Motions to reopen are a protective instrument designed to ensure proper and lawful disposition of removal proceedings. Motions to reopen may be particularly crucial for those who have been issued with an order of deportation and must leave the United States. Usually, they are the only way to redress claims of wrongful removals, such as ineffective assistance of counsel, changes in the law, and newly discovered facts.
However, there are times and number limits that an immigrant has to be aware of. The Immigration and Nationality Act imposes that a motion to reopen removal proceedings has to be filed within 90 days from the day of entry of a final administrative order of removal and that the immigrant can file only one motion. Still, there are certain exceptions to these limitations. If motions to reopen immigration proceedings is filed outside of the 90 days, petitioners may claim that the motion should be considered timely and/or not number suspended under the doctrine of equitable tolling.
Equitable tolling is a principle related to which a statute of limitations will allow a claim if the alien does not discover the circumstances giving rise to the claim until after the filing deadline has passed. Courts have recognized the importance of this legal postulate in promoting access to a fair and just legal system. Its effect can be described as ‘stopping the clock up upon one event, and restart it upon another.’
The implications of equitable tolling can be complicated. This may be the case when the limitation of time and numbers of motions will determine whether the Immigration Judge or Board of Immigration Appeals will exercise jurisdiction, or if a circuit court will review the BIA’s decision.
There are two requirements of equitable tolling:
- the noncitizen has been pursuing rights diligently;
- extraordinary circumstance stood in the way:
- Ineffective assistance of counsel;
- Deception, Fraud, or Error Other (misinformation provided by government agents, or other circumstances).
Generally, equitable tolling requests a showing of “due diligence” during the period a person seeks to have tolled. For instance, a petitioner will exercise due diligence if he or she reasonably relied on an “unscrupulous immigration consultant” who provided “faulty and ineffective representation.” Contrary, the petitioner will not exercise due diligence after learning his case had been denied because he waited fourteen months before consulting new counsel.
After the characteristics mentioned above, it is necessary to stress out that courts of appeals have different stands on how to apply equitable tolling.
Here are some of the three main standpoints:
- The alien should not be left in the legal gap if he or she missed the filing deadline.
- As an exception to the rule, equitable tolling should be used only in exceptional circumstances.
- The circuits have criticized plaintiff who wait months to file their claims and then try to invoke equitable tolling.
On the other side of the division, the Circuits have stressed the plain meaning of tolling to endorse the bright-line approach.
Moreover, although the Board of Immigration Appeals has not addressed whether the motion to reopen the deadline is subject to tolling, every court of appeals that have addressed the issue in a published decision has found that tolling applies if a person acted diligently.