Summary
The Second Circuit granted Leonel Pinilla Perez’s petition challenging the Board of Immigration Appeals’ denial of his untimely motion to reopen removal proceedings and remanded for further consideration. The court held that the BIA provided insufficient reasons for finding that Pinilla lacked reasonable diligence in seeking equitable tolling after changes in New York marijuana law and intervening federal case law. The court dismissed as moot his separate petition challenging the denial of his motion to reconsider.
Topics
Practice areas
Questions Presented
- Whether the BIA abused its discretion by denying equitable tolling of the ninety-day deadline for filing a motion to reopen based only on the approximately two-year period between New York's marijuana-law revision and Pinilla's filing.
- Whether reasonable diligence requires a removed noncitizen seeking to reopen based on an intervening change in law to take steps to file before the legal change occurs.
- Whether the petition challenging the BIA's denial of reconsideration became moot after the court granted and remanded the petition challenging denial of reopening.
Holdings
- A removed petitioner seeking equitable tolling to file a motion to reopen based on an intervening change in law is not required to take steps to file the motion before the legal change occurs.
- The BIA must assess reasonable diligence under the totality of the circumstances, focusing on what could reasonably have been expected of a removed petitioner living abroad, rather than applying a per se temporal rule or requiring maximum feasible diligence.
- The BIA abused its discretion by denying equitable tolling based only on Pinilla's approximately two-year delay after New York revised its marijuana laws, without explaining what diligence test it applied or addressing his circumstances and conduct.
- The petition challenging the BIA's denial of reconsideration was dismissed as moot after the court granted the petition challenging denial of reopening and remanded for further consideration.
Key quotations
“Because a petitioner cannot reasonably be expected to act on a change in law that has yet to happen, we hold that the reasonable diligence standard does not oblige a petitioner who has been removed from the United States to take steps to file a motion to reopen based on an intervening change in law before the change takes place.” (at 9)
“To determine whether equitable tolling is appropriate, the BIA should avoid applying a “per se” temporal rule, Wang v. Bd. of Immigr. Appeals, 508 F.3d 710, 715 (2d Cir. 2007), and must instead consider whether the petitioner “act[ed] as diligently as reasonably could have been expected” to file his motion under the totality of the circumstances” (at 10-12)
“The agency’s stated justification is not the “minimum level of analysis” that we require “if judicial review is to be meaningful.”” (at 13)
Factual background
Pinilla Perez, a Panamanian national and lawful permanent resident since 1990, pleaded guilty in New York to attempted sale of cocaine in 1993 and to multiple fifth-degree marijuana-possession offenses between 2000 and 2009. He was placed in removal proceedings in 2009 and removed to Panama in 2011. New York later repealed the marijuana-possession provision and authorized vacatur of convictions for that offense; Pinilla claimed that he learned of the legal change in March 2021, promptly consulted counsel, and filed a motion to reopen, arguing that the vacated marijuana convictions and intervening law undermined the grounds for his removal.
Procedural history
The BIA denied Pinilla Perez's untimely motion to reopen, concluding that he had not exercised the requisite due diligence to obtain equitable tolling of the ninety-day filing deadline. After this Court decided United States v. Minter, Pinilla moved the BIA to reconsider; the BIA denied that motion as well. The Second Circuit consolidated the petitions, granted review of the motion-to-reopen order, remanded for further consideration, and dismissed the petition concerning reconsideration as moot.
Remand instructions
The BIA must reconsider Pinilla's motion to reopen consistently with the opinion, applying a totality-of-the-circumstances reasonable-diligence inquiry and providing sufficient reasons for its decision. The petition concerning the denial of reconsideration in No. 24-3151 was dismissed as moot.