Lima v. Blanche

Opinion

25-1143 Lima v. Blanche BIA

A062 342 230

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 8th day of July, two thousand twenty- 4 six. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 EUNICE C. LEE, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 WILLIAM CESAR MONTEIRO LIMA, 14 Petitioner, 15 16 v. 25-1143 17 NAC 18 TODD BLANCHE, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jeffrey B. Rubin, Esq., Rubin Pomerleau PC, 24 Boston, MA.

1 FOR RESPONDENT: Brett A. Shumate, Assistant Attorney General; 2 Sheri R. Glaser, Acting Assistant Director; 3 Joanna L. Watson, Senior Trial Attorney, 4 Office of Immigration Litigation, United 5 States Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a Board of 8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 9 DECREED that the petition for review is GRANTED. 10 Petitioner William Cesar Monteiro Lima, a native and citizen of Cape Verde, 11 seeks review of an April 4, 2025, decision of the BIA denying, as untimely, his 12 motion to reopen his removal proceedings based on vacatur of the convictions 13 underlying the agency’s determination of removability. In re Lima, No. A 062 342 14 230 (B.I.A. Apr. 4, 2025). We assume the parties’ familiarity with the underlying 15 facts and procedural history. 16 As the parties do not dispute that Lima’s motion to reopen, filed on 17 December 25, 2024, was untimely filed more than 90 days after the BIA’s entry of 18 a final order of removal on March 6, 2024, see 8 U.S.C. § 1229a(c)(7)(C)(i), the sole 19 issue before us is the BIA’s denial of equitable tolling. “We review the BIA’s 20 decision not to grant equitable tolling for abuse of discretion, asking whether there 21 is a reasonable basis for its decision.” Pinilla Perez v. Bondi, 166 F.4th 327, 333 (2d

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1 Cir. 2026) (quotation marks omitted). The BIA abuses its discretion “if it acts in 2 an arbitrary or capricious manner, or if its decision provides no rational 3 explanation, . . . or contains only summary or conclusory statements.” Poradisova 4 v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (quotation marks omitted). Reliance on 5 an error of law is also an abuse of discretion. Morgan v. Gonzales, 445 F.3d 549, 6 551–52 (2d Cir. 2006). 7 Equitable tolling is a doctrine designed to allow courts to “escape the evils 8 of archaic rigidity,” Pinilla Perez, 166 F.4th at 333–34 (quotation marks omitted), 9 and prevent injustice to a litigant who has “pursued his rights diligently,” but has 10 been prevented from timely action due to “some extraordinary circumstance,” 11 Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014). “[T]he diligence prong . . . covers 12 those affairs within the litigant’s control; the extraordinary-circumstances prong, 13 by contrast, is meant to cover matters outside [his] control.” Menominee Indian 14 Tribe of Wisconsin v. United States, 577 U.S. 250, 257 (2016). For example, “an 15 attorney’s failure to satisfy professional standards of care” may constitute 16 extraordinary circumstances. Holland v. Florida, 560 U.S. 631, 649 (2010). “The 17 diligence required for equitable tolling purposes is reasonable diligence . . . not 18 maximum feasible diligence.” Id. at 653 (quotation marks and citation omitted).

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1 To determine whether a litigant has exercised reasonable diligence, adjudicators 2 must conduct “an equitable, often fact-intensive inquiry,” considering “in detail” 3 a litigant’s efforts and particular situation. Id. at 653–54 (quotation marks 4 omitted). However, the litigant bears the burden of demonstrating circumstances 5 justifying equitable relief. See Pinilla Perez, 166 F.4th at 332. 6 With respect to motions to reopen removal proceedings, a movant must 7 exhibit diligence throughout the entire period he seeks to toll. See Iavorski v. INS, 8 232 F.3d 124, 134 (2d Cir. 2000). In other words, “where fraud or concealment . . . 9 prevents an individual from timely filing, equitable tolling . . . is permitted until 10 the fraud or concealment is, or should have been, discovered by a reasonable 11 person in the situation.” Id. Thus, a movant “is required to exercise due 12 diligence both before and after he has or should have discovered” the underlying 13 basis for reopening. Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (discussing 14 ineffective assistance of counsel in a removal proceeding). But reasonable 15 diligence does not require a movant to take steps to move for reopening “before . . . 16 he became entitled to relief.” Pinilla Perez, 166 F.4th at 333. And “[p]rinciples of 17 equity especially counsel in favor of tolling when it is evident that the basis for the 18 petitioner’s removal may now be invalid.” Id. at 334–35 (quotation marks and

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1 brackets omitted). 2 The diligence analysis only extends to when the movant reasonably should 3 have discovered the ineffective assistance. See Iavorski, 232 F.3d at 134. Where, 4 as here, a movant was misled about the immigration consequences of a criminal 5 conviction, the reasonable point to start assessing diligence is from service of the 6 notice to appear, at which point “a reasonable person in [the movant’s] position 7 would be put on notice of the error underlying his motion to reopen.” Bent v. 8 Garland, 115 F.4th 934, 942 (9th Cir. 2024). 1 The subsequent alteration of the 9 charge of removability appears irrelevant in this case, because all pertinent 10 convictions stem from the same plea proceeding at which the immigration 11 consequences of the convictions were misrepresented. Accordingly, we remand 12 for the BIA to reconsider whether Lima exercised due diligence from the time of 13 service of the notice to appear in November 2022 (rather than from his conviction 14 in May 2019) until he moved to reopen in December 2024. The BIA should 15 consider in the first instance whether Lima’s decision not to immediately pursue 16 post-conviction relief was reasonable. See id. at 943 (instructing agency to

1When a motion to reopen is premised on vacatur of the criminal conviction on which the removal order is based, the time to measure diligence does not start immediately upon conviction.

See also Bent, 115 F.4th at 938–39.

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1 consider, among other factors, steps Bent took to defend against removal); see also 2 Holland, 560 U.S. at 653 (holding that “the diligence required for equitable tolling 3 purposes is reasonable diligence, not maximum feasible diligence” (quotation 4 marks and citation omitted)). 5 As Lima points out, and the Government does not dispute, the BIA should 6 have considered the motion to reopen under Second Circuit, not First Circuit, law. 7 While Lima has not identified significant differences between the circuits, on 8 remand the BIA should apply Second Circuit law. 9 Finally, we understand that Lima was removed on July 4, 2026. Should 10 Lima’s presence be necessary for continued proceedings or should the BIA 11 ultimately restore Lima’s status as a lawful permanent resident, we expect that the 12 Government will “facilitate [his] return to the United States.” U.S. Immigr. & 13 Customs Enf’t, ICE Policy Directive Number 11061.1: Facilitating the Return to the 14 United States of Certain Lawfully Removed Aliens 1 (Feb. 24, 2012); see also U.S. 15 Immigr. & Customs Enf’t, FAQs: Facilitating Return for Lawfully Removed Aliens, 16 https://www.ice.gov/remove/facilitating-return (Feb. 2, 2024) (“If you were not an 17 LPR before being removed, absent extraordinary circumstances ICE will facilitate 18 your return to the United States if your presence is necessary for continued

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1 adjudication of your case. . . . ICE will also facilitate your return to the United 2 States, absent extraordinary circumstances, if, at the conclusion of proceedings for 3 which your presence was not necessary, the Board of Immigration Appeals or 4 Immigration Court enters a final and unreviewable decision that permits you to 5 be physically present in the United States.”). 6 For the foregoing reasons, the petition for review is GRANTED and the case 7 is REMANDED to the BIA for additional proceedings consistent with this 8 order. All other pending motions and applications are DENIED and stays 9 VACATED.

10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court