Equitable Tolling After a True Change in Law: The BIA Abuses Discretion When It Denies Reopening Based on a Misreading of the Movant’s “Change-in-Law” Theory

1. Introduction

Ramsay v. Bondi (2d Cir. Mar. 27, 2026) addresses when an immigrant may obtain equitable tolling of the strict filing deadlines for motions to reopen or reconsider a long-final removal order after intervening precedent changes the legal landscape. The petitioner, John Marcus Ramsay, a lawful permanent resident removed in 2007 based on a 1996 New York drug conviction, sought reopening after the Second Circuit’s 2023 decision in United States v. Minter held—“for the first time”—that the “narcotic drug” definition in his statute of conviction (NYPL § 220.39(1)) is categorically overbroad compared to the federal Controlled Substances Act.

The key issue was not whether Minter helped Ramsay (the court treated that as the relevant change), but whether the Board of Immigration Appeals (BIA) permissibly denied equitable tolling on the ground that Ramsay should have moved earlier—after the Second Circuit’s 2017 decision in Harbin v. Sessions. The Second Circuit granted the petition and remanded, holding that the BIA’s due-diligence ruling rested on a misreading of Ramsay’s arguments and could not stand under abuse-of-discretion review.

2. Summary of the Opinion

The Second Circuit:

• Granted Ramsay’s petition for review of the BIA’s denial of his statutory motions to reconsider and reopen.
• Granted Ramsay’s motion to stay removal.
• Vacated the BIA’s order and remanded for the BIA to reconsider equitable tolling “in light of Minter.”

The court did not decide whether equitable tolling ultimately applies; it held that the BIA’s reasoning for denying tolling—treating Harbin as the “fundamental change in law” triggering diligence obligations—was based on a misunderstanding of Ramsay’s submissions and therefore constituted an abuse of discretion.

In addition, the court rejected the government’s alternative theory that Ramsay lacked diligence because he did not raise statutory overbreadth arguments even before Harbin, citing Perez v. Bondi for the proposition that a litigant need not pursue claims that were barred by then-existing law.

3. Analysis

3.1. Precedents Cited

United States v. Minter, 80 F.4th 406 (2d Cir. 2023)

Minter is the doctrinal hinge of the case. The panel emphasized that only with Minter did the Second Circuit hold “for the first time” that NYPL § 220.39(1)’s “narcotic drug” definition is “categorically broader than” the federal definition. That matters because Ramsay’s equitable-tolling theory depended on identifying the point at which controlling law newly “entitle[d] him to relief from removal.” By moving within thirty days of Minter, Ramsay framed his conduct as diligent relative to the actual change that could negate removability.

The Second Circuit’s remand directs the BIA to evaluate diligence with Minter—not Harbin—as the relevant legal turning point, unless the BIA can justify some other legally and factually supported trigger.

Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017)

The BIA treated Harbin as the earlier “fundamental change in the law” that should have prompted Ramsay to act. Harbin held that the term “controlled substance” in NYPL § 220.31 was indivisible as to substance type and broader than the federal definition.

The Second Circuit did not hold that Harbin is irrelevant in all similar cases; rather, it held that the BIA erred in attributing to Ramsay the argument that Harbin itself eliminated the basis for his removability. Ramsay cited Harbin only for an indivisibility proposition by analogy, not for categorical overbreadth of “narcotic drug.” The panel’s core point: the BIA cannot deny equitable tolling by recasting a movant’s theory into a different “change in law” than the one actually advanced and supported.

Jin Bo Zhao v. INS, 452 F.3d 154 (2d Cir. 2006) (per curiam)

Jin Bo Zhao v. INS supplied the Second Circuit’s foundational articulation that equitable tolling requires the movant to exercise “due diligence” in vindicating rights. The case serves as the doctrinal entry point for tolling in immigration reopening practice: filing deadlines are strict, and tolling is exceptional.

Lozano v. Montoya Alvarez, 572 U.S. 1 (2014)

Lozano v. Montoya Alvarez provided the general equitable-tolling formulation: a litigant qualifies only if he “has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” In Ramsay, the court used this standard to frame what the BIA must assess on remand: whether the timing of Ramsay’s motion, measured against the actual change in law that made the claim viable, reflects diligence under equitable principles.

Holland v. Florida, 560 U.S. 631 (2010)

Holland v. Florida was cited for the methodological point that due diligence is an “equitable, often fact-intensive inquiry” requiring judges to consider “in detail” the litigant’s efforts. This reference reinforced the Second Circuit’s criticism of the BIA’s approach: the BIA anchored its diligence analysis to a mischaracterized premise (that Ramsay claimed Harbin was the relevant change), rather than conducting the detailed, accurate, equitable inquiry demanded by Holland.

Garcia Pinach v. Bondi, 147 F.4th 117 (2d Cir. 2025)

Garcia Pinach v. Bondi supplied the standard of review: denials of motions to reopen, including equitable tolling determinations, are reviewed for abuse of discretion and that review is “highly deferential.” Importantly, the court’s willingness to vacate despite deference underscores the magnitude of the BIA’s error: when the agency’s diligence analysis rests on a basic misunderstanding of what the movant argued and what change in law mattered, it crosses the abuse-of-discretion threshold.

Luna v. Holder, 637 F.3d 85 (2d Cir. 2011)

Luna v. Holder was cited for the proposition that the court reviews constitutional claims and questions of law de novo. In practice, Ramsay blends deferential and non-deferential review: while the ultimate equitable tolling determination is reviewed for abuse of discretion, whether the BIA based its decision on a legally erroneous or factually misconstrued premise presents a reviewable error even under a deferential lens.

Perez v. Bondi, 166 F.4th 327 (2d Cir. 2026)

Perez v. Bondi played a decisive role in rejecting the government’s fallback argument that Ramsay should have “preserve[d] his rights” by raising statutory overbreadth arguments even before Harbin. Quoting Perez, the Second Circuit reiterated: “[P]etitioners whose claims for relief are barred by law have no rights to pursue until the law changes to entitle them to relief.” Thus, “reasonable diligence” does not require litigants to file motions advancing arguments that the agency has “unequivocally rejected.”

Bent v. Garland, 115 F.4th 934 (9th Cir. 2024)

Although a Ninth Circuit case, Bent v. Garland reinforced the Second Circuit’s view of diligence in the change-in-law context: before the relevant change, a petitioner may have “no basis to know or suspect that he had any rights to pursue.” The citation supports a cross-circuit convergence on a practical principle: diligence is measured from when the claim becomes reasonably knowable and legally viable, not from an earlier period when controlling law made the claim futile.

3.2. Legal Reasoning

The opinion’s reasoning proceeds in three main steps:

1. Deadlines and the need for tolling. The court noted the statutory and regulatory deadlines: motions to reopen generally within 90 days and motions to reconsider within 30 days of finality. Ramsay’s order became final in 2007, so his 2023 filing was untimely unless equitably tolled.
2. What triggered the duty to act? The BIA denied tolling because it believed Ramsay could have moved after Harbin. The Second Circuit held this rested on a key factual/legal mistake: Ramsay did not argue that Harbin established categorical overbreadth of NYPL § 220.39(1). He cited Harbin only on indivisibility by analogy, while identifying Minter as the decision that made “narcotic drug” categorically overbroad. Because the BIA “misread and misunderstood” the motions, its diligence analysis was defective at the foundation.
3. Futility and preservation. The government urged affirmance on the ground that Ramsay should have raised overbreadth arguments even earlier. The court rejected that approach under Perez v. Bondi: due diligence does not require pursuing arguments foreclosed by settled law.

The upshot is a procedural but important administrative-law holding: even under highly deferential review, the BIA abuses its discretion if it denies reopening based on a mischaracterization of the movant’s change-in-law theory and then uses that mischaracterization to find a lack of diligence.

3.3. Impact

Ramsay is likely to matter in three recurring reopening scenarios:

• Change-in-law reopening after “categorical approach” developments. Where later precedent establishes that a state statute is not a categorical match for a federal removal ground, litigants often file long after finality. Ramsay strengthens the argument that diligence should be evaluated from the moment the claim became legally viable (here, Minter), not from earlier decisions that addressed related but non-dispositive issues (here, Harbin).
• Constraining agency “reframing” of a movant’s theory. The decision signals that the BIA must engage the movant’s actual argument rather than substituting a different triggering event for diligence analysis. This is especially important where multiple precedents exist in the same doctrinal neighborhood (indivisibility vs. overbreadth) but only one precedent actually supplies the missing element for relief.
• Futility doctrine in equitable tolling. By adopting Perez v. Bondi and invoking Bent v. Garland, the opinion reinforces that petitioners are not required to file “placeholder” motions raising arguments that the BIA or circuit precedent had already rejected. This may reduce the incentive for defensive, premature filings and focus the diligence inquiry on real-world ability to identify and pursue a claim.

Practically, Ramsay may increase remands where the BIA’s due-diligence findings rely on an imprecise understanding of what the movant argued or which precedent truly changed the case’s removability calculus.

4. Complex Concepts Simplified

• Motion to reopen vs. motion to reconsider: A motion to reopen typically asks to re-start proceedings based on new facts or changed circumstances; a motion to reconsider asks the agency to re-evaluate its decision because it applied the law incorrectly. Both have strict deadlines.
• Equitable tolling: A doctrine that can “pause” or extend a filing deadline when fairness requires it—usually because, despite diligent effort, something extraordinary prevented timely filing.
• Due diligence: The requirement that the movant acted reasonably promptly and persistently in pursuing the claim once it became possible to do so. It is not a demand for perfect lawyering; it is a context-sensitive inquiry into what the person could and should have done.
• Categorical overbreadth (categorical approach): Courts compare the elements of the state offense to the federal definition. If the state law covers more conduct/substances than the federal definition, it is “overbroad,” and the conviction may not trigger the federal immigration consequence.
• Divisibility / indivisibility: A statute is “divisible” if it lists alternative elements (effectively multiple crimes). If it is “indivisible,” courts cannot narrow the conviction by looking at the record to pick a particular alternative; they must treat the conviction as covering the statute’s full breadth.
• Sua sponte reopening: A discretionary power of the BIA to reopen on its own initiative even when statutory requirements are not met. The Second Circuit did not reach that issue because it remanded based on error in the statutory equitable-tolling analysis.

5. Conclusion

Ramsay v. Bondi stands for a focused but consequential principle in immigration reopening practice: the BIA cannot deny equitable tolling for lack of due diligence by misreading a petitioner’s change-in-law argument and pegging diligence to the wrong precedent. The Second Circuit’s remand requires the agency to reconsider diligence using the actual legal development that made relief realistically available—here, United States v. Minter—and reinforces (via Perez v. Bondi) that litigants are not required to pursue claims that were foreclosed before the law changed. In an era where categorical-approach rulings frequently arrive years after removal orders become final, the decision provides an important procedural safeguard: equitable tolling must be evaluated on an accurate account of both the movant’s theory and the moment the law actually opened a path to relief.