Equitable Tolling for Motions to Reopen: Change-in-Law Alone Does Not Excuse Multi-Year Delay, and BIA’s Sua Sponte Refusal Is Unreviewable

1. Introduction

Ben Georges Rayes v. Pamela Bondi is a Sixth Circuit petition for review arising from the Board of Immigration Appeals’ denial of Rayes’s third motion to reopen removal proceedings. Rayes, a native of Iraq, entered the United States as a refugee (1979), became a lawful permanent resident (1981), and naturalized (2010). Years earlier (2006), he participated in an arson-for-insurance scheme; in 2013 he was convicted under 18 U.S.C. § 844(h)(1) and sentenced to five years. In 2015, his citizenship was revoked in connection with a plea agreement.

Immigration proceedings followed. An immigration judge found him removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). Rayes sought Convention Against Torture protection, alleging risk from ISIS as a Chaldean Christian, but the Board denied relief in 2016. He filed two late motions to reopen (2017 and 2018), both denied; he did not seek judicial review. He was removed to Iraq in 2019.

In 2024, Rayes filed a third motion to reopen, arguing (in essence) that a conviction incurred while he was a naturalized citizen should not later support removability after denaturalization. The Board denied the motion as time- and number-barred and declined equitable tolling. The central issue in the Sixth Circuit was narrow: whether the Board abused its discretion in rejecting equitable tolling for an extremely late, third motion to reopen premised on alleged changes in law.

2. Summary of the Opinion

The Sixth Circuit denied the petition for review. It held that the Board did not abuse its discretion in refusing to equitably toll the 90-day deadline (and the one-motion limit) for a third motion to reopen filed roughly eight years after the Board’s final removal decision. The court emphasized: (1) the strong interest in finality; (2) equitable tolling’s demanding requirements—due diligence plus extraordinary circumstances; (3) a change in decisional law, standing alone, rarely qualifies as an extraordinary circumstance; and (4) Rayes’s delay—measured in years—was inconsistent with diligence, especially where key authorities were long available. The court also held it lacked jurisdiction to review the Board’s refusal to reopen sua sponte.

3. Analysis

A. Precedents Cited

  • Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745 (6th Cir. 2011)
    Used to frame equitable tolling as “frequently requested but infrequently granted,” placing a heavy burden on the movant. It supports the court’s skeptical posture toward tolling absent compelling facts.
  • Holland v. Florida, 560 U.S. 631 (2010)
    Supplies the canonical two-part equitable-tolling test: (1) due diligence, and (2) extraordinary circumstances preventing timely filing. The Sixth Circuit imports this framework into the motion-to-reopen context as the governing standard.
  • Barry v. Mukasey, 524 F.3d 721 (6th Cir. 2008)
    Reinforces that diligence is strictly enforced in immigration tolling cases; even relatively short delays can defeat tolling. The court cites Barry to underscore that Rayes’s multi-year delays are far beyond what the circuit tolerates.
  • GenCorp, Inc. v. Olin Corp., 477 F.3d 368 (6th Cir. 2007)
    Central to the opinion’s treatment of “change in law” arguments. GenCorp states intervening developments “rarely” qualify as extraordinary circumstances and, if they do, typically require “some other special circumstance.” It also introduces the idea that an extraordinary change is more plausibly “a reversal of established adverse precedent.” The court uses GenCorp to reject Rayes’s premise that later-cited decisions justify reopening years after the deadline.
  • Njai v. Garland, 2022 WL 2903443 (6th Cir. July 22, 2022)
    Applied as a recent Sixth Circuit example where equitable tolling was denied for failure to show diligence, even when a legal-development narrative was offered. It supports the court’s refusal to relax diligence requirements.
  • Camaj v. Holder, 625 F.3d 988 (6th Cir. 2010)
    Provides the standard of review: denial of equitable tolling is reviewed for abuse of discretion. This deferential standard matters: the court’s role is not to decide tolling anew, but to assess whether the Board’s refusal was unreasonable.
  • INS v. Abudu, 485 U.S. 94 (1988)
    Supplies the finality rationale: a “strong public interest in bringing litigation to a close.” The court uses Abudu to justify strict enforcement of reopening limits and to resist perpetual relitigation through serial motions.
  • Holder v. Martinez Gutierrez, 566 U.S. 583 (2012)
    Cited in the discussion emphasizing finality and the significance of being outside the country. Although not the primary doctrinal basis, it supports the court’s emphasis that a removal order must become final, and that post-removal reopening is especially weighty.
  • Hernandez v. Bondi, 2025 WL 943710 (6th Cir. Mar. 28, 2025)
    A directly analogous Sixth Circuit denial of equitable tolling where the petitioner relied on intervening precedent but failed to demonstrate diligence. The court uses Hernandez to show consistency: even if a change could be “exceptional,” diligence is independently required.
  • Costello v. INS. 376 U.S. 120 (1964)
    The key substantive authority Rayes invoked: Costello construed removal language (“[a]ny alien” “is convicted”) not to reach a person who was a citizen at the time of conviction, relying on statutory tense, lack of date limitation, and lenity. The Sixth Circuit does not decide whether Costello would ultimately help Rayes; instead, it uses Costello to defeat tolling: Costello is “longstanding,” existed decades before Rayes’s proceedings, and Rayes had already invoked it previously—so it cannot explain an eight-year delay.
  • Singh v. Attorney General, 12 F.4th 262 (3d Cir. 2021); Okpala v. Whitaker, 908 F.3d 965 (5th Cir. 2018); Hylton v. Attorney General, 992 F.3d 1154 (11th Cir. 2021)
    These out-of-circuit decisions were offered as supportive “new law.” The Sixth Circuit highlights two limitations: (1) uncertainty that out-of-circuit precedent can justify tolling before the Board in the first place; and (2) even counting them, Rayes waited years after these cases issued, undermining diligence.
  • Slyusar v. Barr, 787 F. App'x 309 (6th Cir. 2019)
    Reinforces that multi-year delay is fatal to diligence for tolling. The court uses it to show Rayes’s delay is within a category the Sixth Circuit has repeatedly found disqualifying.
  • Castillo v. Bondi in the Sixth Circuit at the time of his motion. 140 F.4th 777 (6th Cir. 2025)
    Rayes pointed to Sixth Circuit activity in this area. The court rejects this as an “extraordinary circumstance” under GenCorp because tolling-worthy change must resemble a “reversal of established adverse precedent,” and the Sixth Circuit had not previously resolved the precise question—so there was no reversal to excuse delay.
  • Matter of Gonzalez-Muro, 24 I. & N. Dec. 472 (B.I.A. 2008) (per curiam)
    Rayes argued this Board precedent foreclosed his argument, justifying delay. The court disagrees for tolling purposes: Gonzalez-Muro does not bind the Sixth Circuit, and Rayes did not timely petition for review of the final removal order to test that precedent. This undercuts any claim that the law “prevented” timely pursuit of the argument.
  • Williams v. Garland, 59 F.4th 620 (4th Cir. 2023)
    Rayes invoked Williams as a pro-tolling comparator. The court distinguishes it: Williams moved to reopen about a year after the change in law and justified the delay by lack of internet access; Rayes delayed at least three years and showed some internet access. Williams thus becomes a diligence benchmark Rayes fails to meet.
  • Guzman-Torralva v. Bondi, 154 F.4th 880 (6th Cir. 2025); Herrera v. Bondi, 162 F.4th 617 (6th Cir. 2025)
    These cases support the jurisdictional holding: the Board’s refusal to exercise its sua sponte reopening authority under 8 C.F.R. § 1003.2(a) is “not subject to judicial review” because it is committed to “unfettered discretion.” They foreclose Rayes’s attempt to repackage tolling arguments as a challenge to discretionary sua sponte reopening.

B. Legal Reasoning

  1. Statutory and regulatory constraints control unless a narrow exception applies.
    The Board applied the basic limits: a noncitizen may file only one motion to reopen and must do so within 90 days of the final removal order (as cited in the opinion: 28 U.S.C. § 1229a(c)(7)(A), (C)(i) and 8 C.F.R. § 1003.2(c)(2)). Rayes’s third motion (2024) came years after the 2016 final order and after two prior reopening motions, making it both time-barred and number-barred unless equitable tolling applied.
  2. Equitable tolling is available only with diligence and extraordinary circumstances.
    Applying Holland v. Florida and Sixth Circuit analogs, the court treats diligence and extraordinary circumstances as independent requirements. Even if a petitioner identifies a potentially helpful legal development, delay can still defeat tolling on diligence grounds alone.
  3. Finality concerns intensify the showing required—especially after removal.
    Citing INS v. Abudu, the court emphasizes that reopening limits exist to prevent perpetual litigation and to ensure removal orders become final. Rayes’s request—permission to file a third reopening motion nearly eight years late—collides with that structural interest.
  4. “Change in law” is not enough here because the core argument was available long before.
    The opinion’s critical move is to recharacterize Rayes’s “new law” pitch as non-new: Costello v. INS. 376 U.S. 120 (1964) supplied the interpretive foundation decades earlier; Rayes even used Costello in his second motion to reopen. That factual record makes it difficult to claim that extraordinary circumstances “prevented” timely filing.
  5. Out-of-circuit cases do not establish diligence when the petitioner waits years.
    Even assuming Okpala v. Whitaker, Hylton v. Attorney General, and Singh v. Attorney General could matter, Rayes filed years after they issued. The court uses Barry v. Mukasey, Hernandez v. Bondi, and Slyusar v. Barr to anchor a strict diligence baseline that multi-year gaps fail.
  6. No “reversal of established adverse precedent,” so no extraordinary circumstance under GenCorp’s framing.
    Rayes’s reliance on Castillo v. Bondi in the Sixth Circuit at the time of his motion. 140 F.4th 777 (6th Cir. 2025) fails because the Sixth Circuit had not previously adopted an adverse rule on the exact question, meaning there was no reversal that suddenly made a previously futile claim viable. The court thereby ties “extraordinary” change to a more specific scenario than mere emergence of supportive authority.
  7. The Board’s refusal to reopen sua sponte is unreviewable.
    Invoking Guzman-Torralva v. Bondi and Herrera v. Bondi, the court holds it cannot review the Board’s decision not to act sua sponte under 8 C.F.R. § 1003.2(a), because that choice is committed to agency discretion.

C. Impact

  • Procedural gatekeeping over substantive merits.
    The decision underscores that potentially weighty substantive arguments (here, removability after denaturalization for convictions incurred while a citizen) may never be reached if reopening limits are not satisfied. Litigants must raise such arguments promptly—on direct review of the removal order or in a timely first motion to reopen—rather than through serial, late motions.
  • High bar for “change in law” tolling in the Sixth Circuit.
    While the court does not categorically rule out change-in-law tolling, it signals that such claims will fail without a prompt filing after the change and without circumstances beyond “an applicable change in decisional law,” consistent with GenCorp, Inc. v. Olin Corp.
  • Limited reliance on out-of-circuit authority for tolling.
    The opinion casts doubt on whether out-of-circuit decisions can, by themselves, supply the extraordinary circumstance for equitable tolling before the Board—particularly where delay is substantial.
  • Reinforced nonreviewability of sua sponte reopening denials.
    By reaffirming Herrera v. Bondi, the court tightens the jurisdictional boundary: petitioners cannot use petitions for review to force reconsideration of discretionary sua sponte reopening refusals.

4. Complex Concepts Simplified

  • Motion to reopen: A request to restart immigration proceedings after a final decision, typically to present new evidence or changed circumstances. It is not an appeal; it is a limited, rule-bound do-over mechanism.
  • Time bar (90 days) and number bar (one motion): Congress and the agency impose strict limits to prevent endless litigation. Missing the 90-day window or filing more than one motion usually ends the matter unless an exception applies.
  • Equitable tolling: A doctrine that can pause a filing deadline in rare situations. The petitioner must show (1) diligent pursuit of rights and (2) an extraordinary obstacle that prevented timely filing.
  • Due diligence: Acting with reasonable speed and persistence. Courts often measure diligence by how quickly the person acted once the supposed obstacle or new information appeared.
  • Extraordinary circumstances: Something beyond ordinary litigation difficulty—typically external barriers or severe impediments. The Sixth Circuit reiterates that a “change in decisional law” usually is not enough without more.
  • Sua sponte reopening: The Board’s discretionary power to reopen a case on its own initiative under 8 C.F.R. § 1003.2(a). In the Sixth Circuit, courts generally cannot review the Board’s refusal to use this power.

5. Conclusion

The Sixth Circuit’s decision in Ben Georges Rayes v. Pamela Bondi is a procedural finality opinion with clear operational lessons. It reaffirms that equitable tolling for motions to reopen demands both diligence and extraordinary circumstances, and that multi-year delay—especially where foundational authority like Costello v. INS. 376 U.S. 120 (1964) was long available—will defeat tolling. It also reinforces that the Board’s refusal to reopen sua sponte is not judicially reviewable in this circuit. The broader significance is straightforward: in the Sixth Circuit, reopening doctrine will be enforced as a strict gatekeeper, and litigants must act quickly when legal theories or supportive decisions emerge.