Summary
The Fifth Circuit held that the BIA did not abuse its discretion in denying Guerrero’s untimely motion to reopen removal proceedings, because his reliance on an uncertain legal landscape—specifically, the lack of binding precedent on equitable tolling before *Lugo-Resendez*—did not constitute an extraordinary circumstance warranting equitable tolling. On remand from the Supreme Court, which held that due diligence for equitable tolling is a “question of law” reviewable under 8 U.S.C. § 1252(a)(2)(D), the court reaffirmed that equitable tolling requires both reasonable diligence and an extraordinary circumstance beyond the petitioner’s control. The petition for review was denied.
Topics
Practice areas
Questions Presented
- Whether the BIA erred in denying equitable tolling for the untimely motion to reopen
- Whether the BIA erred in determining that Guerrero failed to file the required special motion seeking relief under former § 212(c)
Holdings
- The BIA did not err in denying equitable tolling because facing an uncertain legal landscape is not an extraordinary circumstance warranting equitable tolling.
Key quotations
“[I]n this kind of immigration case (involving [an alien] who [is] removable for having committed certain crimes), a court of appeals may consider only 'constitutional claims or questions of law.' 8 U.S.C. § 1252(a)(2)(D). The issue before us is, as we have said, whether the statutory phrase 'questions of law' includes the application of a legal standard to undisputed or established facts. If so, the Fifth Circuit erred in holding that it 'lack[ed] jurisdiction' to consider [petitioner's] claim[ ] of due diligence for equitable tolling purposes. We conclude that the phrase 'questions of law' does include this type of review, and the Court of Appeals was wrong to hold the contrary.” (at 2)
“the deadline for filing a motion to reopen . . . is subject to equitable tolling. But, equitable tolling is warranted only if petitioner establishes (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” (at 5)
“Facing an uncertain outcome based upon an uncertain legal landscape is not an extraordinary circumstance warranting equitable tolling.” (at 6)
Factual background
Pedro Guerrero-Lasprilla, a native of Colombia, was admitted to the United States in 1986 and ordered removed in 1998 after felony drug convictions. In September 2016, he filed a motion to reopen his removal proceedings, citing Matter of Abdelghany. The immigration judge denied the motion as untimely and found no equitable tolling, and the BIA affirmed.
Procedural history
The Fifth Circuit originally dismissed the petition for review for lack of jurisdiction. The Supreme Court vacated and remanded, holding that the question of due diligence for equitable tolling is a question of law reviewable under 8 U.S.C. § 1252(a)(2)(D). On remand, the Fifth Circuit considered the merits of the petition.