918 F.3d 209
1st Cir.2019Background
- Tay‑Chan, a Guatemalan national who entered the U.S. without inspection, conceded removability and sought withholding of removal; IJ found his testimony credible but not on account of a protected ground.
- The BIA affirmed the IJ’s denial of withholding; final BIA order issued April 14, 2011.
- Nearly seven years later (April 3, 2018) Tay‑Chan filed a motion to reopen, alleging ineffective assistance of counsel at the 2009 hearing (language barrier, failure to prepare, and misunderstanding about confidentiality of testimony).
- The motion to reopen was statutoryly untimely (90‑day deadline) and Tay‑Chan requested equitable tolling based on ineffective assistance.
- The BIA denied the motion as time‑barred and declined to equitably toll, finding no due diligence and no persuasive explanation for the nearly seven‑year delay.
- The First Circuit affirmed, holding the BIA did not abuse its discretion in denying the untimely motion and refusing equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion in denying an untimely motion to reopen | Tay‑Chan: motion should be reopened because ineffective assistance of counsel prevented timely filing and knowledge of the claim | Government/BIA: motion was filed ~7 years late; no statutory exception; equitable tolling not warranted because petitioner lacked diligence | Affirmed — no abuse of discretion in denying the untimely motion |
| Whether equitable tolling applies to excuse the 90‑day filing deadline | Tay‑Chan: due to counsel’s ineffective assistance and language barrier, he could not know or act earlier and filed within ~30 days of learning of the defect | BIA: petitioner failed to show due diligence during the long intervening period; unexplained delay defeats tolling | Affirmed — equitable tolling denied for lack of due diligence |
| Whether alleged ineffective assistance of counsel excuses delay even if later discovered | Tay‑Chan: discovery of ineffective assistance upon consulting new counsel justified reopening | BIA/Gov: even assuming ineffective assistance occurred, petitioner still failed to act diligently after that event | Affirmed — failure to show diligences allows denial even if ineffective assistance occurred |
| Whether asylum claim is properly before the court | Tay‑Chan: appellate brief mentions asylum | Respondent: asylum was not pressed below and IJ found asylum unavailable; not raised to BIA | Court: not preserved for review; asylum claim not addressed on merits |
Key Cases Cited
- Pineda v. Whitaker, 908 F.3d 836 (1st Cir. 2018) (motions to reopen are disfavored; equitable tolling requires diligence)
- Neves v. Holder, 613 F.3d 30 (1st Cir. 2010) (equitable tolling requires diligence and extraordinary circumstances)
- Meng Hua Wan v. Holder, 776 F.3d 52 (1st Cir. 2015) (BIA’s tolling/diligence finding reviewed for abuse of discretion; lack of action after alleged ineffective assistance fatal)
- Guerrero‑Santana v. Gonzales, 499 F.3d 90 (1st Cir. 2007) (equitable tolling is rare; failure to exercise due diligence defeats tolling)
- Gyamfi v. Whitaker, 913 F.3d 168 (1st Cir. 2019) (assumed, without deciding, that motion-to-reopen deadline may be subject to equitable tolling)