Equitable Tolling Demands Documented, Pre-Discovery Diligence—Vacated Conviction Alone Does Not Excuse a 19-Year Delay

Commentary on Rosa Arevalo v. Bondi (5th Cir. Nov. 5, 2025)

Introduction

In Rosa Arevalo v. Bondi, the United States Court of Appeals for the Fifth Circuit denied petitions for review challenging the Board of Immigration Appeals’ (BIA) denial of a motion to reopen and a motion to reconsider. The petitioner, a Guatemalan national, had been removed in 2004 following an Illinois controlled-substance conviction. Nearly two decades later, after Illinois enacted a 2021 statute enabling vacatur of convictions carrying immigration consequences (735 Ill. Comp. Stat. 5/2-1401(c-5)), the petitioner successfully vacated his Illinois conviction in December 2023 and sought to reopen his removal proceedings in January 2024.

The central legal issue was whether the 19-year delay in filing the motion to reopen could be excused by equitable tolling. The Fifth Circuit held that the BIA did not abuse its discretion in finding the motion untimely and in declining equitable tolling because the petitioner failed to demonstrate “due diligence,” particularly during the period before and after learning of the legal pathway to vacatur. The court also affirmed the denial of reconsideration for the same reasons.

This opinion reinforces within the Fifth Circuit a demanding evidentiary standard for equitable tolling in motions to reopen: petitioners must show specific, documented diligence before they discover the basis for reopening and act promptly thereafter. A later vacatur of a conviction—even one based on “procedural and substantive deficiencies”—does not reset the clock or obviate the need for continuous diligence.

Summary of the Opinion

• The BIA denied petitioner’s motion to reopen as untimely under 8 U.S.C. § 1229a(c)(7)(C)(i) (90-day deadline) and found equitable tolling unavailable due to lack of due diligence; the BIA also denied reconsideration.
• Applying a highly deferential abuse-of-discretion standard, the Fifth Circuit affirmed. It held that petitioner failed to prove diligence:
  • He offered no evidence of efforts to pursue his rights from 2004 until the Illinois statute’s enactment in 2021.
  • Even assuming diligence could be measured starting in 2021, there was no evidence of steps taken during the nearly two years before he filed for vacatur in August 2023.
  • He alleged only that he learned of the vacatur option “in 2023,” a generality the court deemed insufficient because the exact date of discovery is “of crucial importance” to diligence.
  • An up-to-eight-month lag between learning of the law and filing the vacatur petition supported the BIA’s finding of non-diligence.
• Because diligence failed, the court declined to reach whether “extraordinary circumstances” existed (INS v. Bagamasbad).
• The court also rejected the motion to reconsider, as it raised the same arguments.
• Result: Petitions for review denied.

Analysis

Precedents Cited and Their Influence

• Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016): Established that the 90-day deadline for motions to reopen is nonjurisdictional and subject to equitable tolling upon a two-prong showing: (1) due diligence, and (2) extraordinary circumstances. The Fifth Circuit also reiterated the “highly deferential abuse-of-discretion” standard for reviewing BIA denials of reopening, quoting Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014). In Rosa Arevalo, Lugo-Resendez provides the governing tolling framework and the deference lens; the opinion turns on the first prong (diligence), making it dispositive.
• Gonzalez-Cantu v. Sessions, 866 F.3d 302 (5th Cir. 2017): Emphasized that the date a petitioner learns of a change in law or defect is “of crucial importance” to timeliness and requires specifics. General allegations (e.g., “recently”) are insufficient. In Rosa Arevalo, the petitioner’s statement that he learned of relief “in 2023” fell afoul of Gonzalez-Cantu’s specificity requirement.
• Michael v. Barr, 830 F. App’x 732 (5th Cir. 2020): The court held that an eleven-month gap between consulting attorneys supported the BIA’s finding of a lack of diligence. Rosa Arevalo cites Michael to show that even months-long gaps can defeat diligence. Here, a potential eight-month delay from discovery to state filing supported the BIA’s non-diligence ruling.
• Nyabwari v. Garland, No. 21-60479, 2022 WL 7409252 (5th Cir. Oct. 13, 2022): Clarified that diligence must be shown prior to discovering the underlying issue; measuring diligence only from the date of vacatur or newly-discovered eligibility is insufficient. In Rosa Arevalo, this undercuts the petitioner’s argument to start the diligence clock at his December 2023 vacatur.
• Mejia v. Barr, 952 F.3d 255 (5th Cir. 2020): Endorsed the BIA’s conclusion that an unexplained, years-long delay (seven years) evidences a lack of diligence. Rosa Arevalo analogously lacked evidence of effort between 2004 and 2023.
• Lowe v. Sessions, 872 F.3d 713 (5th Cir. 2017): Applied the same abuse-of-discretion standard to motions for reconsideration. This supports affirmance of the BIA’s reconsideration denial on the same diligence grounds.
• INS v. Bagamasbad, 429 U.S. 24 (1976): Stands for the principle that courts need not reach issues unnecessary to the outcome. Because diligence failed, the Fifth Circuit did not decide the “extraordinary circumstances” prong.
• Plata-Herrera, 2019 WL 3776104 (BIA Apr. 30, 2019): The petitioner relied on this BIA decision where diligence was found after a respondent “promptly” acted upon learning of a defect. The Fifth Circuit distinguished it: even assuming relevance, waiting up to eight months to initiate state relief was not “prompt.”

Legal Reasoning

The court’s reasoning follows a structured path grounded in the equitable tolling doctrine and deference to the BIA’s discretionary judgments:

1. Baseline untimeliness: A motion to reopen must be filed within 90 days of the final removal order (8 U.S.C. § 1229a(c)(7)(C)(i)). Petitioner filed nearly 19 years after his 2004 removal order; thus, timeliness depended on equitable tolling.
2. Equitable tolling framework: Under Lugo-Resendez, petitioner must prove both (a) due diligence and (b) extraordinary circumstances. Due diligence means “reasonable diligence,” not maximal effort, but it must be real, consistent, and supported by evidence.
3. Diligence analysis—pre- and post-discovery:
   • Pre-2021: Petitioner offered no evidence of action from 2004 to 2021.
   • 2021–2023 (post-enactment of Illinois § 2-1401(c-5)): Even limiting the inquiry to this shorter window, petitioner provided no evidence of steps taken during nearly two years while the statute was in effect.
   • “Discovery” in 2023: Petitioner alleged he learned “in 2023” of his ability to challenge the conviction, but failed to state when. Gonzalez-Cantu requires a specific discovery date because it is “crucial” to assessing diligence.
   • Lag to state vacatur filing: The record allowed for up to an eight-month delay between learning of the law and filing the vacatur petition (Aug. 23, 2023). Citing Michael, the court accepted that months-long, unexplained gaps can support a finding of non-diligence.
   • Starting the clock at vacatur: The court rejected measuring diligence from the December 15, 2023 vacatur date. Nyabwari requires petitioners to show diligence before discovering the issue; later favorable developments (like vacatur) do not excuse prior inactivity.
4. No need to reach extraordinary circumstances: Because petitioner failed the diligence prong, Bagamasbad permitted the court to refrain from analyzing whether extraordinary circumstances existed.
5. Reconsideration: Applying the same abuse-of-discretion standard (Lowe), the court affirmed the BIA’s denial because the reconsideration request repeated arguments already rejected on diligence grounds.

Impact and Practical Implications

This opinion reinforces and sharpens the Fifth Circuit’s approach to equitable tolling in motions to reopen, especially in cases involving post-conviction relief under state statutes designed to mitigate immigration consequences:

• Documented diligence is indispensable. Petitioners must provide a concrete, date-specific chronology of efforts taken to pursue relief—both before they learn of a potential ground for reopening and immediately thereafter. Vague statements (“in 2023 I learned…”) are inadequate.
• Months matter. Even a lag of several months between discovery and action (e.g., filing a state vacatur petition) can support a finding of non-diligence, particularly when the overall delay spans years.
• Vacatur is not a timeliness cure-all. Even when a state court vacates a conviction based on “procedural and substantive deficiencies”—the kind of vacatur that can negate a conviction for immigration purposes—the motion to reopen still must meet the federal timeliness and diligence standards.
• Strategy for counsel in the Fifth Circuit:
  • Keep meticulous records of when the client learned of legal changes and each concrete step taken afterward (consultations, filings, correspondence).
  • File state post-conviction petitions promptly upon discovery and file the motion to reopen promptly upon obtaining relief, supplying a detailed timeline.
  • Where possible, explain delays with evidence (e.g., records requests, court backlogs, documented efforts to locate counsel), understanding that “reasonable diligence” is a fact-intensive inquiry but will not forgive long, unexplained gaps.
• Broader effects: This decision may curb successful reopening efforts premised on newer state vacatur statutes within the Fifth Circuit unless applicants can marshal strong diligence showings. It signals to the BIA that its diligence findings, when supported by record gaps and lack of specifics, will likely withstand abuse-of-discretion review.

Complex Concepts Simplified

• Motion to Reopen: A request to the immigration court or BIA to revisit a final removal decision based on new facts or evidence (e.g., a vacated conviction). Generally must be filed within 90 days of the final order unless an exception applies or equitable tolling is granted.
• Equitable Tolling: A doctrine that allows late filings if the person (1) acted with reasonable diligence in pursuing their rights, and (2) was prevented from timely filing by extraordinary circumstances beyond their control.
• Due Diligence: Concrete, consistent efforts to pursue one’s legal rights. In this context, it requires specific evidence of what the petitioner did and when, including before learning of new legal avenues and promptly thereafter.
• Extraordinary Circumstances: Serious obstacles beyond the petitioner’s control that prevent timely filing (e.g., profound legal confusion created by controlling precedent later overturned). Courts need not reach this question if diligence is not shown.
• Vacatur: A state court’s setting aside of a criminal conviction. For immigration purposes, vacaturs that rest on substantive or procedural defects can eliminate the immigration “conviction,” while those based solely on rehabilitative reasons generally do not. Regardless, equitable tolling must still be independently established for untimely motions to reopen.
• Abuse of Discretion: A deferential standard of review. A court will overturn the BIA’s decision only if it is capricious, irrational, lacks evidentiary support, misinterprets law, or departs from established policies without explanation.
• Controlled Substance Ground of Inadmissibility (8 U.S.C. § 1182(a)(2)(A)(i)(II)): A ground rendering a noncitizen inadmissible based on a controlled-substance-related conviction. Here, it was the sole ground the immigration judge relied on; a valid vacatur could have removed this ground if timeliness hurdles were cleared.
• Motion to Reconsider: Asks the BIA to reexamine its decision for legal or factual errors based on the existing record. It is not an opportunity to present new evidence; the same deferential standard of review applies.

Case-Specific Timeline (Key Events)

• 2004: Petitioner removed to Guatemala following an Illinois controlled-substance conviction; BIA dismisses his appeal.
• 2021: Illinois enacts 735 ILCS 5/2-1401(c-5), authorizing vacatur of convictions with immigration consequences.
• August 23, 2023: Petitioner files to vacate the conviction in Illinois state court.
• December 15, 2023: Illinois court vacates the conviction due to “procedural and substantive deficiencies.”
• January 17, 2024: Petitioner files motion to reopen with the BIA.
• 2024: BIA denies reopening (untimely; no equitable tolling) and denies reconsideration.
• November 5, 2025: Fifth Circuit denies petitions for review.

Additional Observations

• The court noted but did not rely on an alleged aggravated assault conviction as a separate ground of removability because the immigration judge did not base the removal order on that ground; therefore, its status was immaterial to the opening question of equitable tolling.
• The opinion underscores that precision in affidavits and briefing—identifying dates of discovery and enumerating concrete steps—is not mere formality; it is central to satisfying the diligence requirement.

Conclusion

Rosa Arevalo v. Bondi clarifies and reinforces a stringent due diligence requirement for equitable tolling in the Fifth Circuit: petitioners seeking to reopen long-final removal orders must provide specific, documented evidence of continuous efforts to pursue relief both before discovering new legal avenues and promptly thereafter. A later vacatur of a conviction—even one premised on procedural and substantive defects—does not, by itself, salvage an untimely motion to reopen.

Practically, the decision places a premium on detailed timelines, prompt action upon learning of new state remedies, and an evidentiary record free of long, unexplained gaps. For practitioners and noncitizens in the Fifth Circuit, the message is clear: equitable tolling is available, but only for those who can prove real, date-specific diligence. Because the petitioner failed to make that showing, the court—applying a highly deferential standard—found no abuse of discretion in the BIA’s denial of reopening and reconsideration and denied the petitions for review.