Denial of Brazilian Citizen's Petition for Review of BIA's Denial of Motion to Reopen

By FindLaw Staff on July 21, 2010 | Last updated on March 21, 2019

Neves v. Holder, 07-1091, concerned a Brazilian citizen's petition for review of the BIA's denial of his second motion to reopen proceedings, on remand from the Supreme Court for reconsideration in light of Kucana v. Holder.  In denying the petition, the court held that jurisdiction exists to review the BIA's decision to deny equitable tolling of the time and number limitations governing petitioner's second motion to reopen but not to review the BIA's refusal to exercise its sua sponte authority to reopen.  The court also held that, even assuming arguendo that equitable tolling of these requirements is available, the BIA did not abuse its discretion in denying the motion, as BIA found that petitioner failed to show he had exercised due diligence in pursuing, reopening, and substantial evidence supported that factual determination.

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