Continuous-Diligence Doctrine for Equitable Tolling in Immigration Appeals
Commentary on Rene Hernandez-Garcia v. Attorney General, United States (3d Cir., 22 July 2025)

1. Introduction

The Third Circuit’s non-precedential decision in Rene Hernandez-Garcia v. Attorney General addresses a recurrent problem in immigration litigation: when, if ever, should the thirty-day deadline to appeal an Immigration Judge’s decision to the Board of Immigration Appeals (BIA) be equitably tolled? Although styled “not precedential,” the opinion helpfully synthesises earlier precedent and elaborates a practical rule: equitable tolling in this context demands “continuous” or “whole-period” diligence—diligence that spans every segment of the delay, not just isolated spurts of effort.

The petitioners—a Guatemalan family who conceded removability but sought humanitarian protection—claimed that prior counsel’s health problems constituted an “extraordinary circumstance” excusing their ten-month late appeal. The BIA refused to toll, finding a lack of diligence; the Third Circuit affirmed. While the outcome turned on well-worn equitable-tolling standards, the Court’s emphasis on continuous diligence over the entire period for which tolling is sought crystallises what many earlier cases implied but did not state as plainly.

2. Summary of the Judgment

• The petitioners missed the 30-day BIA appeal deadline by roughly ten months.
• They blamed former counsel’s withdrawal and alleged inaction.
• Both the IJ and the BIA declined to re-issue the decision or toll the deadline.
• The Third Circuit, reviewing de novo, upheld the BIA, stressing two prongs:
  • Extraordinary circumstance: Prior counsel’s illness could qualify, but only if accompanied by diligence.
  • Due diligence: Petitioners failed to act promptly at multiple, distinct intervals (January–August 2023, August 2023–January 2024, January–May 2024).
• Because diligence must cover the whole delay period (Alzaarir), equitable tolling was unavailable.
• The petition for review was therefore denied.

3. Analysis

3.1 Precedents Cited

The Court anchors its reasoning in a constellation of Supreme Court and Third Circuit cases:

• Holland v. Florida, 560 U.S. 631 (2010) – Defined equitable tolling’s two-prong test (diligence + extraordinary circumstance) in habeas context; adopted by circuits in immigration matters.
• Alzaarir v. A.G., 639 F.3d 86 (3d Cir. 2011) – Articulated the “due diligence … over the entire period” requirement.
• Nkomo v. A.G., 986 F.3d 268 (3d Cir. 2021) – Clarified standard of review (de novo where facts undisputed) and reiterated diligence principles.
• Mahmood v. Gonzales, 427 F.3d 248 (3d Cir. 2005) & Zheng v. A.G., 549 F.3d 260 (3d Cir. 2008) – Earlier applications of equitable tolling in removal proceedings.
• Argueta-Orellana v. A.G., 35 F.4th 144 (3d Cir. 2022) – Confirmed jurisdiction under 8 U.S.C. § 1252 to review tolling denials.

The present decision distills these cases into a straightforward litmus: Were petitioners continuously diligent from the moment the clock started running until the date they finally attempted to file? If not, tolling fails.

3.2 Legal Reasoning

1. Standard of Review. Because the material facts were uncontested, the Court reviewed the BIA’s application of law de novo (Nkomo).
2. Two-Prong Test. The Court accepted, arguendo, that counsel’s illness might be “extraordinary.” However, petitioners still had to prove diligence.
3. Continuous Diligence Applied.
   • Gap 1 (Jan – Aug 2023): No record of steps to secure new counsel for ~6 months.
   • Gap 2 (Aug 2023 – Jan 2024): New counsel waited ~5 months before requesting files.
   • Gap 3 (Jan – May 2024): Further 4-month delay before finally appealing.
   Each gap independently undermined diligence; cumulatively, they were fatal.
4. Ancillary Arguments Rebuffed. Petitioners argued the IJ’s suggestion to seek tolling somehow excused delays; the Court found no causation or legal significance.

3.3 Impact of the Judgment

Although officially “not precedential,” Third Circuit practitioners often cite such opinions for their persuasive value. Key impacts include:

• “Continuous-Diligence” Clarification. Attorneys must keep contemporaneous records showing client effort throughout the tolling period. Sporadic bursts of activity will not suffice.
• Strategic Counsel Withdrawals. Counsel who must withdraw should warn clients that their diligence clock begins immediately; successor counsel must act promptly.
• Heightened Burden of Proof. Petitioners should expect searching scrutiny of every interval in the delay timeline and should provide affidavits or documentary evidence covering each.
• Federal–Circuit Uniformity. The decision aligns the Third Circuit with the more rigid diligence approach of circuits like the Second and Fifth, reducing forum shopping.

4. Complex Concepts Simplified

• Equitable Tolling: A judge-made doctrine that pauses (or “tolls”) a statutory deadline when fairness demands—typically where an extraordinary obstacle and the litigant’s own diligence coexist.
• BIA Appeal Period: Parties have 30 calendar days from an IJ’s decision to file an administrative appeal. This deadline is “jurisdictional” within the agency, meaning the BIA ordinarily cannot hear late appeals.
• Inadequate Assistance of Counsel vs. Extraordinary Circumstance: Poor or negligent lawyering can be an “extraordinary circumstance” only if objectively egregious and promptly addressed by the client.
• Continuous (or Whole-Period) Diligence: The obligation to pursue relief steadily from the moment the deadline begins until relief is sought. Think of it as an unbroken chain—any missing link breaks the argument for tolling.

5. Conclusion

Hernandez-Garcia reinforces a rigorous view of diligence in equitable-tolling analysis. Petitioners bear the burden of showing continuous, uninterrupted diligence for every day of delay. Extraordinary circumstances, even when compelling, cannot substitute for concrete, timely action by the litigant or new counsel.

Going forward, immigration lawyers should treat the 30-day appeal deadline as practically non-extendable. If an extension is unavoidable, meticulous documentation of efforts—phone logs, email trails, attorney-retainer dates—will be essential. The decision thus serves as both a cautionary tale and a practical roadmap for meeting the demanding equitable-tolling standard in immigration appeals.