Background
The petitioner was ordered removed after a 1997 Virginia conviction that immigration authorities treated as both an aggravated felony and a crime involving moral turpitude. The Board of Immigration Appeals affirmed the removal order in 2004, and the petitioner did not seek judicial review then. In 2025, after being detained for removal to Vietnam, he moved to reopen, arguing that later legal developments meant his conviction no longer made him removable and that equitable tolling should excuse the untimely filing. He also asked the Board to reopen sua sponte. The Board denied reopening as untimely and declined to reopen on its own motion.
The court’s reasoning
The Fourth Circuit said it had jurisdiction to review the denial of a motion to reopen, including the Board’s rejection of equitable tolling. Applying de novo review to the equitable-tolling issue, the court assumed that intervening judicial decisions can qualify as extraordinary circumstances, but held the petitioner still had to show diligence in pursuing his rights. The court concluded the Board committed no legal error in finding that the motion did not demonstrate diligence, emphasizing the lack of identified steps taken during the relevant period and distinguishing Williams v. Garland on both timing and circumstances. On the request for sua sponte reopening, the court said it did not need to resolve the full scope of jurisdiction over underlying legal errors because any mistake would be harmless. After briefing, Fourth Circuit precedent rejected the petitioner’s argument that his conviction fell outside the crime-involving-moral-turpitude ground, and the petitioner conceded removability on that basis, making remand pointless.
The Board committed no legal error in concluding the facts cited in petitioner’s motion to reopen did not warrant equitable tolling.
What it means going forward
The removal order remains in place, and the petitioner does not get reopening of his immigration case. The decision underscores that even when later case law may affect removability arguments, an untimely motion to reopen still requires a strong showing of diligence. It also shows that a claimed error in the Board’s sua sponte reopening analysis will not justify remand when later precedent makes the result inevitable.