De Novo Review of Equitable Tolling Diligence and No Tolling for Pending Rehearing/Certiorari in Immigration Motions to Reopen

De Novo Review of Equitable Tolling Diligence and No Tolling for Pending Rehearing/Certiorari in Immigration Motions to Reopen

Introduction

In Sylvestre Esteeven Point du Jour v. U.S. Attorney General, No. 23-11630 (11th Cir. Sept. 5, 2025) (per curiam), the Eleventh Circuit addressed when equitable tolling can revive an otherwise untimely immigration motion to reopen and what standard of review governs the Board of Immigration Appeals’ (BIA) diligence determinations. The petitioner, a noncitizen ordered removed after his counsel allegedly failed to file a critical waiver application, sought to reopen based on ineffective assistance of counsel. The BIA denied reopening, finding a lack of diligence in pursuing the motion within the 90-day statutory window. On petition for review, the court confronted three key issues:

  • Exhaustion: whether the petitioner adequately exhausted the equitable tolling issue before the BIA.
  • Standard of review: whether diligence for equitable tolling is reviewed de novo when the facts are undisputed.
  • Substantive tolling: whether petitioner’s pursuit of rehearing en banc and Supreme Court certiorari excused his delay in filing the motion to reopen.

The government argued that certain issues were unexhausted and that, in any event, the BIA correctly denied reopening. The Eleventh Circuit dismissed in part and denied in part, creating an important clarification of law in the circuit concerning the standard of review and the effect of pending appeals on reopening deadlines.

Summary of the Judgment

  • Exhaustion: The court held the petitioner adequately exhausted the “core issue” of equitable tolling diligence by presenting it to the BIA. See Indrawati; Jeune.
  • Scope of review: The court declined to entertain challenges to the motion-number bar and to Matter of Lozada compliance because the BIA did not rely on those grounds in denying reopening. Appellate review is limited to the agency’s stated grounds. See Regents; Bagamasbad; Malu.
  • Standard of review: The court adopted de novo review for the application of the equitable tolling due-diligence standard to undisputed facts, relying on Guerrero-Lasprilla and aligning with other circuits (e.g., Williams; Diaz-Valdez; Nkomo).
  • Diligence and extraordinary circumstances: Assuming equitable tolling was available through the date of the court’s 2020 decision (Point du Jour I), the petitioner waited an additional ~10 months before moving to reopen—well beyond the 90-day period. The pendency and resolution of a rehearing petition and certiorari did not constitute an extraordinary circumstance or otherwise excuse the delay. The court therefore held the petitioner lacked reasonable diligence and denied relief.
  • Disposition: Petition dismissed in part (issues not decided by BIA) and denied in part (equitable tolling).

Analysis

Precedents Cited and Their Role

  • Exhaustion and claims-processing:
    • 8 U.S.C. § 1252(d)(1) requires exhaustion of administrative remedies; it is a claims-processing rule typically enforced when asserted. See Kemokai.
    • Exhaustion is not “stringent” and focuses on whether the “core issue” was raised to the BIA. See Indrawati; Jeune.
    • Applied here, the court found the diligence/equitable tolling issue adequately exhausted because petitioner squarely raised it in his motion to reopen.
  • Scope of judicial review of agency decisions:
    • Courts review only the grounds invoked by the agency. See Regents (foundational principle), Bagamasbad (agencies need not reach unnecessary issues), Malu (no advisory opinions).
    • Because the BIA denied solely for lack of diligence and did not rely on the number-bar or Lozada in this round, the Eleventh Circuit dismissed those arguments.
  • Ineffective assistance and Lozada framework:
    • To reopen based on ineffective assistance, a noncitizen must show deficient performance affecting the fundamental fairness of the proceeding and prejudice. See Dakane.
    • Matter of Lozada imposes procedural prerequisites (e.g., affidavit, notice to prior counsel with opportunity to respond, bar complaint or explanation). While the BIA’s 2018 decision had addressed Lozada (and the Eleventh Circuit affirmed in Point du Jour I), those issues were not part of the BIA’s present denial and thus were not before the court this time.
  • Equitable tolling of the 90-day deadline:
    • By statute, a motion to reopen must be filed within 90 days of the final order. 8 U.S.C. § 1229a(c)(7)(C)(i). That deadline is nonjurisdictional and subject to equitable tolling. See Avila-Santoyo (en banc).
    • Standard for tolling: a litigant must show reasonable diligence and an extraordinary circumstance. See Pace; Avila-Santoyo; San Martin; Holland.
    • Diligence is case-specific and does not require “maximum feasible” efforts. See San Martin; Aron. But a litigant must explain why they waited. See Watkins.
  • Standard of review for diligence:
    • Application of a legal standard to undisputed facts is a question of law. See Guerrero-Lasprilla.
    • Other circuits treat equitable-tolling diligence as a legal question reviewed de novo when facts are undisputed. See Williams (4th Cir.); Diaz-Valdez (1st Cir.); Nkomo (3d Cir.). The Eleventh Circuit joined that approach here.
  • Simultaneous pursuit of remedies:
    • The Tenth Circuit’s Galvez-Pineda suggested noncitizens must pursue administrative and judicial relief simultaneously, not seriatim. The Eleventh Circuit observed that such a requirement may be inconsistent with its “reasonable diligence” precedent (Aron; San Martin) but declined to adopt or reject Galvez-Pineda because the petitioner’s delay would fail even under a more forgiving standard.
    • Unpublished Eleventh Circuit authority (Reis) has noted the INA’s 90-day deadline does not pause simply due to pending court proceedings.
  • Other guiding authorities:
    • Baldwin County Welcome Center emphasizes that equitable principles cannot rescue a lack of diligence.
    • Ross (Title VII context) underscores that tolling turns on when a party knew or should have known of the operative facts, not when they amassed evidence to prevail.

The Court’s Legal Reasoning

The panel began by confirming jurisdiction over the exhausted equitable tolling issue and clarifying that it would not reach arguments the BIA had not addressed in this round (e.g., assertions about Lozada or the number-bar). It then determined that, under Guerrero-Lasprilla and circuit precedent, the application of the diligence standard to undisputed facts is reviewed de novo.

Turning to diligence, the court reiterated the Eleventh Circuit’s definition: “reasonable,” not “maximum feasible,” diligence assessed case by case. It assumed, favorably to the petitioner, that equitable tolling could extend through June 4, 2020, when the court denied the prior petition (Point du Jour I)—the point at which the petitioner knew or should have known the facts underpinning the ineffective assistance claim against appellate counsel (namely, failure to satisfy Lozada).

Yet the petitioner waited approximately 10 additional months beyond that date to file a motion to reopen—substantially exceeding the 90-day period that would have applied even with tolling through June 2020. He pursued rehearing en banc (denied in August 2020) and then Supreme Court review (certiorari denied March 2021). The court held that these steps, while permissible, did not constitute an extraordinary circumstance warranting more tolling, nor did they otherwise excuse the delayed filing of a motion to reopen. Moreover, after certiorari was denied, the petitioner delayed another three months before filing—without explanation. That unexplained lag underscored a lack of reasonable diligence.

Because equitable tolling requires both diligence and an extraordinary circumstance, and because the petitioner failed the diligence prong on these undisputed facts, the court denied relief.

Concurrence Spotlight

District Judge Geraghty concurred in the judgment but wrote separately to disagree with aspects of the majority’s diligence analysis. The concurrence:

  • Agreed that de novo review is correct and that the standard is “reasonable diligence.”
  • Emphasized that pursuing nonfrivolous appellate remedies can itself be diligent pursuit of rights, especially when done on counsel’s advice. See Avagyan (9th Cir.); Lugo-Resendez (5th Cir.).
  • Warned against implicitly requiring simultaneous pursuit of judicial and administrative avenues as “maximum feasible diligence,” which may force inconsistent arguments in different fora.
  • Nevertheless agreed that the petitioner failed to explain the three-month delay after the Supreme Court denied certiorari—an omission fatal to diligence under Watkins and San Martin.
  • Cited further cases demonstrating that diligence does not demand perfection and can accommodate reasonable delays depending on context. See Gordillo (6th Cir.); Pervaiz (7th Cir.); Zhao (2d Cir.).

Impact and Practical Implications

This decision has concrete effects on both doctrine and practice:

  • Standard of review clarification:
    • The Eleventh Circuit now clearly applies de novo review to the question whether undisputed facts show “reasonable diligence” for equitable tolling in motions to reopen. This enhances appellate oversight and aligns the circuit with Guerrero-Lasprilla and the emerging consensus among other circuits.
    • Litigants can expect closer appellate scrutiny of the BIA’s application of diligence standards to settled facts, which may increase the likelihood of reversals where the BIA applies too stringent a diligence bar.
  • No tolling for pending rehearing/certiorari alone:
    • The court’s core practical message is that the time consumed by petitions for rehearing or certiorari does not by itself amount to an “extraordinary circumstance” and does not excuse a long delay in filing a motion to reopen.
    • Practitioners should strongly consider filing a protective or parallel motion to reopen within 90 days of when the client knew or should have known of the ineffective assistance, even while appellate remedies are pending—or, at a minimum, be prepared to offer a concrete, case-specific explanation for any delay.
  • Simultaneous pursuit remains unresolved but risky:
    • The panel expressly declined to adopt the Tenth Circuit’s simultaneous-pursuit requirement (Galvez-Pineda) and suggested it may be inconsistent with Eleventh Circuit “reasonable diligence” precedent. However, because the petitioner’s delay would fail under any approach, the court left the question open.
    • Until resolved, the safer course in the Eleventh Circuit is to avoid relying on pending appellate activity to justify deferred reopening. If simultaneous filings would force materially inconsistent positions, counsel should document and later explain the strategic basis for sequencing and any delays.
  • Guardrails on issue review:
    • Because the court will not review rationales the BIA did not invoke, parties must ensure that all desired issues (e.g., Lozada compliance challenges, number-bar defenses) are squarely presented to—and decided by—the BIA to preserve them for judicial review.

Complex Concepts Simplified

  • Motion to reopen:
    • An avenue to ask the immigration court/BIA to revisit a removal order based on new facts or changed circumstances. Generally limited to one motion within 90 days of a final order, with narrow statutory exceptions.
  • Equitable tolling:
    • A doctrine that allows extension of a filing deadline when the litigant exercised reasonable diligence but was prevented from timely filing by extraordinary circumstances. It is not automatic and is applied case by case.
  • Reasonable diligence vs. maximum feasible diligence:
    • Reasonable diligence requires practical, sensible efforts—not exhaustive pursuit of every possible path simultaneously. But the litigant must explain any significant delay.
  • Extraordinary circumstance:
    • Something external to the litigant that stands in the way of timely filing (e.g., egregious attorney misconduct or unavoidable external barriers). Routine appellate activity, standing alone, typically does not qualify.
  • Matter of Lozada requirements:
    • To claim ineffective assistance of counsel in immigration proceedings, the BIA generally requires: (1) a detailed affidavit explaining the agreement with prior counsel and the alleged failings; (2) notice to prior counsel with an opportunity to respond; and (3) filing a bar complaint or explaining why one was not filed.
  • Claims-processing rule vs. jurisdictional rule:
    • A claims-processing rule (like § 1252(d)(1)’s exhaustion requirement) is mandatory when invoked by an opposing party but is not jurisdictional. Courts enforce it but can, in some contexts, consider equitable or procedural nuances.
  • Scope of review principle (Regents/Bagamasbad):
    • Courts review only the reasons the agency actually gave. If the BIA denies on ground A but not grounds B and C, the court cannot affirm or reverse based on B or C.
  • De novo review of diligence:
    • “De novo” means the appellate court decides the legal question anew, without deferring to the BIA, when the facts are undisputed. Here, whether those facts show reasonable diligence is such a legal question.

What This Case Does (and Does Not) Decide

  • Decides:
    • Applying the equitable tolling diligence standard to undisputed facts is reviewed de novo in the Eleventh Circuit.
    • Pursuit and pendency of rehearing and certiorari do not, without more, excuse a late motion to reopen or constitute an extraordinary circumstance.
    • Equitable tolling failed on the facts for lack of reasonable diligence.
  • Does not decide:
    • Whether a noncitizen must simultaneously pursue BIA reopening while seeking judicial review (Galvez-Pineda remains neither adopted nor rejected).
    • Any current challenge to the Lozada framework or the motion-number bar, because the BIA did not rely on those grounds in this decision.
    • How diligence is assessed when the key facts are genuinely disputed (in such cases, deference to agency factfinding may still apply).

Practice Pointers

  • Calendar the 90-day reopening deadline from the date the client knew or should have known the underlying facts, and do not assume appellate proceedings will toll it.
  • Consider filing a protective motion to reopen while appellate remedies are pending, especially when ineffective assistance becomes apparent. If not feasible, meticulously document reasons for any delay and be prepared to explain them.
  • If simultaneous filings would require inconsistent positions, document the strategic rationale and ensure prompt action once appellate avenues close.
  • Preserve issues for judicial review by asking the BIA to decide them; arguments not addressed by the BIA generally cannot be reviewed by the court of appeals.
  • When asserting equitable tolling, present evidence addressing both elements: concrete steps showing diligence and the extraordinary circumstance that impeded timely filing.

Conclusion

Point du Jour establishes two significant guideposts for immigration litigation in the Eleventh Circuit. First, the court confirms that the application of equitable-tolling diligence to undisputed facts is reviewed de novo, aligning with Guerrero-Lasprilla and harmonizing with other circuits. Second, the panel sends a clear practical signal: pursuing rehearing and certiorari does not, by itself, justify delaying a motion to reopen beyond the 90-day window once the operative facts are known.

While the concurrence cautions against reading the opinion to require simultaneous litigation in multiple fora, both the majority and concurrence converge on a central lesson—unexplained delays, especially following the closure of appellate avenues, will defeat equitable tolling. Going forward, practitioners should protect their clients by acting promptly, preserving issues at the BIA, and furnishing robust, record-based explanations for any necessary delays. In the broader legal landscape, the decision fortifies appellate review of diligence determinations and refines the practical contours of equitable tolling in immigration reopening practice.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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