Equitable Tolling, Motions to Reconsider, and the Limits of Judicial Review of BIA Sua Sponte Authority: Commentary on Carhuamaca‑Vilcahuaman v. Bondi (10th Cir. 2025)

Equitable Tolling, Motions to Reconsider, and the Limits of Judicial Review of BIA Sua Sponte Authority:
Commentary on Carhuamaca‑Vilcahuaman v. Bondi (10th Cir. 2025)

I. Introduction

This commentary examines the Tenth Circuit’s unpublished order and judgment in Carhuamaca‑Vilcahuaman v. Bondi, No. 25‑9533 (10th Cir. Nov. 26, 2025), a petition for review arising out of removal proceedings against a Peruvian family.

Although designated as non‑precedential, the decision is important and instructive in three closely related areas of immigration procedure:

  1. How and when arguments for equitable tolling must be raised in motions to reopen and motions to reconsider before the Board of Immigration Appeals (BIA);
  2. The scope of abuse‑of‑discretion review of the BIA’s denials of motions to reconsider; and
  3. The severe limits on judicial review of the BIA’s refusal to invoke its sua sponte reopening and reconsideration authority under 8 C.F.R. § 1003.2(a), particularly after the Supreme Court’s clarification in Mata v. Lynch and the later ruling in Riley v. Bondi.

The ruling underscores a critical practice point: equitable tolling arguments must be timely and explicitly raised in the initial motion to reopen itself. Litigants cannot wait and attempt to introduce them for the first time in a motion to reconsider. The case also reinforces that the BIA’s sua sponte power is not a back‑door remedy for missed deadlines, and that courts of appeals will rarely disturb the BIA’s refusal to invoke that extraordinary authority.

II. Factual and Procedural Background

A. The underlying removal proceedings

The petitioners—Catalina Carhuamaca‑Vilcahuaman and her family—are Peruvian nationals who entered the United States without inspection in 2022. The Department of Homeland Security charged them as removable under 8 U.S.C. § 1182(a)(6)(A)(i), which covers noncitizens present in the U.S. without being admitted or paroled.

They conceded removability and applied for:

  • Asylum,
  • Withholding of removal, and
  • Relief under the Convention Against Torture (CAT).

An Immigration Judge (IJ) denied all relief and ordered removal to Peru. The petitioners appealed to the BIA, which on May 3, 2024, dismissed their appeal (the “May 3 Order”), thereby issuing the final administrative order of removal.

B. Missed deadline for petition for review

Under 8 U.S.C. § 1252(b)(1), a petition for review of a final removal order must be filed in the court of appeals “not later than 30 days after the date of the final order of removal.” Here, that deadline was June 3, 2024.

Petitioners’ counsel drafted a petition for review but, according to the record, suffered a medical emergency requiring surgery on May 28, 2024, and took medical leave until June 4—spanning and slightly overshooting the petition‑for‑review deadline.

Instead of filing in the Tenth Circuit, counsel filed with the BIA, on June 5, 2024, a motion asking the BIA to “extend” the June 3 deadline to file the petition for review with the court of appeals. The BIA, on August 23, 2024, rejected this motion, explaining that:

  • It had already rendered its May 3 decision; and
  • If petitioners sought further relief, they should file a proper motion to reopen or reconsider as an initiating document.

C. The motion to reopen

On September 18, 2024—over four months after the May 3 Order—the petitioners filed a motion to reopen with the BIA. They requested that the BIA:

  1. Reopen the case; and
  2. Reissue the May 3 decision to reset the 30‑day window for filing a petition for review in the Tenth Circuit.

They again described counsel’s surgery and medical leave, as well as his attempt to preserve their rights by the June 5 filing. Crucially, however:

  • The motion to reopen did not meaningfully address its own timeliness under the 90‑day limitation in 8 U.S.C. § 1229a(c)(7)(C)(i); and
  • It did not explicitly invoke equitable tolling as to the 90‑day deadline for filing a motion to reopen.

On December 19, 2024, the BIA denied the motion as untimely:

  • Under § 1229a(c)(7)(C)(i) and its regulations, a motion to reopen generally must be filed within 90 days of the final administrative removal order.
  • The motion was filed more than four months after May 3, 2024, and petitioners had not shown that any statutory or regulatory exception applied.

The BIA also declined to exercise its sua sponte authority, explaining that:

  • It had no authority to extend the statutory deadline for filing a petition for review in the court of appeals;
  • While it has occasionally reissued decisions, it does so “generally” only in cases of its own error or administrative failures in service or receipt of the decision; and
  • No such Board error or service problem had been alleged in this case.

The petitioners did not file a petition for review from that December 19, 2024 denial of reopening.

D. The motion for reconsideration

On January 21, 2025, the petitioners filed a motion to reconsider the BIA’s denial of their motion to reopen. They now explicitly argued:

  • That the BIA should apply equitable tolling to the 90‑day deadline for their motion to reopen, based on counsel’s surgery and medical leave; and
  • That their June 5 filing and subsequent efforts showed diligence.

They also renewed their request that the BIA exercise sua sponte authority to reopen and reissue the May 3 Order, arguing that the time during which the June 5 filing was pending before the BIA should not count against the 90‑day clock.

The BIA denied the motion for reconsideration. It held that:

  • A motion to reconsider must specify errors of law or fact in the prior order and be supported by pertinent authority (8 U.S.C. § 1229a(c)(6)(C));
  • The petitioners had not identified any specific error in the BIA’s December 19 denial of reopening; and
  • They were attempting to raise a new equitable tolling argument that could, and should, have been raised in the original motion to reopen—contrary to BIA precedent in In re O‑S‑G‑, 24 I. & N. Dec. 56 (B.I.A. 2006).

The BIA also refused, again, to invoke sua sponte reopening or reconsideration, relying on In re J‑J‑, 21 I. & N. Dec. 976 (B.I.A. 1997), and In re G‑D‑, 22 I. & N. Dec. 1132 (B.I.A. 1999), for the proposition that:

  • Sua sponte authority is “not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship”; and
  • That power is an “extraordinary remedy” reserved for “truly exceptional situations.”

E. Petition for review to the Tenth Circuit

The petitioners then filed a petition for review in the Tenth Circuit, challenging the BIA’s denial of their motion to reconsider. They argued:

  • The BIA had “overlooked” the factual circumstances justifying equitable tolling; and
  • The BIA should have either granted reconsideration or exercised sua sponte authority to reopen and reissue the May 3 Order in the interests of justice.

The Tenth Circuit:

  • Denied the petition insofar as it challenged the denial of the motion to reconsider; and
  • Dismissed the petition in part for lack of jurisdiction insofar as it sought review of the BIA’s refusal to reopen or reconsider sua sponte.

III. Summary of the Opinion

  1. Jurisdiction over denial of reconsideration.
    • Relying on 8 U.S.C. § 1252(a)(1) and the Supreme Court’s decision in Mata v. Lynch, 576 U.S. 143 (2015), the Tenth Circuit confirmed that it has jurisdiction to review the BIA’s denial of a motion to reconsider.
    • The court applied the abuse‑of‑discretion standard from Berdiev v. Garland, 13 F.4th 1125 (10th Cir. 2021).
  2. No abuse of discretion in denying reconsideration.
    • The BIA reasonably concluded that the petitioners’ equitable tolling argument was a new argument not made in the original motion to reopen.
    • Because a motion to reconsider cannot be used to raise legal theories that could have been raised earlier, the BIA’s reliance on its precedent in In re O‑S‑G‑ was appropriate.
    • The petitioners had not shown any specific error of law or fact in the BIA’s December 19 denial of reopening.
  3. Lack of jurisdiction to review refusal to act sua sponte.
    • Under Reyes‑Vargas v. Barr, 958 F.3d 1295 (10th Cir. 2020), the court generally lacks jurisdiction to review the BIA’s refusal to exercise its sua sponte power because there is no meaningful standard to apply.
    • A narrow exception exists where the BIA relies on an incorrect legal premise or misperceives the legal background, but the petitioners made no such argument.
    • Their arguments merely challenged the BIA’s discretionary decision about whether their circumstances were “exceptional,” which is not reviewable.
    • Even under the narrow exception, the court found that the BIA’s reasoning aligned with its precedents (O‑S‑G‑, J‑J‑, G‑D‑), so there was no misperception of law.
  4. Disposition.
    • The court denied the petition for review insofar as it challenged the denial of the motion to reconsider.
    • It dismissed the petition in part for lack of jurisdiction insofar as it sought to challenge the BIA’s refusal to act sua sponte.

IV. Detailed Analysis

A. Precedents and authorities cited

1. Mata v. Lynch, 576 U.S. 143 (2015)

The Tenth Circuit invokes Mata to confirm jurisdiction under 8 U.S.C. § 1252(a)(1) to review denials of motions to reopen or reconsider. In Mata, the Supreme Court held that:

  • Circuit courts retain jurisdiction to review BIA denials of motions to reopen, even when the BIA declines to equitably toll its own time limits; and
  • The existence of discretionary and equitable aspects in reopening does not strip courts of jurisdiction.

In Carhuamaca‑Vilcahuaman, this principle allows the Tenth Circuit to review whether the BIA abused its discretion in denying reconsideration, even though the ultimate relief sought (reopening and reissuance of the BIA’s prior decision) is discretionary.

2. 8 U.S.C. § 1252(b)(1) and Riley v. Bondi, 606 U.S. 259 (2025)

The opinion notes that § 1252(b)(1) sets a 30‑day deadline for filing petitions for review and that the Supreme Court has “recently clarified” in Riley v. Bondi that this 30‑day rule is not jurisdictional, but rather a claim‑processing rule.

This has an important structural consequence:

  • If the rule is not jurisdictional, a court of appeals may, in appropriate cases, consider equitable tolling, forfeiture, waiver, or other exceptions; but
  • The BIA, as an administrative body, still has no authority to “extend” a statutory filing deadline for filing in the court of appeals.

The BIA acknowledged this limitation when it stated it had “no authority to extend the time limit for filing a petition for review.” Carhuamaca‑Vilcahuaman effectively aligns with Riley by:

  • Recognizing the non‑jurisdictional nature of § 1252(b)(1) (as Riley holds), yet
  • Confirming that only the courts—not the BIA—control whether the 30‑day timeframe is relaxed as a matter of equitable tolling or related doctrines.

3. 8 U.S.C. § 1229a(c)(7)(C)(i): 90‑Day Limit for Motions to Reopen

The BIA’s December 19 denial of reopening rested squarely on § 1229a(c)(7)(C)(i), which establishes a general 90‑day deadline for filing motions to reopen removal proceedings. This deadline is subject to limited statutory and regulatory exceptions (e.g., for certain changed country conditions or joint motions).

Crucially, the petitioners’ motion to reopen:

  • Was filed more than four months after the May 3 Order; and
  • Did not explicitly argue that equitable tolling should apply to this 90‑day reopening deadline.

Thus, the BIA found no basis, statutory or regulatory, to excuse untimeliness.

4. 8 U.S.C. § 1229a(c)(6)(C): Requirements for a Motion to Reconsider

Section 1229a(c)(6)(C) provides that a motion to reconsider:

  • Must “specify the errors of law or fact in the previous order”; and
  • Must be “supported by pertinent authority.”

The Tenth Circuit emphasizes these requirements and notes that the BIA applied them straightforwardly: the petitioners were not actually pointing to an error in the December 19 reopening denial, but were instead attempting to introduce a new equitable tolling theory that could have been made in September 2024.

5. BIA precedents on reconsideration and sua sponte power

  • In re O‑S‑G‑, 24 I. & N. Dec. 56 (B.I.A. 2006).
    This BIA precedent holds that:
    • A motion to reconsider based on a legal argument that could have been raised earlier will be denied; and
    • A party may not simply restate prior arguments or use reconsideration as a vehicle for belated new theories.
    The Tenth Circuit relies heavily on this authority in affirming the BIA’s denial of reconsideration. The court explicitly quotes O‑S‑G‑ for the proposition that a motion to reconsider is not a process for submitting “the same brief presented on appeal” or for raising new arguments that previously could have been made.
  • In re J‑J‑, 21 I. & N. Dec. 976 (B.I.A. 1997).
    The BIA in J‑J‑ cautioned that its sua sponte reopening power “is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.” The Board cited this in declining to use sua sponte reconsideration as a way to rescue the petitioners from their missed deadlines.
  • In re G‑D‑, 22 I. & N. Dec. 1132 (B.I.A. 1999) (en banc).
    G‑D‑ describes sua sponte reopening as an “extraordinary remedy reserved for truly exceptional situations” and clarifies that the Board invokes it “sparingly,” not as a general remedy to evade time and number limits on motions.

    The Tenth Circuit notes the BIA’s reliance on this principle and treats it as a correct statement of law, concluding that the Board did not misperceive the legal background when it refused to reopen or reconsider sua sponte.

6. Tenth Circuit precedents: Berdiev and Reyes‑Vargas

  • Berdiev v. Garland, 13 F.4th 1125 (10th Cir. 2021).
    Berdiev articulates the Tenth Circuit’s standard of review for BIA denials of motions to reconsider:
    • Abuse of discretion; and
    • Legal error is per se an abuse of discretion.
    An abuse occurs where the BIA:
    • Offers no rational explanation,
    • Departs inexplicably from established policies,
    • Provides reasoning that is devoid or conclusory, or
    • Commits legal error.
    Here, the Tenth Circuit concluded that none of these defects were present.
  • Reyes‑Vargas v. Barr, 958 F.3d 1295 (10th Cir. 2020).
    This case frames the Tenth Circuit’s approach to reviewing BIA refusals to exercise sua sponte authority:
    • As a general rule, such decisions are unreviewable because there is no meaningful standard against which to judge the BIA’s discretion.
    • The court recognizes a “narrow exception” where the BIA relies on an incorrect legal premise or misperceives the legal background—e.g., where the BIA incorrectly believes it lacks authority to consider a class of motions.
    In Carhuamaca‑Vilcahuaman, the petitioners did not even purport to invoke this narrow exception; they simply argued the Board should have exercised its discretion differently. The Tenth Circuit therefore dismissed for lack of jurisdiction.

B. The Court’s Legal Reasoning

1. Denial of the motion to reconsider

The Tenth Circuit’s reasoning proceeds in several steps:

  1. Identify the proper scope of a motion to reconsider.
    • By statute, a motion to reconsider must “specify the errors of law or fact in the previous order” and be supported by pertinent authority.
    • By BIA precedent (O‑S‑G‑), it cannot be used as a vehicle to:
      • Raise new arguments that could have been raised earlier; or
      • Repackage the same arguments without identifying specific error.
  2. Examine what the petitioners actually argued in the motion to reopen.
    • The court notes that the motion to reopen:
      • Did not frame its request as one for equitable tolling of the 90‑day reopening deadline;
      • Did not explain why counsel’s medical leave (ending June 4) prevented filing a motion to reopen within 90 days of May 3; and
      • Did not even concede that the motion itself was untimely.
    • At most, the motion referred in a general way to “the best interest of justice,” arguably in connection with the deadline for filing a petition for review—not the reopening deadline.
  3. Compare that with the arguments in the motion to reconsider.
    • In the motion to reconsider, the petitioners explicitly asked the BIA to equitably toll the 90‑day deadline for filing the motion to reopen.
    • This was a materially new theory—the precise tolling argument now tied to the reopening deadline rather than the petition‑for‑review deadline.
  4. Conclude that the BIA treated equitable tolling as a new argument.
    • The Tenth Circuit agrees that the equitable tolling argument advanced in the motion to reconsider was, in fact, new.
    • Petitioners’ later characterization—that the motion to reopen had “implicitly” sought equitable tolling via its justice language—could not overcome the absence of any express argument tying tolling to the 90‑day reopening deadline or acknowledging untimeliness.
  5. Apply abuse‑of‑discretion review.
    • Because O‑S‑G‑ allows the BIA to deny reconsideration where a party presents legal arguments that could have been raised earlier, and
    • Because petitioners failed to point to specific factual or legal errors in the December 19 decision,
    • The Tenth Circuit holds that the BIA’s denial of reconsideration fell comfortably within its discretion and complied with governing law.

In short, the court does not decide whether equitable tolling of the 90‑day deadline could have been appropriate. Instead, it holds that the petitioners procedurally defaulted that argument by not raising it in the motion to reopen, rendering it unavailable as a basis for reconsideration.

2. Refusal to exercise sua sponte authority

On the sua sponte issue, the court’s reasoning is more jurisdictional than substantive:

  1. General nonreviewability.
    • Drawing from Reyes‑Vargas, the court reiterates that it typically has no jurisdiction to review the BIA’s decision not to reopen or reconsider removal proceedings sua sponte, because no judicially manageable standard exists.
  2. Narrow exception for legal error.
    • The court acknowledges a narrow exception: it may intervene if the BIA’s refusal rests on an incorrect legal premise or misperception of its own authority or the governing law.
    • For instance, if the BIA erroneously believed it lacked authority to consider a particular motion, that misperception could be reviewable.
  3. Petitioners did not invoke the exception.
    • The petitioners did not argue that the BIA misread any statute, misapplied a Supreme Court case, or misunderstood its own regulations.
    • They argued only that, in the interests of justice, the BIA should have reopened.
  4. No misperception of law in the BIA’s reasoning.
    • The Tenth Circuit nonetheless reviews the BIA’s explanations “to the extent” it has jurisdiction and finds no legal misperception.
    • The BIA correctly cited:
      • O‑S‑G‑ for the limited scope of reconsideration,
      • J‑J‑ for the proposition that sua sponte authority is not a cure‑all for filing defects, and
      • G‑D‑ for the extraordinary nature of sua sponte reopening.
    • These citations show that the Board understood and properly applied its own precedents.
  5. Result:
    • Because the BIA’s refusal was an exercise of unreviewable discretion, and no legal error was shown, the court held it lacked jurisdiction over the sua sponte aspect of the petition and dismissed that part.

C. Impact and Implications

1. Procedural discipline in raising equitable tolling arguments

The most immediate practical lesson of Carhuamaca‑Vilcahuaman is that equitable tolling arguments must be raised explicitly and at the earliest procedural opportunity, particularly in motions to reopen:

  • If a motion to reopen is untimely, counsel must:
    • Explicitly acknowledge untimeliness;
    • Clearly request equitable tolling of the 90‑day limit;
    • Detail both extraordinary circumstances (e.g., medical emergency, serious misconduct, or unavoidable external obstacles) and diligence in pursuing relief.
  • Equitable tolling cannot safely be left implicit in vague references to the “interests of justice.”
  • Counsel should separately distinguish any tolling requests concerning:
    • Statutory deadlines for motions to reopen (before the BIA), and
    • Statutory deadlines for petitions for review (before the court of appeals).

By treating tolling as a “new argument” at the reconsideration stage, the BIA (and the Tenth Circuit) send a clear message that litigants cannot rely on reconsideration to introduce new legal theories that could have been advanced earlier.

2. Limited remedial role of motions to reconsider

The decision also clarifies the narrow function of a motion to reconsider:

  • It is a targeted tool to correct specific errors of law or fact in a prior order; it is not a second appeal or an invitation to reargue the case.
  • Where the alleged error is the party’s own failure to make an argument (e.g., equitable tolling) at the appropriate time, reconsideration will not be an available remedy unless the party can show that the BIA itself misapplied law or overlooked material facts already in the record.

For practitioners, this reinforces the need to treat motions to reopen as the primary and comprehensive vehicle for post‑decision relief. Reconsideration should be used sparingly and only when there is a clear, articulable error in the BIA’s reasoning or fact‑finding.

3. Confirmation of strict limits on review of BIA sua sponte decisions

The Tenth Circuit once again confirms that:

  • The BIA’s decision not to reopen or reconsider sua sponte is almost entirely unreviewable by the courts; and
  • Litigants cannot rely on the sua sponte mechanism as a back‑up remedy for:
    • Missed statutory or regulatory deadlines, or
    • Ordinary hardships that flow from strict enforcement of time limits.

The narrow jurisdictional exception—where courts may intervene if the BIA misperceives its own authority or misreads binding law—remains intact but is seldom useful. Petitioners in Carhuamaca‑Vilcahuaman did not even attempt to invoke that exception, and the court saw no sign that the BIA misunderstood Riley, Mata, or its own precedents.

4. Interaction with Riley v. Bondi and the non‑jurisdictional petition‑for‑review deadline

The case appears against the backdrop of the Supreme Court’s decision in Riley v. Bondi, which held that the 30‑day deadline in § 1252(b)(1) to file a petition for review is not jurisdictional. Though the Tenth Circuit does not fully explore the implications of Riley, several important consequences emerge:

  • Courts of appeals now have greater flexibility to consider equitable tolling or waiver of the 30‑day deadline in appropriate circumstances;
  • However, that flexibility resides only with the courts, not the BIA. The BIA correctly concluded it has “no authority” to extend the petition‑for‑review deadline; and
  • Reissuance of a BIA decision is a separate, limited tool that the Board will generally use only to correct its own or administrative errors, not as a mechanism to offset counsel’s mistakes or external events unrelated to Board error.

Consequently, where counsel’s failure to file a timely petition for review is due to extraordinary circumstances (such as medical emergencies), the proper course is typically:

  1. To file in the court of appeals as soon as possible, and
  2. To expressly request equitable tolling of § 1252(b)(1), supported by evidence of diligence and extraordinary circumstances.

Attempting to obtain relief only from the BIA—through reopening, reconsideration, or reissuance—may not preserve or secure judicial review.

5. Attorney error, client prejudice, and possible alternative remedies

An underlying theme is attorney performance. Petitioners alleged that counsel’s medical emergency and associated leave contributed to missing the petition‑for‑review deadline. The opinion does not address, but implicitly raises, the question of whether:

  • An ineffective assistance claim under Matter of Lozada procedures might have been available; or
  • Direct equitable tolling arguments to the Tenth Circuit (rather than to the BIA) might have been made under Riley.

Because the petitioners did not file a petition for review of the BIA’s December 19 denial of reopening and framed their tolling arguments only at the reconsideration stage before the BIA, the Tenth Circuit never reaches these issues.

The lesson for practitioners is that multiple, coordinated steps may be required to protect a client where counsel error or unforeseen events endanger compliance with deadlines:

  • Prompt petition for review to the court of appeals, accompanied by equitable tolling arguments under § 1252(b)(1);
  • Timely motion to reopen to the BIA, specifically invoking equitable tolling of § 1229a(c)(7)(C)(i) if the 90‑day limit has passed; and
  • Where appropriate, a Lozada‑compliant ineffective assistance motion.

V. Simplifying Key Legal Concepts

1. Motion to reopen vs. motion to reconsider

  • Motion to reopen
    • Asks the BIA (or IJ) to open the case again to consider new evidence or changed circumstances.
    • Generally must be filed within 90 days of the final removal order (8 U.S.C. § 1229a(c)(7)(C)(i)).
    • Often requires a showing that:
      • The new evidence is material and was not previously available; and
      • The motion is timely or that an exception (statutory, regulatory, or equitable) applies.
  • Motion to reconsider
    • Does not introduce new facts; instead, it argues that the prior decision was legally or factually incorrect based on the existing record.
    • Must identify specific errors of law or fact and cite pertinent authority (8 U.S.C. § 1229a(c)(6)(C)).
    • Cannot be used simply to make arguments that could have been advanced earlier or to rehash old arguments.

2. Equitable tolling

Equitable tolling is a judge‑made doctrine that allows a court or agency to forgive a missed deadline in exceptional circumstances. To obtain equitable tolling, a party generally must show:

  1. Extraordinary circumstances beyond their control that prevented timely filing (e.g., severe illness, misleading conduct by the government, catastrophic events); and
  2. Diligence in pursuing their rights, both before and after the extraordinary event.

In the immigration context, courts have recognized that both the 90‑day deadline for motions to reopen and, now under Riley, the 30‑day deadline for petitions for review can be subject to equitable tolling, though relief is rare and fact‑intensive.

3. Sua sponte reopening

“Sua sponte” means “on its own motion.” Under 8 C.F.R. § 1003.2(a), the BIA may “at any time” reopen or reconsider any case in which it has rendered a decision, without a motion from either party. But:

  • The BIA has described this power as an extraordinary remedy reserved for “truly exceptional situations.”
  • Board precedents stress that it is not a general safety valve to excuse untimely filings or bypass statutory limits whenever hardship is present.
  • Circuit courts, including the Tenth, treat the BIA’s decision not to act sua sponte as almost entirely unreviewable, except where the BIA misperceives its own legal authority.

4. Jurisdictional vs. claim‑processing rules

A jurisdictional rule is one that, if violated, deprives a court of power to hear a case. A claim‑processing rule is a mandatory rule that governs how and when parties must present their claims but does not limit the court’s fundamental authority.

  • If a rule is jurisdictional:
    • Courts cannot apply equitable exceptions; and
    • Parties cannot waive or forfeit the rule.
  • If a rule is claim‑processing:
    • Courts may, in rare circumstances, apply equitable doctrines like tolling, waiver, or forfeiture;
    • But the rule remains mandatory unless such an exception is properly invoked.

In Riley v. Bondi, the Supreme Court clarified that the 30‑day petition‑for‑review deadline in § 1252(b)(1) is a claim‑processing rule, not jurisdictional. Carhuamaca‑Vilcahuaman reflects this understanding but also makes clear that the BIA cannot itself modify that deadline; any flexibility lies with the courts.

VI. Conclusion

Carhuamaca‑Vilcahuaman v. Bondi illustrates the unforgiving nature of immigration deadlines and the narrow remedial scope of motions to reconsider and sua sponte reopening. While sympathetic facts—such as an attorney’s medical emergency—might support equitable tolling in theory, they must be presented in the right forum, at the right time, and in the right procedural posture.

Key takeaways include:

  • Equitable tolling arguments must be raised explicitly in the motion to reopen itself, with specific reference to the statutory deadline at issue and a detailed showing of extraordinary circumstances and diligence.
  • A motion to reconsider is not a vehicle for debuting new legal theories that could have been raised earlier; it is limited to pointing out concrete errors in the prior order.
  • The BIA’s refusal to exercise its sua sponte authority to reopen or reconsider remains largely beyond judicial review, absent a misperception of law or authority.
  • After Riley v. Bondi, the 30‑day petition‑for‑review deadline is non‑jurisdictional, but this flexibility resides with the court of appeals, not the BIA. Practitioners must seek tolling directly from the court where appropriate.

Although this Tenth Circuit ruling is labeled as non‑precedential, it offers a clear and persuasive roadmap for counsel navigating motions to reopen and reconsider in immigration cases. It reaffirms that procedural rigor and prompt, explicit invocation of equitable doctrines are essential to preserving both administrative and judicial remedies in the high‑stakes context of removal proceedings.

Case Details

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

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