Background
Igor Popov, a native and citizen of Russia and former lawful permanent resident, sought review of a Board of Immigration Appeals order. The underlying immigration judge had denied Popov’s motion to reopen his removal proceedings as untimely. Popov was ordered removed in January two thousand fifteen based on convictions for crimes of moral turpitude but did not move to reopen until more than nine years later in two thousand twenty-four.
The court’s reasoning
The court applied the abuse of discretion standard to review the denial of the motion to reopen. Under Ninth Circuit precedent, a motion to reopen must generally be filed within ninety days of a final order of removal. Popov’s motion was timely only if equitably tolled. To establish equitable tolling, a petitioner must prove they pursued their rights diligently and that an extraordinary circumstance prevented timely filing. The court found the agency did not err in determining Popov lacked diligence. Popov did not challenge his removal in two thousand fifteen or until two thousand twenty-four. Although Popov claimed he lacked financial resources and was located in Russia, the record showed no evidence of steps taken to challenge his conviction or removal order. The court also rejected the argument regarding the agency’s sua sponte authority, noting that review is limited to situations where the agency erroneously believed the law forbade it from exercising discretion.
What it means going forward
The decision affirms that immigration judges and the Board of Immigration Appeals have broad discretion in denying untimely motions to reopen, and petitioners must provide concrete evidence of diligence and extraordinary circumstances to overcome the ninety-day deadline.