Admilson Silverio-Da Silva v. Loretta Lynch, 675 F. App'x 487

Petitioner Admilson Silverio-Da Silva, a Brazilian national, sought reopening of his 2004 removal proceedings via a 2013 motion to reopen.
The IJ held the motion untimely under the 90-day deadline in 8 U.S.C. § 1229a(c)(7)(C)(i) and, relying on Ramos‑Bonilla, concluded equitable tolling was not available; the IJ alternatively ruled equitable tolling would not be warranted on the facts (language-stipulation and nine-year delay).
The BIA agreed the motion was untimely and cited Ramos‑Bonilla to deny equitable tolling; it also approved portions of the IJ’s alternative merits analysis but ambiguously framed that analysis as addressing reopening rather than equitable tolling.
After the BIA decision, the Supreme Court in Mata clarified that Ramos‑Bonilla’s reading of equitable tolling was incorrect and instructed courts to consider equitable tolling doctrines; this Court in Lugo‑Resendez held equitable tolling is available for the § 1229a(c)(7)(C)(i) deadline.
Because the BIA’s reasoning is unclear and its denial rested on precedent superseded by Mata and Lugo‑Resendez, the Fifth Circuit remanded to the BIA to reconsider Silverio‑Da Silva’s equitable tolling claim in light of the intervening authority.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether equitable tolling is available to excuse the 90‑day filing deadline for motions to reopen under § 1229a(c)(7)(C)(i)	Silverio‑Da Silva argued equitable tolling should apply to his untimely motion	IJ and BIA relied on Ramos‑Bonilla to say equitable tolling is not available	Court remanded for BIA to reconsider equitable tolling in light of Mata and Lugo‑Resendez
Whether, on the merits, equitable tolling is warranted given procedural facts (Portuguese stipulation, nine‑year delay)	Silverio‑Da Silva contended he was entitled to tolling despite those facts	IJ found the stipulation and long delay defeated diligence and due process claims	BIA relied on IJ’s alternative reasoning but its adoption was ambiguous; remand needed for clarification
Whether the BIA abused its discretion in denying the motion to reopen under current precedent	Silverio‑Da Silva argued the BIA’s reliance on Ramos‑Bonilla is no longer controlling	Government defended BIA denial based on existing BIA/IJ findings	Court found intervening precedent undermines the BIA’s basis and remanded for reconsideration
Whether remand is appropriate when intervening Supreme Court and circuit precedent change governing law	Silverio‑Da Silva urged remand for application of new standards	Government implicitly opposed reopening under prior framework	Court held remand appropriate for limited purpose to apply Mata and Lugo‑Resendez

Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (standard of review for BIA motions to reopen)
Barrios‑Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014) (abuse‑of‑discretion standards for BIA decisions)
Gomez‑Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (reviewing IJ decisions that inform BIA rulings)
Ramos‑Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008) (previously held equitable tolling not available for § 1229a(c)(7)(C)(i))
Mata v. Lynch, 135 S. Ct. 2150 (2015) (Supreme Court clarified equitable tolling applies to the § 1229a(c)(7)(C)(i) deadline)
Lugo‑Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) (Fifth Circuit applied Mata and held equitable tolling is available for the § 1229a(c)(7)(C)(i) deadline)
Kane v. Holder, 581 F.3d 231 (5th Cir. 2009) (remand may be appropriate when intervening precedent undermines BIA decisions)
Arce‑Vences v. Mukasey, 512 F.3d 167 (5th Cir. 2007) (same principle regarding remand after change in law)