Ferreira Toledo v. Holder, 467 F. App'x 723

Toledo, a Brazilian native, has lived in the United States since age six on a nonimmigrant visa.
She has an approved 1-130 based on marriage to a U.S. citizen and holds a college education with no criminal record.
Toledo has never returned to Brazil and is not fluent in Portuguese, factors relevant to her eligibility and adjustment considerations.
Her case was reviewed under the Morton memo framework, indicating potential satisfaction of certain administrative relief criteria for relief from removal.
The BIA denied Toledo’s motion to reopen removal proceedings to apply for adjustment of status.
The petition for review challenges the BIA’s denial, raising an equitable tolling claim that time limits should be tolled given diligence and lack of opportunity to file earlier.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Toledo properly exhausted equitable tolling.	Toledo argues tolling was raised in the reply brief, properly exhausting.	The BIA allegedly did not address tolling and the issue was not properly exhausted.	Petition granted on exhaustion grounds; remand for tolling determination.
Whether the BIA abused its discretion by not addressing equitable tolling.	The BIA should consider tolling as raised in the reply brief.	The BIA’s failure to address tolling constitutes an abuse when denying the motion to reopen.	Abuse found; remand for tolling ruling.
Whether remand for consideration of equitable tolling is appropriate.	Toledo is entitled to equitable tolling consideration on remand.	No tolling discussion occurred at BIA level; case should be decided without tolling.	Remanded to address tolling in the first instance.

Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002) (review of BIA abuse of discretion for motions to reopen)
Brezilien v. Holder, 569 F.3d 403 (9th Cir. 2009) (exhaustion shown when issue raised in final BIA brief)
Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004) (exhaustion via mentioning issue in BIA briefing)
Aden v. Holder, 589 F.3d 1040 (9th Cir. 2009) (exhaustion via brief discussion of issue)
Singh v. Gonzales, 416 F.3d 1006 (9th Cir. 2005) (remand when BIA denied without addressing tolling)