Case No. 18-776 | 5th Cir.
Preview by Sean Lowry, Online Editor*
In two consolidated cases, the Court will consider whether a request for equitable tolling, as it applies to statutory motions to reopen immigration removal proceedings, is judicially reviewable by an appellate court as a “question of law.”
Mr. Ovalles, a lawful permanent resident, was deported in 2004 after being convicted of an aggravated felony (attempted possession of drugs), pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1227. In 2007, Mr. Ovalles moved to reopen his immigration proceedings after the Court held in Lopez v. Gonzales, 549 U.S. 47, 55–58 (2006), that attempted drug possession convictions were not aggravated felonies. Citing 8 C.F.R. § 1003.2(d), the Board of Immigration Appeals (“BIA”) denied Mr. Ovalles’ motion because he had already physically departed the United States.
In 2017, Mr. Ovalles moved to reopen his case again by citing Fifth Circuit decisions issued in 2012 and 2016 that held that the physical departure bar in § 1003.2 did not apply to motions to reopen and allowed equitable tolling of statutory deadlines. “Equitable tolling” is the principle that a statute of limitations will not bar a claim if the plaintiff, despite reasonable care and diligent efforts, did not discover the injury until after the statute of limitations period expired. The BIA again rejected his motion, finding that he did not demonstrate the requisite due diligence to warrant equitable tolling because he waited eight months after the 2016 decision before he decided to seek relief. On appeal to the Fifth Circuit, Ovalles argued that the BIA abused its discretion when arriving at its finding. The Fifth Circuit denied Ovalles’ appeal, saying that the court lacked jurisdiction to review whether an alien acted diligently in attempting to reopen his deportation proceedings for the purposes of equitable tolling because it was a pure question of fact.
Counsel for Mr. Ovalles argues that there is a circuit split on whether appellate courts should be able to review questions of due diligence for equitable tolling purposes because they are mixed questions of law and fact. The Ninth Circuit exercises jurisdiction on this question, while the Fourth and Fifth Circuits do not. The U.S. Solicitor General, representing the respondent, Attorney General William Barr, argues that due diligence for equitable tolling purposes is a factual question, and, even if it is a mixed question of law and fact, Mr. Ovalles did not demonstrate that extraordinary circumstances stood in his way of timely filing his motion to reopen his immigration proceedings.
*Sean Lowry is a 3LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.