Susie Eskilian, a native of Soviet Armenia who immigrated to the U.S. as an infant, was ordered removed in 2011 based on a grand theft conviction. However, she was not deported because Armenia refused to accept individuals born during the Soviet era, rendering Eskilian 'stateless.' She remained in the U.S. under a supervision order with work authorization for seven years. In June 2018, Eskilian was notified that Armenia had begun accepting individuals born in the Soviet era, placing her at immediate risk of removal. She promptly retained counsel, successfully vacated her conviction in May 2019, and filed a motion to reopen her removal proceedings. The Immigration Judge denied the motion, and the BIA dismissed a subsequent motion based on ineffective assistance of counsel, concluding Eskilian lacked due diligence because she waited over two years after the relevant California statute became effective to seek vacatur. The BIA failed to account for the fact that Eskilian was unaware of the removal risk until 2018.
The Ninth Circuit held that the BIA employed the wrong diligence standard. The court reasoned that equitable tolling requires 'reasonable diligence,' not 'maximum feasible diligence,' and must be assessed in light of the petitioner's particular circumstances. The court established a specific rule for stateless individuals born in the Soviet era: it is reasonable to expect them to begin challenging removability only once they learn they are no longer 'stateless' and can be removed to a country. The court rejected the government's argument that Eskilian should have annually checked with an attorney to see if her status might change while she was deemed stateless and not under immediate threat of removal. The court found Eskilian acted diligently by obtaining counsel within two months of learning of the risk, securing the vacatur of her conviction, and filing the motion to reopen shortly thereafter. Because Eskilian acted with due diligence, the BIA also abused its discretion in finding she suffered no prejudice from her counsel's failure to argue diligence in the first motion.
The petition for review is granted, the BIA's decision is vacated, and the case is remanded for further proceedings consistent with the Ninth Circuit's opinion. This ruling limits the BIA's ability to deny motions to reopen based on time delays for stateless individuals who were previously deemed unremovable. It establishes that the clock for due diligence starts when the individual learns they are subject to removal, not when a relevant statute becomes effective or when they might theoretically have sought legal advice while stateless.
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