Medina v. Whitaker, 913 F.3d 263

Background

Medina, a Guatemalan national, was placed in removal proceedings in 2007 and initially sought asylum, withholding, and CAT protection; his first counsel withdrew the asylum and withholding claims in 2011.
The IJ denied cancellation of removal and granted 60 days voluntary departure in October 2011; Medina appealed to the BIA.
The BIA dismissed the appeal on October 23, 2012, ordered removal, and Medina did not depart or seek further judicial review.
In August 2017 (nearly five years after the BIA order), Medina filed a motion to reopen alleging ineffective assistance by his first counsel for withdrawing asylum/CAT claims and asked for equitable tolling of the 90-day filing deadline.
The BIA denied the motion as untimely, concluding Medina failed to show due diligence required for equitable tolling; it also declined to reopen sua sponte.
Medina petitioned for review; the First Circuit considered whether the BIA abused its discretion in denying equitable tolling and concluded it did not.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether equitable tolling can save a motion to reopen filed nearly five years after final removal order	Medina: counsel's ineffective assistance prevented timely filing; he pursued relief when he learned and complied with Lozada requirements, so tolling should apply	Gov't: motion filed well beyond 90-day limit; Medina did not pursue his claim with requisite diligence and failed to fill timeline gaps	Held: Even assuming tolling is available, Medina failed to show the due diligence required; BIA did not abuse discretion in denying tolling
Whether Medina exercised due diligence to justify tolling	Medina: asserted he stayed in touch with attorneys and only learned of ineffective assistance later	Gov't: record shows notice of potential ineffective assistance as early as March 2012; affidavit insufficient and left long gaps	Held: Medina’s intermittent affidavit lacked specific continuous diligence and left unexplained gaps; not diligent enough for tolling
Whether BIA should exercise sua sponte reopening authority	Medina: sought reopening generally	Gov't: discretionary decision not to reopen sua sponte	Held: BIA’s refusal to reopen sua sponte was unchallenged and not reviewed; petition does not contest that decision
Whether BIA abused discretion in applying circuit precedent on tolling/diligence	Medina: relied on out-of-circuit favorable rulings	Gov't: First Circuit requires specific evidence of continuous diligence; out-of-circuit cases not controlling	Held: BIA’s application of First Circuit standards (requiring specific details and no gaps) was not an abuse of discretion

Key Cases Cited

Mazariegos v. Lynch, 790 F.3d 280 (1st Cir. 2015) (standard of review for motions to reopen)
Chedid v. Holder, 573 F.3d 33 (1st Cir. 2009) (equitable tolling prerequisites and sparing invocation)
Pineda v. Whitaker, 908 F.3d 836 (1st Cir. 2018) (open question on availability of equitable tolling; diligence requirement)
Xue Su Wang v. Holder, 750 F.3d 87 (1st Cir. 2014) (elements for equitable tolling)
Neves v. Holder, 613 F.3d 30 (1st Cir. 2010) (requirement to show continuous diligence and specific details)
Jobe v. INS, 238 F.3d 96 (1st Cir. 2001) (equitable tolling should be sparingly invoked)
García v. Lynch, 821 F.3d 178 (1st Cir. 2016) (Lozada requirements for ineffective-assistance motion to reopen)
Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011) (contrasting out-of-circuit authority recognizing diligence where motion filed promptly after discovery)
Gordillo v. Holder, 640 F.3d 700 (6th Cir. 2011) (contrasting out-of-circuit authority where petitioners diligently pursued relief after repeated advice no rights existed)