986 F.3d 268
3d Cir.2021Background
- Emerald Nkomo, a lawful permanent resident, was convicted in 2017 of conspiracy to commit wire fraud (an aggravated felony) and placed in removal proceedings.
- While proceedings were pending, Nkomo’s U.S. citizen husband filed an I-130 on her behalf, but USCIS delayed scheduling his interview for about 18 months.
- The immigration judge granted a continuance to allow adjudication of the I-130, but the BIA issued a final removal order before USCIS completed the I-130; USCIS only granted the I-130 after Nkomo filed a mandamus action.
- After the I-130 approval, Nkomo moved to reopen to seek an INA § 212(h) waiver, arguing changed circumstances and exceptional delay by the government prevented timely filing (i.e., equitable tolling).
- The BIA denied the motion as untimely and stated it lacked authority to grant relief solely on equitable or humanitarian grounds; Nkomo petitioned for review.
Issues
| Issue | Nkomo's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Nkomo exhausted an equitable-tolling claim before the BIA | Her notice of appeal and motion for reopening relying on "changed circumstances" and factual allegations about USCIS delay put the BIA on notice of an equitable-tolling claim | She failed to explicitly raise "equitable tolling" before the BIA, so the claim is unexhausted | Court held exhaustion satisfied—Nkomo’s filings put the BIA on notice |
| Whether the BIA considered equitable tolling sua sponte | Even if she did not expressly plead it, the BIA’s opinion addressed exceptions and equities, so it considered the issue | The BIA did not actually address equitable tolling on the merits | Court found the BIA suggested it lacked authority and therefore erred; remand required for merits consideration |
| Whether the BIA has authority to equitably toll the motion-to-reopen deadline | BIA can equitably toll the ninety-day deadline for motions to reopen based on equitable principles | BIA claimed it lacked authority to grant relief solely on equitable/humanitarian grounds | Court held the BIA does have authority to equitably toll and must consider the claim on the merits |
| Appellate jurisdiction given aggravated-felony conviction | N/A (Nkomo raises questions of law) | Government invoked limits on review for aggravated-felony removals | Court retained jurisdiction to review legal questions (equitable tolling is a question of law) |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (Supreme Court decision on defective notice to appear and jurisdictional effects)
- Holland v. Florida, 560 U.S. 631 (equitable tolling standard: diligence and extraordinary circumstances)
- Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (equitable-tolling questions as reviewable questions of law for motions to reopen)
- Alzaarir v. Att’y Gen., 639 F.3d 86 (equitable tolling applies to motions to reopen)
- Lin v. Att’y Gen., 543 F.3d 114 (BIA’s sua sponte consideration can satisfy exhaustion when it issues substantive discussion)
- Mata v. Lynch, 576 U.S. 143 (jurisdiction over BIA denial of motion to reopen)