Tho Huynh v. Todd Blanche

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 9, 2026
• Docket: 25-1619
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 25-1619

THO DUC HUYNH,

Petitioner,

v.

TODD BLANCHE, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: May 7, 2026 Decided: June 9, 2026

Before WILKINSON, RUSHING, and HEYTENS, Circuit Judges.

Petition denied by unpublished opinion. Judge Heytens wrote the opinion, which Judge Wilkinson and Judge Rushing joined.

ARGUED: Alex Christopher Boota, MCDERMOTT WILL & SCHULTE LLP, Washington, D.C., for Petitioner. Rodolfo David Saenz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Simon Y. Sandoval-Moshenberg, Alaina Taylor, MURRAY OSORIO PLLC, Fairfax, Virginia; Paul W. Hughes, Sarah P. Hogarth, MCDERMOTT WILL & SCHULTE LLP, Washington, D.C., for Petitioner. Brett Shumate, Assistant Attorney General, Lindsay B. Glauner, Margot L. Carter, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

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TOBY HEYTENS, Circuit Judge:

The Board of Immigration Appeals denied a noncitizen’s motion to reopen his

removal proceedings on timeliness grounds and declined to exercise its authority to order

sua sponte reopening. We deny the petition for review.

I.

In 1997, a state court convicted petitioner Tho Duc Huynh of violating Virginia

Code § 18.2-67.4. In 2003, an immigration judge concluded that conviction rendered

petitioner removable on two grounds: first, because it was an “aggravated felony” under

8 U.S.C. § 1227(a)(2)(A)(iii); and second, because it constituted a “crime involving moral

turpitude” under Section 1227(a)(2)(A)(i). The Board of Immigration Appeals affirmed

that decision in 2004, thus finalizing petitioner’s order of removal. See 8 U.S.C.

§ 1101(a)(47)(B); Lopez v. Bondi, 167 F.4th 223, 227 (4th Cir. 2026). Petitioner did not

pursue judicial review at that point.

The government did not immediately seek to remove petitioner because there was

“no repatriation agreement between the United States and Vietnam” at the time. Ly v.

Hansen, 351 F.3d 263, 265 n.1 (6th Cir. 2003); cf. Gov’t Rule 28(j) Ltr., ECF No. 66 (filed

May 12, 2026) (asserting the government began removing “Vietnamese citizens who (like

[petitioner]) entered the United States before 1995 . . . to Vietnam by at least July 2017”).

Despite the final order of removal, petitioner remained in the United States for the next two

decades. In 2005 and 2010, petitioner sought postconviction relief from his 1997

state-court conviction. Those efforts were unsuccessful in state trial court, and it does not

appear petitioner appealed. Petitioner also did not seek to reopen his removal proceedings

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between 2004 and 2025.

On January 31, 2025, the government detained petitioner with plans to remove him

to Vietnam. On March 21, 2025—49 days later—petitioner asked the Board to reopen his

case because “two key changes in law” meant his 1997 conviction “no longer render[ed]

him removable.” JA 175. Despite acknowledging that such motions generally must be filed

within 90 days after a final removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i), petitioner

noted that deadline is subject to equitable tolling and asserted such tolling was warranted

in his case. In the alternative, petitioner asked the Board to exercise its discretion to reopen

his removal proceedings sua sponte. See 8 C.F.R. § 1003.2(a) (“The Board may at any time

reopen or reconsider on its own motion any case in which it has rendered a decision.”).

The Board denied petitioner’s motion to reopen and declined to reopen sua sponte.

It noted that Sessions v. Dimaya, 584 U.S. 148 (2018)—one of “two key changes in law”

identified in petitioner’s motion, JA 175; see JA 179–80 (discussing Dimaya)—was

decided “years before” petitioner claimed to have first heard about it from a lawyer in

February 2025. JA 4. The Board stated that petitioner “d[id] not explain what actions he

took during the years after entry of the Board’s decision and between issuance of . . .

Dimaya and” his detention “that exhibit diligence in pursuing his rights, aside from

inquiring about post-conviction relief with an attorney in 2005 and 2010.” Id. The Board

emphasized that “[l]ack of knowledge of the law . . . is not enough,” and it rejected

petitioner’s assertions that his “situation [was] comparable to” Williams v. Garland,

59 F.4th 620 (4th Cir. 2023), a case in which this Court held equitable tolling was

warranted. JA 4. The Board also determined sua sponte reopening was “not appropriate,”

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stating such relief is warranted only in “exceptional circumstances” and “is not meant to

cure filing defects or circumvent the [governing] regulations where enforcing them might

result in hardship.” Id. In the Board’s view, a noncitizen “becoming eligible for relief after

remaining in the United States for decades following the entry of a final order of removal

and the denial of a Petition for Review is a common, rather than exceptional, circumstance”

and did “not warrant [its] consideration of an untimely motion.” Id.

II.

We start with the Board’s denial of petitioner’s motion to reopen.

A.

This Court’s jurisdiction to review “final order[s] of removal,” 8 U.S.C.

§ 1252(a)(1), “encompasses review of decisions refusing to reopen or reconsider such

orders” on a party’s motion. Mata v. Lynch, 576 U.S. 143, 147 (2015); see 8 U.S.C.

§ 1252(b)(6) (“[A]ny review sought of a motion to reopen or reconsider [a removal order]

shall be consolidated with the review of the [underlying] order.”). “[T]he reason for the

[Board]’s denial” of such a motion “makes no difference to the jurisdictional issue.” Mata,

576 U.S. at 148. In particular, our jurisdiction covers situations—like this one—“when the

Board denies a motion to reopen because it is untimely” or “rejects a request for equitable

tolling.” Id.

Although “we generally review for abuse of discretion the Board’s refusal to reopen

a case,” Romero v. Bondi, 150 F.4th 332, 338 (4th Cir. 2025), “the proper standard depends

on the discrete question we must review,” Williams v. Garland, 59 F.4th 620, 635 (4th Cir.

2023). Williams states that the Board’s “decision to deny equitable tolling presents a mixed

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question we must review de novo,” id. at 639, and the government does not deny that

conclusion binds us here. See Gov’t Br. 11–12. We thus apply the standards outlined in

that decision.

B.

The Board committed no legal error in concluding the facts cited in petitioner’s

motion to reopen did not warrant equitable tolling.

Because petitioner did not assert the government engaged in “wrongful conduct”

that “prevented [him] from filing a timely motion,” he had to “prove” there were

“extraordinary circumstances beyond [his] control [that] made it impossible for him to file

within the statutory deadline.” Lawrence v. Lynch, 826 F.3d 198, 203–04 (4th Cir. 2016)

(quotation marks removed). Petitioner also had to “show that he” was “diligent[]” in

“pursuing his rights.” Id. at 204 (quotation marks removed). Although the standard is

“reasonable diligence, not maximum feasible diligence,” Holland v. Florida, 560 U.S. 631,

653 (2010) (citations and quotation marks removed), it still creates “a high bar” to relief,

Williams, 59 F.4th at 640. In particular, “the use of equitable tolling must be guarded and

infrequent, lest circumstances of individualized hardship supplant the rules of clearly

drafted statutes.” Lawrence, 826 F.3d at 204 (quotation marks removed).

Petitioner’s reopening motion identified two “fundamental change[s]” in law that

constituted “extraordinary circumstances outside of [his] control.” JA 178. First, it asserted

that the Supreme Court’s 2018 decision in Dimaya “affect[ed] whether” petitioner’s 1997

conviction was “for an aggravated felony” (one of two grounds on which petitioner was

ordered removed). JA 178. Second, the motion argued that a 2022 decision by Virginia’s

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intermediate appellate court established that petitioner’s 1997 conviction did not carry “a

sentence of one year or more” and thus could not constitute a crime of moral turpitude

under federal immigration law. Id. (discussing Belcher v. Commonwealth, 878 S.E.2d 19

(Va. Ct. App. 2022)); see 8 U.S.C. § 1227(a)(2)(A)(i)(II) (stating a “crime involving moral

turpitude” triggers removability only if it is one “for which a sentence of one year or longer

may be imposed”).

Like Williams—and the Board’s decision here—we assume that intervening judicial

decisions can “present[] an extraordinary circumstance that would warrant equitable

tolling.” 59 F.4th at 643. But, even applying de novo review, we see no error in the Board’s

conclusion that the facts identified in petitioner’s reopening motion failed to “demonstrate”

he had been “pursuing [his] rights diligently.” Id. at 640 (quotation marks removed).

As in Williams, we start by identifying “the proper point in time from which to

measure [petitioner’s] diligence,” which turns on when he “had . . . ‘rights’ to pursue.”

59 F.4th at 640–41. Although petitioner criticizes the Board for treating the Supreme

Court’s 2018 decision in Dimaya “as the relevant starting point,” Petr. Br. 29, we conclude

that argument is not well taken. The Board was considering a motion to reopen that

described Dimaya and Belcher as separate “fundamental change[s] in law,” JA 178, and

never so much as hinted (as petitioner now argues to us) that 2022 “is the relevant starting

point for measuring” his diligence. Petr. Br. 29. No less than a trial court, the Board was

entitled to “accept [petitioner’s] framing of the dispute before it.” De Paredes v. Zen Nails

Studio LLC, 134 F.4th 750, 753–54 (4th Cir. 2025).

But even positing that Belcher provides the relevant starting point for the diligence

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inquiry, we cannot agree that “Williams controls this case.” Petr. Br. 16. 1 To the contrary,

this case is materially different from Williams.

First, even making all assumptions in petitioner’s favor, the delay in seeking relief

here was twice as long as in Williams. The petitioner in Williams “discovered his rights

just one year after the [Supreme] Court enunciated them” and filed a motion to reopen “just

one month later.” 59 F.4th at 626, 643. Here, in contrast, petitioner did not move to reopen

his removal proceedings until nearly two-and-a-half years after Belcher was decided. True,

“the mere passage of time—even a lot of time—before” a noncitizen “files a motion to

reopen does not necessarily mean [the noncitizen] was not diligent.” Gordillo v. Holder,

640 F.3d 700, 705 (6th Cir. 2011). But “the longer” a noncitizen “takes to file [a] motion

to reopen, the more explaining [the noncitizen] has to do.” Id. And here, we know nothing

about petitioner’s actions between when Belcher was decided and his detention beyond his

representation that he “reported to ICE as [he] was supposed to and continued to renew

[his] work permit.” JA 262.

Second, many of the extenuating circumstances the Court relied on in Williams are

absent here. See 59 F.4th at 641 (emphasizing “the totality of the circumstances [the

1 Aside from scattered “passing shot[s],” Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (quotation marks removed), petitioner’s brief argues that he “satisfies the diligence prong for equitable tolling,” Petr. Br. 35, not that we should grant the petition for review so that the Board can redo its diligence analysis using the correct starting point. To reiterate: Given the arguments petitioner made before the Board, we do not hold it applied the wrong starting point. Rather, we explain why—even assuming that petitioner’s framing is correct—we still would reject his equitable tolling argument under de novo review. See Immigration & Naturalization Serv. v. Orlando Ventura, 537 U.S. 12, 16–17 (2002) (per curiam).

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petitioner had] presented”). Williams pointed out that—during the relevant diligence

period—the petitioner in that case “had been in Jamaica for eleven years,” “was not

allowed back in the United States, not even to visit,” “ma[de] only a few dollars a week

after room and board,” “ha[d] no access to the internet,” and was largely cut off from his

family and friends. 59 F.4th at 624, 642; see id. at 626. Here, in contrast, petitioner was in

the United States during the entire period for which he seeks tolling—a place where he

operates a business and has the support of “many family members and friends.” Petr. Br.

10. We neither suggest petitioner is a person of great means nor minimize the health

challenges identified in his motion to reopen and its accompanying materials. But even so,

this case is less extreme than Williams.

Petitioner invokes the Ninth Circuit’s decision in Eskilian v. Bondi, 172 F.4th 682

(9th Cir. 2026), but that case is distinguishable. For one thing, the relevant motion to reopen

in Eskilian was based on ineffective assistance of counsel rather than (as here) new

decisional law. See id. at 685; cf. Williams, 59 F.4th at 641 (stating that such claims warrant

“a different analysis” than the sort of pure change-in-law claim petitioner presents here).

And to the extent Eskilian announced a general rule, that rule would not cover petitioner

because he has never been “deemed ‘stateless.’” 172 F.4th at 688. Finally, Eskilian

considered a far different factual record than the one we encounter here and emphasized

“the unique circumstances in [that] case.” Id. at 689. In Eskilian, a new statute took effect

in 2017. See id. at 686. The noncitizen found out about that change in 2018, succeeded in

having her underlying conviction vacated by mid-2019, and filed her first motion to reopen

less than two months later. See id. Here, in contrast, the motion to reopen identified no

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steps petitioner took to protect his rights in the years after Belcher—much less Dimaya—

was decided. See Lawrence, 826 F.3d at 204 (stating the equitable tolling analysis requires

a “fact-intensive and case-specific” inquiry (quotation marks removed)).

We question neither the sincerity nor the reasonableness of petitioner’s long-held

belief that the Executive Branch would be unable or unwilling to force him to leave this

country and return to Vietnam. But the lack of a repatriation agreement between two

countries confers no legal right for citizens of one country to remain in another.

Cf. Orellana v. Bondi, 141 F.4th 560, 565–67 (4th Cir. 2025) (concluding the government

immigration policy document at issue was not intended “for the benefit of any individual

[noncitizen] or intended to have the force of law”). Instead, the question before us is

whether petitioner’s motion to reopen established that he had “made a reasonable effort to

pursue” any “rights” he had to remain in this country after becoming “entitled to relief.”

Williams, 59 F.4th at 636, 640 (quotation marks removed). For the reasons stated above,

we conclude the answer is no and that the Board committed no legal error in denying the

motion to reopen. 2

2 Despite arguing that no periods before Belcher are relevant to the diligence inquiry, other parts of petitioner’s argument focus on his actions dating back to his original removal proceedings in 2004. Applying a wider lens would not change our conclusion here. Although petitioner “has challenged his removability from the beginning of removal proceedings,” Petr. Br. 22, it is undisputed that he did not seek judicial review of the final order of removal. True, petitioner twice unsuccessfully asked state trial courts to vacate his 1997 conviction, but there is no indication he appealed either decision. And despite now acknowledging that his Dimaya-based argument would alone have been enough to make him eligible for certain forms of discretionary relief, petitioner did not seek reopening until almost seven years after Dimaya was decided, and his filings with the Board did not discuss any actions he took between Dimaya and when he was detained.

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III.

Petitioner also asserts that we should “vacate and remand the [Board’s] sua sponte

reopening determination because it is premised on an erroneous legal understanding of

[petitioner’s] motion.” Petr. Br. 17. As petitioner acknowledges, this Court has held that

we generally “lack jurisdiction to review [the Board’s] refusal to sua sponte reopen,”

Mosere v. Mukasey, 552 F.3d 397, 401 (4th Cir. 2009), but has “expressly left open”

whether we have jurisdiction to consider “legal errors ‘underlying’ the [Board’s] exercise

of ‘its sua sponte power,’” Williams, 59 F.4th at 643 n.10 (quoting Lawrence, 826 F.3d at

207 n.5). As in Lawrence, we need not resolve the precise scope of any “such . . . exception

to Mosere,” Lawrence, 826 F.3d at 207 n.5, because any error the Board may have made

in understanding petitioner’s request for sua sponte reopening would have been harmless

as a matter of law.

In his own words, petitioner’s “principal argument” for sua sponte reopening—and

the only one he claims the Board “did not address . . . at all”— was that he “was no longer

removable” because of the combination of Dimaya and Belcher. Petr. Br. 50–51 (emphasis

added). After this petition for review was fully briefed, however, this Court decided

Perdomo Ulloa v. Bondi, 171 F.4th 300 (4th Cir. 2026), which rejected the exact argument

petitioner made based on Belcher. See id. at 301 (holding that, notwithstanding Belcher,

“an offense that carries a maximum sentence of twelve months” is “‘a crime for which a

sentence of one year or longer may be imposed’ within the meaning of 8 U.S.C.

§ 1227(a)(2)(A)(i)”). For that reason, petitioner now concedes that he is removable under

the crime of moral turpitude provision, regardless of whether his 1997 offense remains an

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aggravated felony after Dimaya. So even if the Board failed to appreciate one component

of petitioner’s argument for sua sponte reopening, it would be an “idle and useless

formality” to remand for further proceedings because “there is [now] not the slightest

uncertainty” that he is removable. Morgan Stanley Cap. Grp. Inc. v. Public Util. Dist. No.

1 of Snohomish Cnty., 554 U.S. 527, 545 (2008) (quotation marks removed) (first quote);

Calcutt v. Federal Deposit Ins. Corp., 598 U.S. 623, 630 (2023) (per curiam) (alterations

and quotation marks removed) (second quote); see also Food & Drug Admin. v. Wages &

White Lion Invs., L.L.C., 604 U.S. 542, 589–91 (reaffirming Calcutt’s exception to ordinary

remand principles in administrative law).

* * *

The petition for review is

DENIED.