Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 29, 2026 _________________________________ Christopher M. Wolpert Clerk of Court HUE PHONG YANG,
Petitioner,
v. No. 25-9597 (Petition for Review) TODD BLANCHE, Acting United States Attorney General,
Respondent. * _________________________________
ORDER AND JUDGMENT ** _________________________________
Before HOLMES, Chief Judge, McHUGH, and CARSON, Circuit Judges. _________________________________
Hue Phong Yang petitions this Court for review of the Board of Immigration
Appeals’ (“BIA”) order denying his motion to reopen his immigration case and declining
to reopen his proceedings sua sponte. Exercising jurisdiction under 8 U.S.C. § 1252, we
deny Mr. Yang’s petition in part and dismiss it in part for lack of jurisdiction.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Todd Blanche is automatically substituted for former Attorney General Pamela Bondi. ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 2
I
Mr. Yang was born at a refugee camp in Thailand to parents of Lao-Hmong
descent. In 1976, when he was about eleven-months old, Mr. Yang and his family were
admitted to the United States as refugees. Mr. Yang became a lawful permanent resident
in 1977.
In 1995, Mr. Yang was charged with “receiving stolen property in violation of
California Penal Code § 496(a)” in the Superior Court of California, Fresno County.
Administrative Record (“A.R.”), at 51 (Mot. to Reopen, filed Aug. 29, 2025). Mr. Yang
“was found in possession of property taken during a robbery.” Id. at 160 (Probation
Report, dated June 27, 1995). The stolen property was a 1991 Honda. This offense was
deemed an “aggravated felony” due to Mr. Yang’s prior law violations. Id. at 125
(Removal Proceedings Tr., dated Jan. 20, 1999). Mr. Yang pleaded guilty.
In 1998, the former Immigration and Naturalization Service initiated removal
proceedings against Mr. Yang based on his 1995 conviction. See 8 U.S.C. § 1227. In
1999, an immigration judge ordered that Mr. Yang be removed. The BIA dismissed Mr.
Yang’s appeal on June 3, 1999.
In 2025, Mr. Yang filed a motion to vacate his guilty plea pursuant to Cal. Penal
Code § 1473.7. 1 A Superior Court of California granted the motion and held that
1 Cal. Penal Code § 1473.7 states, in relevant part:
A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence for any of the following reasons: . . . The conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to 2 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 3
[T]he conviction as to these counts is set aside in its entirety on grounds that it was legally invalid due to prejudicial error damaging the moving [Mr. Yang’s] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere pursuant to Penal Code section 1473.7(a)(1).
A.R., at 61–62 (Order of Mot. to Vacate Plea, dated July 10, 2025).
On August 29, 2025, Mr. Yang filed a motion with the BIA to reopen his
immigration case and terminate removal proceedings against him since the “Superior
Court of California [] vacated the sole conviction forming the basis for Respondent’s
removability.” Id. at 50. He argued that, “[a]lthough a motion to reopen must generally
be filed within 90 days of the final order of removal,” equitable tolling was warranted
because he could “demonstrate[] both due diligence and extraordinary circumstances.”
Id. at 52. Regarding due diligence, Mr. Yang detailed steps he took to pursue his rights
from 2017 to 2025:
In 2017, while residing in Colorado, Respondent retained Margaret W. Wong & Associates in Ohio to obtain FOIA records from multiple agencies. By March 2018, counsel quoted Respondent $50,000—an amount far beyond Respondent’s means—to proceed with this immigration case. Throughout 2018, Respondent contacted numerous non-profit organizations and private attorneys across the United States; however, many declined representation due to the California location of the conviction, and referrals often led to repeated dead ends.
Unfortunately, in 2019, Respondent suffered a heart attack requiring the placement of three stents and the use of ongoing daily medication,
meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.
3 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 4
which severely limited his capacity to pursue legal remedies. Subsequently, in 2020, Respondent’s father suffered kidney failure, prompting Respondent to relocate to California in July to provide care. As a result of Respondent’s relocation, he had to leave his employment and was unable to afford legal services financially. Accordingly, through the COVID-19 pandemic, Respondent faced economic hardship, employment instability, and eventual housing instability when his family was forced to vacate their rental home. In January 2025, after learning of the increasing detention and deportations of the Hmong and [S]outheast [A]sian community to Laos, Respondent renewed his search for legal assistance. Several consultations followed, one of which, for the first time, informed him of the potential immigration effect of a conviction vacatur. In July 2025, Respondent successfully vacated his 1995 conviction in California.
Id. at 52–53. As evidentiary support, Mr. Yang submitted medical discharge paperwork,
a lease termination letter, and email correspondence with several attorneys. Regarding
extraordinary circumstances, Mr. Yang argued that “California Penal Code § 1473 did
not become effective until January 1, 2017,” and his “lack of knowledge, combined with
the absence of accessible, affordable legal assistance, prevented him from pursuing
vacatur until recently.” Id. at 52.
Alternatively, Mr. Yang argued that, if the BIA deemed his motion to be time-
barred, it should reopen his proceedings sua sponte. He pointed to a variety of
“exceptional circumstances” that “weigh[ed] heavily in favor of” the BIA exercising its
discretion and sua sponte granting relief. Id. at 54. These circumstances included
“Respondent’s continuous residency in the U.S. for over four decades,” “Respondent’s
conviction of removability [having] been vacated on the basis of a procedural defect,”
and “Respondent now [having] a viable and significant form of relief that was
unavailable at the time of the prior proceedings.” Id.
4 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 5
The BIA, acting as a one-judge panel, denied Mr. Yang’s motion to reopen. It
held that Mr. Yang “ha[d] not established he merit[ed] equitable tolling.” Id. at 4 (BIA
Order, filed Nov. 26, 2025). While the BIA acknowledged Mr. Yang’s “various
hardships and efforts” such as “medical hardships, employment instability, housing
instability, and difficulty securing legal counsel,” it reasoned that he had “not
satisfactorily explained why his 1995 conviction was not vacated for more than 30 years
after the date of conviction.” Id. at 5. And it highlighted that Mr. Yang did “not
explain[] why the instant motion was filed more than 26 years after the Board’s final
decision.” Id. Alternatively, the BIA was “unpersuaded” that Mr. Yang’s “purported
lack of knowledge constitute[d] an extraordinary circumstance” since “[i]t is well settled
that ignorance of the law does not excuse an untimely filing.” Id. at 4. Regarding Mr.
Yang’s arguments in support of sua sponte reopening, the BIA held that
Finally, we have considered the respondent’s arguments in support of sua sponte reopening and, while the respondent has presented sympathetic circumstances, he has not presented an exceptional situation that warrants the exercise of our sua sponte reopening authority in these proceedings (Respondent’s Motion at 4-5). See 8 C.F.R § 1003.2(a); Matter of J-J-, 21 I&N Dec. at 984 (stating that the power to reopen sua sponte is not meant to be used as a general cure for filing defects or to otherwise circumvent regulations, where enforcing them might result in hardship). We also deny the respondent’s request for sua sponte reopening in the exercise of discretion based upon the lack of due diligence. The respondent did not file his motion until more than 26 years after the Board’s 1999 decision. The respondent’s delay does not reflect diligence, and the interest of finality in immigration proceedings takes precedence under these circumstances. The lack of due diligence militates against a grant of reopening. See Matter of Nivelo Cardenas, 28 I&N Dec. 68, 73 (BIA 2020).
Id. at 5.
5 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 6
Mr. Yang petitioned this Court for review of the BIA’s denial of his motion to
reopen and its decision not to reopen his proceedings sua sponte.
II
“[W]e review the BIA’s decision on a motion to reopen [only] for an abuse of
discretion. The BIA abuses its discretion when its decision provides no rational
explanation, inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Infanzon v. Ashcroft, 386 F.3d 1359,
1362 (10th Cir. 2004) (alterations in original) (quoting Gurung v. Ashcroft, 371 F.3d 718,
720–21 (10th Cir. 2004)). “We consider any legal questions de novo, and we review the
agency’s findings of fact under the substantial evidence standard.” Elzour v. Ashcroft,
378 F.3d 1143, 1150 (10th Cir. 2004).
A
Mr. Yang argues that the “Court should grant [his] petition for review and remand
the case to the agency for further proceedings.” Aplt.’s Opening Br. at 12. He claims
“[t]here is no longer any basis for [his] removal” since the Superior Court of California
vacated the conviction on which his removal order was based. Id. at 6–8. Mr. Yang
contends the BIA erred in denying his motion to reopen for untimeliness. Specifically,
according to Mr. Yang, the BIA incorrectly calculated the equitable tolling period for his
motion by determining he “did not diligently pursue his claim” and that there was no
extraordinary circumstance that prevented him from timely filing it. Id. at 8.
Additionally, Mr. Yang argues that “[t]hough this Court lacks jurisdiction over the BIA’s
6 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 7
sua sponte decisions, it maintains jurisdiction over legal issues, and here the BIA failed to
even attempt to explain its decision.” Id.
The government argues “the [BIA] acted within its broad discretion when it denied
[Mr.] Yang’s motion to reopen.” Aplee.’s Resp. Br. at 15. It claims “[Mr.] Yang did
nothing to undo his conviction for at least 18 years, when he first contacted an attorney
about his situation in November of 2017.” Id. at 15–16. And “[e]ven assuming [Mr.]
Yang was foreclosed from seeking post-conviction relief before Cal. Penal Code § 1473.7
was enacted in 2017, he still failed to show he acted with reasonable diligence for the 8
years that passed after § 1473.7 was enacted but before he filed his motion to reopen.”
Id. at 17. The government highlights that the record “shows that he did nothing to pursue
his claim in 2019, or from 2022-2024.” Id. at 18. Additionally, the government argues
“[t]he Court lacks jurisdiction to review the Board’s decision not to reopen the
proceedings sua sponte because there are no meaningful standards by which to judge the
Board’s unfettered discretion to use its sua sponte authority.” Id. at 21.
B
“An alien may file one motion to reopen proceedings . . . .” 8 U.S.C.
§ 1229a(c)(7)(A). “The motion to reopen shall state the new facts that will be proven
at a hearing to be held if the motion is granted, and shall be supported by affidavits or
other evidentiary material.” Id. § 1229a(c)(7)(B). “The Board has discretion to deny
a motion to reopen even if the moving party has made out a prima facie case for
relief.” 8 C.F.R. § 1003.2(a). “Motions for reopening of immigration proceedings
are disfavored for the same reasons as are petitions for rehearing and motions for a
7 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 8
new trial on the basis of newly discovered evidence.” I.N.S. v. Doherty, 502 U.S.
314, 323 (1992).
Such motions “must be filed no later than 90 days after the date on which the
final administrative decision was rendered in the proceeding sought to be reopened.”
Galvez Pineda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005) (quoting 8 C.F.R.
§ 1003.2(c)(2)). “The 90-day period may be extended, however, by equitable
tolling.” Id. “Equitable tolling is appropriate where the movant shows (1) that [he]
has been pursuing [his] rights diligently, and (2) that some extraordinary
circumstance stood in [his] way and prevented timely filing.” Estrada-Cardona v.
Garland, 44 F.4th 1275, 1287 (10th Cir. 2022). “The respondent bears the burden of
persuasion to show that equitable tolling is warranted, including demonstrating due
diligence in seeking reopening.” Berdiev v. Garland, 13 F.4th 1125, 1132 (10th Cir.
2021) (quoting A.R. 30 (citing Galvez Pineda, 427 F.3d at 838–39)).
“Our jurisdiction extends to a BIA decision denying a motion to reopen as
untimely and rejecting a request for equitable tolling.” Id. at 1130. “In contrast, this
Court generally lacks jurisdiction to review a BIA decision as to whether to reopen
sua sponte, ‘because there are no standards by which to judge the agency’s exercise
of discretion.’” Id. (quoting Jimenez v. Sessions, 893 F.3d 704, 708–09 (10th Cir.
2018)). “But where the BIA ‘may have declined to exercise its sua sponte authority
because it misperceived the legal background and thought, incorrectly, that a
reopening would necessarily fail,’ we may exercise limited jurisdiction to ‘remand to
the BIA so it may exercise its [sua sponte] authority against the correct legal
8 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 9
background.’” Estrada-Cardona, 44 F.4th at 1286 (alteration in original) (citations
omitted) (first quoting Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); then
quoting Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011)). In other words, we
may “remand where the BIA bases its discretionary decision on an incorrect legal
premise.” Berdiev, 13 F.4th at 1130; see 8 U.S.C. § 1252(a)(2)(D) (stating that we
have jurisdiction over “review of constitutional claims or questions of law raised
upon a petition for review”).
The ninety-day deadline for Mr. Yang to file a motion to reopen expired years
before he filed his motion. Thus, absent equitable tolling, reopening is not warranted
under 8 C.F.R. § 1003.2. We conclude equitable tolling is inappropriate because Mr.
Yang failed to show that he pursued his rights diligently. Because the BIA did not
abuse its discretion in concluding that Mr. Yang failed to show due diligence, we do
not address whether some extraordinary circumstance prevented timely filing.
Mr. Yang provided no evidence or argument to the BIA of what he did to
diligently pursue his rights prior to 2017. Instead, he argued that, because Cal. Penal
Code § 1473.7 became effective on January 1, 2017, he need only have acted with
due diligence from that date forward. We assume, for purposes of this appeal only,
that he is correct. But even so, Mr. Yang has not shown that from January 1, 2017—
when Cal. Penal Code § 1473.7 became effective—to August 29, 2025—when he filed
his motion to reopen—he acted with due diligence in seeking reopening. See
Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (“For an untimely claim
9 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 10
to receive the benefit of equitable tolling, . . . an alien must demonstrate . . . that the
alien has exercised due diligence in pursuing the case during the period the alien
seeks to toll.” (quoting Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000))).
For instance, the record reflects that from 2017–2025, there are gaps in which
Mr. Yang did nothing to diligently pursue his rights. Mr. Yang attempts to account
for these gaps by pointing to other circumstances such as (1) being hospitalized for
five days in 2019 after having a heart attack; (2) taking care of his father who
experienced kidney failure and passed away in 2020; (3) and having the lease for his
house terminated with only 60 days’ notice in 2023. But, as the government
acknowledges, Mr. Yang “did nothing to pursue his claim” from 2022–2024.
Aplee.’s Resp. Br. at 18. Thus, we cannot say it was an abuse of discretion for the
BIA to hold that these circumstances did not establish that Mr. Yang diligently
pursued his rights from January 2017 to August 2025. While perhaps the record
clearly shows Mr. Yang diligently pursued his rights occasionally, it does not show
that he diligently pursued them consistently throughout the relevant period.
Additionally, Mr. Yang acknowledges in his motion to reopen that “[i]n
January 2025, after learning of the increasing detention and deportations of the
Hmong and [S]outheast [A]sian community to Laos, Respondent renewed his search
for legal assistance.” A.R., at 53 (emphasis added); see also Aplt.’s Opening Br. at
9–10 (“In January of 2025, Petitioner heard word that the government had again
beg[u]n the removals to Laos of those among the Hmong and [S]outheast Asian
community. He thus continued his search for legal remedies, and for the first time,
10 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 11
during one of many consultations, an attorney mentioned that he could possibly
vacate his conviction.” (citation omitted)). In other words, even after Cal. Penal
Code § 1473.7 went into effect, there was a period in which Mr. Yang stopped
diligently pursuing his rights. But then he later started again for strategic reasons—
i.e., the heightened risk of detention and deportation of members of the Hmong and
Southeast Asian community, a group in which he belonged. Such strategic decisions
do not justify a failure to act with due diligence. See Galvez Pineda, 427 F.3d at 839
(“The Piñedas claim that it was only after receiving the respondent’s answer brief . . .
that they made a ‘strategic decision’ to file a grievance against their first counsel and
a subsequent motion to reopen. But that is precisely the point. It was a ‘strategic
decision,’ not necessity, that led them to forgo a motion to reopen . . . .” (citation
omitted)).
Thus, Mr. Yang has failed to show that he pursued his rights diligently.
Accordingly, we deny this portion of his petition for review and hold that the BIA did
not abuse its discretion by concluding equitable tolling was unwarranted.
As explained supra, we do not have jurisdiction to review the BIA’s exercise of
discretion in declining to sua sponte reopen removal proceedings. See Salgado-Toribio v.
Holder, 713 F.3d 1267, 1270–71 (10th Cir. 2013) (“Petitioner . . . challenges the BIA’s
holding that Petitioner had not presented an exceptional situation warranting sua sponte
reopening of his removal proceedings. But our precedent clearly forecloses any review
of that discretionary decision.”). However, we do have jurisdiction to review whether, in
11 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 12
exercising its discretion, the Board relied on an erroneous understanding of a question of
law. Therefore, if Mr. Yang raised a question of law, we could consider that. But he
does not.
Mr. Yang’s only argument regarding the BIA’s failure to reopen his proceedings
sua sponte is that “the BIA did not address why the vacatur of a conviction was not an
exceptional situation that would warrant sua sponte reopening . . . . Though this Court
lacks jurisdiction over the BIA’s sua sponte decisions, it maintains jurisdiction over legal
issues, and here the BIA failed to even attempt to explain its decision.” Aplt.’s Opening
Br. at 7–8. He seemingly wants us to hold that the BIA abused its discretion because its
decision was “devoid of any reasoning[] or contain[ed] only summary or conclusory
statements.” Infanzon, 386 F.3d at 1362 (quoting Gurung, 371 F.3d at 720–21). But that
type of discretionary decision (i.e., how much explanation or analysis is necessary) is not
within our jurisdiction. See Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007)
(“We have construed § 1252(a)(2)(D)’s ‘constitutional claims or questions of law’
language to reach . . .‘constitutional and statutory-construction questions, not
discretionary or factual questions.’” (quoting Diallo v. Gonzales, 447 F.3d 1274, 1281–82
(10th Cir. 2006))); Mendiola v. Holder, 576 F. App’x 828, 838 (10th Cir. 2014)
(unpublished) 2 (“[I]n reviewing the BIA’s decision whether or not to reopen removal
2 See, e.g., United States v. Ellis, 23 F.4th 1228, 1238 n.6 (10th Cir. 2022) (“We deem the reasoning of the unpublished decisions cited herein to be persuasive and instructive. We do not accord them controlling weight and recognize that they are not binding on us.”).
12 Appellate Case: 25-9597 Document: 26-1 Date Filed: 07/29/2026 Page: 13
proceedings sua sponte, our review is constrained by our limited jurisdiction; we review
only constitutional claims and questions of law.”). This is not a purely legal argument
and therefore cannot serve as our jurisdictional basis for our review of the BIA’s exercise
of discretion in declining to sua sponte reopen Mr. Yang’s proceedings.
Accordingly, we do not have jurisdiction to review any aspect of the BIA’s sua
sponte decision because Mr. Yang points to no incorrect legal premise on which the
decision was based. We dismiss this portion of Mr. Yang’s petition.
III
We deny Mr. Yang’s petition in part and dismiss it in part for lack of
jurisdiction.
Entered for the Court
Jerome A. Holmes Chief Judge