show that she discovered Garcia-Carias no more than 90 days before that date, given that her lack of knowledge of that case was the circumstance that supposedly tolled the limitations period. Yet her sworn statement, executed on January 5, 2015, says only that she learned of the case 'recently.' 'Recently' could mean several weeks before or several months before, either of which defeats her tolling claim. Indeed, at one point in her motion to reopen, she said she learned of Garcia-Carias on October 10, 2014, and the IJ concluded, based on that date, that her motion was untimely. Although Gonzalez-Cantu claims that the October date was a 'typographical error,' it further shows that she has failed to establish when she actually learned of the case."

The full text of Gonzalez-Cantu v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/15/15-60697-CV0.pdf

Fifth Circuit Finds that Equitable Tolling Applies to the Filing Deadline for Motions to Reopen

In a break from its past precedent following the Supreme Court's decision in Mata v. Lynch, the Fifth Circuit has determined that equitable tolling can be applied to the filing deadline for statutory motions to reopen.  In this case, a former lawful permanent resident moved to reopen his case 11 years after he was ordered removed based on several positive changes in law.  The Fifth Circuit remanded to determine if these changes in law could toll the 90 day filing deadline typically applied to a motion to reopen.  Though the Court expressed no opinion on whether tolling was appropriate, it did note that the petitioner would need to prove: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

The full text of Lugo-Resendez v. Lynch can be found here: 

http://www.ca5.uscourts.gov/opinions/pub/14/14-60865-CV0.pdf

First Circuit Rejects Equitable Tolling Based on a Change in Law

The First Circuit declined to find that a change in BIA case law equitably tolled the filing deadline for a motion to reconsider, even though the petitioner had made the now-accepted legal argument on direct appeal.

The full text of Omar v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/15-1258P-01A.pdf

Third Circuit Addresses Whether Misinformation Provided by a Government Employee May Toll the Filing Deadline for a Motion to Reopen

In an unpublished decision, the Third Circuit suggested that misinformation from a government employee (namely, an ICE officer who failed to inform him that he was eligible for bond or that he could seek relief from removal, and who instead convinced him to sign an expedited order of removal) may support an equitable tolling argument for a motion to reopen.  This equitable tolling could turn an untimely motion to reopen into a statutory motion to reopen (not subject to the post-departure regulatory bar) instead of leaving it as a sua sponte request for reopening.

The full text of Valdivinos-Lopez v. Lynch can be found here: http://www2.ca3.uscourts.gov/opinarch/144802np.pdf

Supreme Court Addresses Federal Court Jurisdiction over Untimely Motions to Reopen

Mata, the petitioner, filed an untimely motion to reopen his removal proceedings.  He argued that his motion was not time barred because his prior attorney had provided him with ineffective assistance of counsel, which should excuse the tardy filing of the motion to reopen.  The Board of Immigration Appeals (Board) denied the motion, finding that it was untimely and that the filing deadline need not be equitably tolled because Mata had not demonstrated any prejudice from his prior counsel's alleged ineffective assistance.  On appeal to the Fifth Circuit, the court construed any request for equitable tolling as a request for the Board's to exercise its sua sponte authority to reopen proceedings.  As the circuit court had no jurisdiction to review the Board's decision not to exercise its sua sponte authority, the Fifth Circuit dismissed the appeal.  The Fifth Circuit is the only circuit that has ruled that it lacks jurisdiction to review equitable tolling requests, and the Supreme Court accepted review of Mata's case in order to resolve the circuit split on the issue.

The Supreme Court reaffirmed that the corcuit courts have jurisdiction when a non-citizen appeals from the Board’s denial of a motion to reopen a removal proceeding.  "Nothing changes when the Board denies a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling.   Under the INA, as under our century-old practice, the reason for the [Board]’s denial makes no difference to the jurisdictional issue. Whether the [Board] rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision." 

The Supreme Court noted that even if the Board additionally noted that it would not exercise its sua sponte authority to reopen a case, that did not deprive a federal court of its authority to review any other statutory ground invoked by a non-citizen when requesting reopening of his proceedings.  The Supreme Court left open the question of whether a federal court could properly decline review on jurisdictional ground the Board's refusal to exercise its sua sponte authority to reopen proceedings.

The full text of Mata v. Lynch can be found here: http://www.supremecourt.gov/opinions/14pdf/14-185_i4dk.pdf

First Circuit Addresses Equitable Tolling and Jurisdictional Issues for Motions to Reopen

Earlier this week, the First Circuit issued a decision in Wan v. Holder.  Wan challenged the denial of a motion to reopen.  The Board of Immigration Appeals (Board) denied the motion, in part, because Wan had not exercised the due diligence necessary to toll the 180-day filing deadline for an exceptional circumstances motion to reopen.  On appeal to the circuit, Wan challenged this finding, and also asserted that the Board engaged in impermissible fact-finding.

The First Circuit determined that it lacked jurisdiction to determine if the Board had engaged in impermissible fact-finding because Wan had not properly exhausted this argument.  Instead, Wan needed to raise this argument in a motion to reconsider before the Board, and thus, give the Board the opportunity to consider the issue.  In so holding, the court joined the Fifth and Tenth Circuit's decisions on this issue.

Turning to Wan's request to toll the filing deadline for a motion to reopen, the court noted that whether the doctrine of equitable tolling applied in immigration proceedings remained an open question.  It declined to decide the issue, finding that in any event, Wan had not exercised the requisite due diligence to invoke the equitable tolling doctrine.

Interestingly, the court proceeded to issue a decision in this case, despite a motion informing the court of Wan's intention to apply for administrative relief under the newly-announced Deferred Action for Parental Accountability (DAPA) program.  

The follow text of the decision can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-1893P-01A.pdf