Equitable Tolling After State-Court Vacatur: Fifth Circuit Clarifies That Petitioners Must Show Specific, Pre‑Vacatur Diligence to Reopen Removal Proceedings

Introduction

In Rosa Arevalo v. Bondi, the United States Court of Appeals for the Fifth Circuit denied consolidated petitions for review challenging the Board of Immigration Appeals’ (BIA) denials of a motion to reopen and a motion to reconsider. The petitioner, Oscar Rene Rosa Arevalo, a Guatemalan national, was removed in 2004 based on an Illinois controlled-substance conviction. Nearly two decades later, after Illinois enacted a statute allowing vacatur of convictions with potential immigration consequences, an Illinois court vacated his possession conviction for “procedural and substantive deficiencies.” Relying on that vacatur, he sought to reopen his removal proceedings in early 2024.

The central legal issue concerned equitable tolling of the 90-day deadline for motions to reopen under 8 U.S.C. § 1229a(c)(7)(C)(i). Specifically, the court addressed whether the petitioner demonstrated the requisite “due diligence” to toll the deadline in light of a post-conviction vacatur obtained under Illinois law, 735 Ill. Comp. Stat. 5/2-1401(c-5). The Fifth Circuit held that the BIA did not abuse its discretion in finding that the petitioner failed to show due diligence and therefore was not entitled to equitable tolling. The court likewise upheld the BIA’s denial of reconsideration.

Summary of the Opinion

Applying a “highly deferential” abuse-of-discretion standard, the Fifth Circuit affirmed the BIA’s determinations that:

• The motion to reopen—filed approximately 19 years after the final order of removal—was untimely under § 1229a(c)(7)(C)(i), and equitable tolling did not apply because the petitioner failed to demonstrate due diligence.
• Even measuring diligence from the 2021 effective date of the Illinois vacatur statute, the petitioner failed to show what steps he took for nearly two years to pursue relief, and he provided only generalized statements about when he learned of the law “in 2023.”
• An unexplained delay of up to eight months between learning of the vacatur pathway and filing the state petition undermined any claim of diligence, particularly where the petitioner did not supply specific dates or documentary proof.
• Because the petitioner did not establish diligence, the court did not reach whether “extraordinary circumstances” existed to justify tolling.
• The BIA’s separate denial of reconsideration was likewise within its discretion for the same reasons.

The court emphasized the importance of a detailed chronology and concrete proof of efforts taken, including the specific date on which the petitioner learned of the legal development that purportedly enabled his claim.

Analysis

Precedents Cited and Their Influence

• Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016):
  The court relied on Lugo-Resendez for the core two-part equitable tolling test applicable to motions to reopen: (1) the movant must have pursued rights with “reasonable diligence,” and (2) an “extraordinary circumstance” must have prevented timely filing. Lugo-Resendez clarifies that “reasonable,” not “maximum feasible,” diligence is required and that the circumstance must be beyond the petitioner’s control. This case supplied the governing legal framework.
• Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014):
  Cited for the “highly deferential abuse-of-discretion” standard, under which the court asks whether the BIA acted in a manner that was “capricious, irrational, utterly without foundation in the evidence,” or based on legal error or unexplained departures from policy. This set the lens through which the Fifth Circuit reviewed the BIA’s rulings.
• Lowe v. Sessions, 872 F.3d 713 (5th Cir. 2017):
  Established that denials of motions to reconsider are reviewed under the same abuse-of-discretion standard, informing the court’s parallel affirmance of the BIA’s reconsideration denial.
• Gonzalez-Cantu v. Sessions, 866 F.3d 302 (5th Cir. 2017):
  Central to the diligence analysis. The Fifth Circuit underscored that the date on which the petitioner learned of the relevant change in law is “a question of crucial importance” when assessing timeliness and diligence. Conclusory assertions—e.g., that one learned “recently” or “in 2023”—are insufficient. Here, the petitioner’s failure to specify when he learned about the Illinois statute undermined his tolling claim.
• Michael v. Barr, 830 F. App’x 732 (5th Cir. 2020):
  The court referenced Michael to support the proposition that months-long gaps—there, an 11-month delay between attorney consultations—can defeat diligence when unexplained. Analogously, the petitioner’s up-to-eight-month delay in initiating state vacatur proceedings weighed against diligence.
• Nyabwari v. Garland, No. 21-60479, 2022 WL 7409252 (5th Cir. Oct. 13, 2022):
  The Fifth Circuit stressed that petitioners must show diligence not only after a triggering event (e.g., vacatur) but also before discovering the issue. Even diligent action post-vacatur does not cure years of pre-vacatur inaction where no steps are documented.
• Mejia v. Barr, 952 F.3d 255 (5th Cir. 2020):
  By approving the BIA’s conclusion that a seven-year unexplained delay reflected lack of diligence, Mejia buttressed the court’s view that long, unaccounted-for lapses are fatal to tolling.
• INS v. Bagamasbad, 429 U.S. 24 (1976):
  The court invoked Bagamasbad to justify ending its analysis at diligence. Once diligence failed, the panel did not need to reach the “extraordinary circumstances” prong.
• Plata-Herrera, 2019 WL 3776104 (BIA Apr. 30, 2019) (unpublished BIA decision):
  Although the petitioner invoked Plata-Herrera to argue diligence, the panel distinguished it. Plata-Herrera involved “prompt” action upon learning of a defect; by contrast, Arevalo waited up to eight months and offered no specific chronology, rendering the analogy inapposite and, in any event, nonbinding.

Legal Reasoning

The court’s reasoning followed a clear sequence grounded in the statutory filing deadline and the equitable tolling framework:

1. Statutory deadline and posture:
   A motion to reopen must be filed within 90 days of the final administrative order. Arevalo filed roughly 19 years late. Thus, success depended on equitable tolling.
2. Equitable tolling standard:
   Under Lugo-Resendez, the movant bears the burden to show both (a) reasonable diligence and (b) an extraordinary circumstance that prevented timely filing. The panel focused on diligence and concluded it was lacking, making it unnecessary to reach extraordinary circumstances.
3. Measuring diligence in this case:
   The petitioner proposed starting the diligence clock in 2021, when Illinois enacted a statute enabling vacatur of convictions that carry “potential consequences under federal immigration law.” Even on that favorable assumption, the court found:
   • No evidence of any steps taken for nearly two years after the statute took effect.
   • Only vague claims that he learned of the path “[i]n 2023,” without a date—a deficiency Gonzalez-Cantu flags as fatal.
   • An unexplained delay of up to eight months between learning of the law and filing the state vacatur petition in August 2023, comparable to other delays previously deemed inconsistent with diligence (e.g., Michael).
   The court also rejected starting the diligence analysis only at the December 2023 vacatur date, citing Nyabwari: a petitioner must show diligence before discovery of the issue, not merely after.
4. Deferential review of the BIA’s conclusions:
   Given the lack of specifics and documented efforts, and in light of precedent deeming similar or shorter unexplained gaps inconsistent with diligence, the BIA’s refusal to toll the deadline was neither capricious nor irrational. Therefore, there was no abuse of discretion.
5. Motion to reconsider:
   Because the reconsideration arguments mirrored those raised against the reopening denial, and because the diligence defect persisted, the BIA’s denial of reconsideration likewise fell within its discretion.

Impact and Practical Implications

This decision materially clarifies how the Fifth Circuit expects petitioners to prove “reasonable diligence” when relying on post-conviction vacaturs to reopen long-final removal orders:

• Specificity is essential. General statements such as “I learned of the change in 2023” will not suffice. Petitioners must identify the exact date they learned of the legal development and document efforts to act thereafter.
• Short but unexplained gaps can doom diligence. Even a delay of up to eight months from discovery to filing a state-court petition can support a diligence denial if not justified with evidence and context.
• Pre-discovery diligence matters. Petitioners must demonstrate efforts taken before they learned of the triggering development (e.g., seeking legal advice, monitoring changes in the law, or attempting to remedy their convictions). Post-vacatur speed alone will not rehabilitate a years-long period of inaction.
• Post-conviction vacatur is not a tolling shortcut. Even when a vacatur appears to address “procedural and substantive deficiencies” (and therefore could eliminate the conviction for immigration purposes), reopening still depends on meeting the equitable tolling standard.
• Heightened practitioner responsibilities. Counsel should build a detailed record of diligence: dates of consultations, FOIA requests, efforts to obtain records, legal research logs, community clinic visits, and affidavits explaining any delays (health issues, access barriers, language obstacles, incarceration, or lack of counsel).
• Fifth Circuit alignment. The decision fits with Fifth Circuit cases emphasizing precision and documentation in equitable tolling claims. It signals that the court will not infer diligence from sparse or conclusory assertions—especially after long periods of inactivity.

Complex Concepts Simplified

• Motion to reopen:
  A request to the immigration courts to revisit a final decision based on new facts or changed circumstances. Normally must be filed within 90 days of the final order.
• Motion to reconsider:
  Asks the same tribunal to re-examine its decision for legal or factual errors based on the same record; does not introduce new evidence.
• Equitable tolling:
  A discretionary doctrine that pauses or extends a filing deadline when, despite reasonable efforts, an external and extraordinary obstacle prevented timely filing. Requires both diligence and an extraordinary circumstance.
• Due diligence:
  Reasonable, consistent efforts to protect one’s rights. In this context, it includes promptly learning about legal changes, seeking counsel, and taking concrete steps without unjustified delays—and being able to prove it with dates and documentation.
• Extraordinary circumstance:
  An external obstacle beyond the petitioner’s control that actually prevented timely filing (for example, severe misconduct by counsel or circumstances that make filing impossible). The court did not reach this prong here because diligence failed.
• State-court vacatur:
  When a criminal conviction is set aside by a state court. If the vacatur rests on procedural or substantive defects in the underlying criminal process, it can eliminate the conviction’s immigration consequences. If it is purely for immigration hardship without addressing a legal defect, federal immigration law may disregard it. In this case, the Illinois court vacated for “procedural and substantive deficiencies,” but the federal court did not need to decide the vacatur’s immigration effect because the motion was time-barred absent tolling.
• Abuse of discretion:
  A deferential appellate standard under which the court will disturb the BIA’s decision only if it is capricious, irrational, lacks an evidentiary foundation, rests on legal error, or departs from established policy without explanation.

Key Timeline (At a Glance)

• 1990s–2004: Petitioner convicted in Illinois of possession of a controlled substance; charged as inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II). Removed in 2004.
• 2021: Illinois enacts 735 ILCS 5/2-1401(c-5) enabling vacatur where convictions have potential federal immigration consequences.
• August 23, 2023: Petitioner files state petition to vacate the possession conviction.
• December 15, 2023: Illinois court vacates conviction for “procedural and substantive deficiencies.”
• January 17, 2024: Petitioner moves to reopen before the BIA; later moves to reconsider after denial.
• November 5, 2025: Fifth Circuit denies petitions for review of the BIA’s orders.

Practice Takeaways

• Document everything. Provide exact dates for learning of legal developments, consultation records, filing timelines, and reasons for any delay.
• Act quickly at each step. Even a months-long gap can be fatal without persuasive, supported explanations tied to external obstacles.
• Show pre-trigger efforts. Demonstrate efforts to monitor the law or to address the conviction long before the vacatur, especially after a long removal history.
• Match the vacatur to federal standards. If relying on a vacatur, ensure the record shows it was based on procedural or substantive defects—not merely to alleviate immigration consequences—and attach the order and supporting findings.
• Preserve parallel avenues. If reconsideration is pursued, identify a discrete legal or factual error rather than rearguing diligence in conclusory terms.

Conclusion

Rosa Arevalo v. Bondi reinforces that equitable tolling of the 90-day motion-to-reopen deadline demands a precise, evidence-backed showing of diligence—both before and after the petitioner discovers a potential pathway to relief, such as a new state vacatur statute. The Fifth Circuit’s decision underscores that generalized assertions and unexplained months-long gaps can justify the BIA’s refusal to toll, even where a state court has vacated the underlying conviction for substantive and procedural defects.

For noncitizens seeking to reopen long-final removal orders in the Fifth Circuit, the opinion functions as a practical roadmap: supply a specific chronology; substantiate each step with documentation; explain delays with credible, external reasons; and do not assume that a post-conviction vacatur alone will reset the clock. The ruling, while applying established doctrine, meaningfully clarifies the rigor with which diligence will be assessed and will shape how future equitable tolling claims are prepared and litigated in the immigration context.