Ben Georges Rayes v. Pamela Bondi

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 19, 2026
• Docket: 25-3378
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0088n.06

Case No. 25-3378

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 19, 2026 BEN GEORGES RAYES, ) KELLY L. STEPHENS, Clerk Petitioner, ) ) v. ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES PAMELA BONDI, Attorney General, ) BOARD OF IMMIGRATION ) APPEALS Respondent. ) ) OPINION

Before: SUTTON, Chief Judge; GRIFFIN and NALBANDIAN, Circuit Judges.

SUTTON, Chief Judge. Ben Rayes entered the United States from Iraq in 1979, applied

for citizenship, and became a citizen in 2010. In 2013, he was convicted of an aggravated crime

of violence, which led to a five-year prison sentence. In 2015, the district court revoked his

citizenship through a plea agreement, and the Department of Homeland Security, after a round of

removal proceedings, removed him to Iraq in 2019. Rayes filed two motions to reopen his case

with the Board of Immigration Appeals, each unavailing. In 2024, Rayes filed a third motion with

the Board to reopen his case. The Board denied the motion as untimely. We deny Rayes’s petition

for review with respect to his third motion.

I.

A native of Iraq, Rayes was admitted to the United States as a refugee in June 1979. He

received lawful permanent status in March 1981 and citizenship in December 2010. No. 25-3378, Rayes v. Bondi

The naturalization process required Rayes to affirm that he had not knowingly committed any

crime for which he had avoided arrest. But four years before Rayes became naturalized, he took

part in a fraudulent scheme to set fire to a residence and collect the insurance proceeds. The

transgression came to light, and, in February 2013, a district court convicted Rayes of using fire to

commit fraud in 2006 in violation of 18 U.S.C. § 844(h)(1). It sentenced him to five years. In

October 2015, the court also revoked Rayes’s citizenship in connection with the plea agreement

between him and the government.

In June 2016, an immigration judge concluded that the felony conviction rendered Rayes

removable as an “alien who is convicted of an aggravated felony at any time after admission.”

8 U.S.C. § 1227(a)(2)(A)(iii). Then Rayes sought to defer his deportation under the Convention

Against Torture, arguing that he faced persecution from ISIS because he is a Chaldean Christian.

But in December 2016, the Board of Immigration Appeals denied his request because Rayes could

not prove that the Iraqi government would be responsible for any such threats. Rayes did not

petition this court for review of the Board’s decision.

In June 2017, Rayes filed his first motion to reopen the Board proceedings, claiming that

changed country conditions warranted relief. That was six months after the Board entered its final

order of removal and thus three months late. See 8 U.S.C. § 1229a(c)(7)(C)(i). The Board rejected

the motion, reasoning that Rayes had not shown any material changes in Iraq since his final hearing

in June 2016. Rayes did not file a petition for review.

In May 2018, roughly 18 months after the Board entered its final order of removal, Rayes

filed a second motion to reopen based on changed country conditions, ineffective assistance of

counsel, and a change in law. The Board rejected the motion as untimely and number-barred and

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ruled that no statutory or equitable exception excused the late filing. Rayes did not file a petition

for review.

In December 2019, the government removed Rayes to Iraq, where he currently lives.

Rayes filed his third motion to reopen in October 2024. He argued that his aggravated

felony conviction, which he incurred while a naturalized citizen, should not require removal. The

Board denied the motion. Because an alien may file only one motion to reopen and must file it

within 90 days of the final order of removal, the Board found that Rayes’s third motion was both

number-barred and time-barred. See 28 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).

It also denied Rayes’s request for equitable tolling premised on a change in law given all of the

time—roughly eight years—that had passed since the Board’s final decision.

II.

On appeal, Rayes accepts the untimeliness of his motion to reopen but claims that the Board

should have accepted it based on equitable tolling. Rayes bears the burden of demonstrating that

he is entitled to equitable tolling, a form of relief frequently requested but infrequently granted.

Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011). He must show that he

acted with due diligence in pursuing his rights and that extraordinary circumstances prevented his

timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010); Barry v. Mukasey, 524 F.3d 721,

724 (6th Cir. 2008). Because even “intervening developments in the law . . . rarely constitute []

extraordinary circumstances,” this showing requires “some other special circumstance” beyond

“an applicable change in decisional law” to warrant relief. GenCorp, Inc. v. Olin Corp., 477 F.3d

368, 373 (6th Cir. 2007) (quotation omitted); see Njai v. Garland, 2022 WL 2903443, at *5–6 (6th

Cir. July 22, 2022). We review the Board’s denial of equitable tolling for abuse of discretion.

Camaj v. Holder, 625 F.3d 988, 991 (6th Cir. 2010).

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The first problem for Rayes turns on the sheer length of the delay he asks us to overlook.

By statute, a petitioner has 90 days to file one motion to reopen with the Board. 28 U.S.C.

§ 1229a(c)(7)(C)(i). That statutory regime is designed to bring finality to the process for

challenging removal, what the Supreme Court has referred to as a “strong public interest in

bringing litigation to a close.” INS v. Abudu, 485 U.S. 94, 107 (1988). In this instance, Rayes

asks permission to file a third motion to reopen nearly seven-and-a-half years after the initial

window closed. That would be a heavy lift even if he remained in the country, which he does not.

Cf. Holder v. Martinez Gutierrez, 566 U.S. 583, 594 (2012). A final order of removal must become

final at some point. That point was reached some time ago.

The second problem for Rayes is that his explanation for excusing this lengthy delay to

bring a third motion—new legal authority—does not in this instance establish the kind of

extraordinary circumstance that would justify equitable tolling. Petitioners have twice asked the

Sixth Circuit to allow untimely motions to reopen based on new caselaw, and we have twice

declined to do so. See Hernandez v. Bondi, 2025 WL 943710, at *2 (6th Cir. Mar. 28, 2025)

(reasoning that, “[e]ven assuming” that intervening precedent “was an exceptional circumstance,”

the alien failed to show due diligence and therefore was not entitled to equitable tolling); Njai,

2022 WL 2903443, at *6 (denying equitable tolling because the petitioner did not exercise due

diligence). We need not decide today when, if ever, a change in law amounts to the kind of

extraordinary circumstance that would equitably toll the statutory deadline to file a motion to

reopen because the seeds of this argument were in existence well before Rayes filed his third

motion.

The key decision in this area is Costello v. INS. 376 U.S. 120 (1964). It held that “[a]ny

alien” who “is convicted of two crimes involving moral turpitude” does not apply to an alien who,

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at the time of his conviction, was a citizen. Id. at 121 (quoting 8 U.S.C. § 1251(a)(4) (1964 ed.)).

The Court reached this conclusion based on the relevant statute’s use of the present tense, its lack

of a date limitation, and the rule of lenity. Id. at 126–28. For our purposes, the key point is that

this reasoning appeared in the U.S. Reports 50 years before Rayes’s final removal hearing before

an immigration judge. As he correctly acknowledged in his third motion to reopen, that decision

was “longstanding.” R.6-2 at 25. And as he showed in his second motion to reopen, he knew how

to use Costello because he invoked it as a ground for relief. Nothing, in short, prohibited Rayes

from arguing in his first motion to reopen within 90 days of the Board’s decision that he should

not be removed based on a felony conviction he incurred while a citizen.

A similar problem undermines his reliance on three out-of-circuit cases. As an initial

matter, neither we, nor apparently Rayes, are aware of any authority directing the Board to grant

equitable tolling based on out-of-circuit precedents. But even if we overlooked that point, Rayes

would run headlong into a hurdle of his own making. These out-of-circuit precedents came down

between November 2018 and August 2021. See Singh v. Attorney General, 12 F.4th 262 (3d Cir.

2021); Okpala v. Whitaker, 908 F.3d 965 (5th Cir. 2018); Hylton v. Attorney General, 992 F.3d

1154 (11th Cir. 2021). Rayes did not file his third motion to reopen until October 2024, over three

years from the most recent of those precedents. Given that a delay of even three months can doom

a bid for equitable tolling, Rayes’s three-year (at a minimum) delinquency in filing after these

intervening decisions severely undercuts his claim of diligence. Barry, 524 F.3d at 725; see also

Hernandez, 2025 WL 943710, at *2 (no equitable tolling because alien delayed filing “for another

12 months” after purported change in law); Slyusar v. Barr, 787 F. App’x 309, 315 (6th Cir. 2019)

(no equitable tolling because alien delayed filing “for over three years”).

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Nor does the pending existence of Castillo v. Bondi in the Sixth Circuit at the time of his

motion fix the problem. 140 F.4th 777 (6th Cir. 2025). To the extent that a change in law (plus

some other special circumstance) qualifies as an extraordinary circumstance, that change must

mark “a reversal of established adverse precedent.” GenCorp, 477 F.3d at 374. No such reversal

occurred. Before Castillo, the Sixth Circuit had not considered whether an “alien who is

convicted” of a crime included denaturalized aliens who had been citizens at the time of their

conviction. See 8 U.S.C. § 1227(a)(2)(A)(i)–(iv). Although a “party faced with a hoary

precedent [] might be forgiven for not challenging it,” Rayes “faced no obstacle that would have

prevented fresh review” of the denaturalization issue on appeal. GenCorp, 477 F.3d at 374. The

Board did not abuse its discretion in finding that Rayes failed to establish the kind of extraordinary

circumstances that would justify an eight-year delay in filing his third motion to reopen.

Rayes challenges this conclusion on three grounds, each unavailing. He first argues that

the Board’s precedent in Matter of Gonzalez-Muro, 24 I. & N. Dec. 472 (B.I.A. 2008) (per curiam),

foreclosed his challenge to removability based on his citizen status at the time of the conviction.

Gonzalez-Muro, it is true, permitted the removal of denaturalized aliens convicted of crimes while

a citizen. 24 I. & N. Dec. at 473. But Gonzalez-Muro does not bind the Sixth Circuit, and Rayes’s

decision not to appeal the Board’s final order of removal prevented us from assessing Gonzalez-

Muro. Rayes instead opted to request that the Board reopen his case, resting his argument on

potential persecution in Iraq, not his naturalized status at the time of the crime.

Rayes next claims that Williams v. Garland, 59 F.4th 620 (4th Cir. 2023), supports his

request for equitable tolling. The Fourth Circuit, it is true, found that Williams was diligent in

filing a motion to reopen following a change in law. Id. at 643. But the similarities between this

case and Williams show, if anything, Rayes’s lack of diligence. Williams, like Rayes, was

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removed; Williams, like Rayes, filed a facially untimely motion to reopen; Williams, like Rayes,

argued that equitable tolling should apply because of an intervening change in law. See id. at 624.

Yet Williams, unlike Rayes, moved to reopen a year after the favorable change in law and could

justify even that delay given his total lack of access to the internet. See id. at 641–42. Compare

that to Rayes’s three-year delay (at a minimum) and limited but demonstrated access to the internet.

Rayes thus has a greater delay to excuse and less cause to excuse that delay.

Rayes finally argues that the Board abused its discretion by failing to reopen his removal

proceedings under its so-called “sua sponte authority.” Guzman-Torralva v. Bondi, 154 F.4th 880,

884 (6th Cir. 2025). The Board’s power to engage in sua sponte reopening derives from its own

regulation. See 8 C.F.R. § 1003.2(a). This same regulation grants the Board “discretion to deny a

motion to reopen even if the moving party has made out a prima facie case for relief.” Id. Because

the Board has “unfettered discretion” whether to invoke its sua sponte authority, its decision not

to do so is “not subject to judicial review.” Herrera v. Bondi, 162 F.4th 617, 622 (6th Cir. 2025)

(quotation omitted). This challenge thus also fails.

For these reasons, we deny the petition for review.