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5th Cir. Applies Equitable Tolling to Reopening Removal Proceedings

By Jonathan R. Tung, Esq. on August 08, 2016 | Last updated on March 21, 2019

In what looks to be a somewhat rare display of compassion (by immigration standards, that is), the Fifth Circuit remanded an immigration case back to the lower tribunals with the admonishment not to apply certain legal principles "too harshly." Whoa.

Immigration advocacy groups have applauded the decision, calling it a recognition of the realities facing immigrants who may be "poor, uneducated, unskilled in the English language, and effectively unable to follow developments in the American legal system--much less read and digest complicated legal decisions."

Less Than a Gram

The petitioner in this case, Sergio Lugo-Resendez, was admitted as a permanent lawful resident from Mexico in 1973. In 2002, he pleaded guilty in Texas state court to a felony count of "possession of a controlled substance less than one gram." After serving time, removal proceedings were initiated against him. He did not challenge these proceedings and returned to Mexico.

More than a decade later, he challenged his removal under 8. U.S.C. sec. 1229a(c)(7), a statutory right to re-open proceedings. Lugo-Resendez asserted that there had since been a change in the law which was directly on point. The Supreme Court had earlier found, in Lopez v. Gonzalez, that simple possession was not an aggravated felony under the Immigration and Nationality Act. Lugo-Resendez thus sought to have his removal dismissed or reversed as a result of that decision.

Circuit Agrees

The immigration judge and the Board of Immigration Appeals had earlier bought into the idea that Lugo-Resendez had brought too little, too late and that he had not brought his statutory right to appeal under the law within the required 90-day deadline. Besides, by the time he'd discovered the change in the law, he was already living in Mexico for a number of years.

But the Fifth was apparently more generous. It noted in its opinion that when an immigrant files a statutory motion to reopen his or her case, the Board cannot simply ignore the merit of the arguments simply because a deadline has passed. Further, the Fifth Circuit underscored that, consistent with the Lynch case, equity demands a tolling of the statutory deadline in cases like Lugo-Resendez's.

According to the American Immigration Council, the Fifth Circuit joins nine other appellate courts that have held that immigration courts may toll statutory limitations when equity demands it.

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