Equitable Tolling for Motions to Reopen Requires Explained, Continuous Diligence—FOIA Timing and “I Didn’t Know” Are Not Enough

1. Introduction

In Jhonny Castiblanco-Manrique v. U.S. Attorney General (11th Cir. Aug. 19, 2026) (per curiam) (not for publication), the Eleventh Circuit denied a petition for review challenging the Board of Immigration Appeals’ (“BIA”) refusal to reopen removal proceedings. The petitioners—Jhonny Xavier Castiblanco-Manrique, his wife Martha Helena Ramirez-Ramos, and their daughter—are Colombian nationals who entered the United States without inspection in November 2021 and were charged as removable under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)(i)(I).

After counsel withdrew (with petitioners stating the withdrawal was a “mutual decision”), the Immigration Judge (“IJ”) denied relief at a March 28, 2023 merits hearing. The petitioners’ appeal to the BIA was dismissed as untimely—filed one day late. Nearly two years after the removal order, petitioners moved to reopen, arguing ineffective assistance of prior counsel and seeking equitable tolling, asserting they discovered the problem only after consulting new counsel and receiving FOIA materials.

The central issues were whether petitioners satisfied the requirements for equitable tolling of the 90-day motion-to-reopen deadline—namely diligence and an extraordinary circumstance—and whether the BIA abused its discretion in concluding they did not.

2. Summary of the Opinion

The Eleventh Circuit held the BIA did not abuse its discretion in denying reopening as untimely because petitioners failed to establish equitable tolling. The court agreed with the BIA that petitioners did not demonstrate:

  • Reasonable diligence, given unexplained delays (about 10 months before hiring new counsel and an additional four months after receiving FOIA materials before filing); and
  • An extraordinary circumstance that prevented timely filing, because they did not show prior counsel caused the late BIA appeal or the later delay, especially where counsel withdrew before the merits hearing with petitioners’ agreement and the IJ gave clear appeal-deadline notice.

Because equitable tolling was not established, the court declined to reach the merits of the ineffective assistance claim, citing circuit precedent requiring equitable tolling as a threshold showing. The court also declined to consider arguments about Matter of Lozada compliance because the BIA did not rely on that ground.

3. Analysis

A. Precedents Cited

Standards of Review and Reasoned Decisionmaking

  • Hamilton v. U.S. Att’y Gen., 138 F.4th 1312 (11th Cir. 2025): Supplied the framework for reviewing the BIA’s denial of a motion to reopen—abuse of discretion for the ultimate ruling, and de novo review for underlying legal conclusions and whether the agency provided reasoned consideration. This mattered because petitioners effectively challenged whether the BIA properly applied equitable tolling standards.
  • Ferreira v. U.S. Att’y Gen., 714 F.3d 1240 (11th Cir. 2013) (quoting Garcia-Mir v. Smith, 766 F.2d 1478 (11th Cir. 1985)): Reinforced that discretionary denials are upheld unless “arbitrary or capricious.” The panel used this lens to confirm the BIA’s focus on unexplained delays was a rational, record-supported basis to deny tolling.
  • Laguna Rivera v. U.S. Att’y Gen., 130 F.4th 915 (11th Cir. 2025) (quoting Hasan-Nayem v. U.S. Att’y Gen., 55 F.4th 831 (11th Cir. 2022)): Provided the allocation rule for review when the BIA affirms or relies on an IJ’s reasoning. The panel applied it to treat the BIA’s diligence/extraordinary-circumstance reasoning as the operative rationale, while also acknowledging the IJ’s timeliness findings.

Equitable Tolling: Availability and Elements

  • Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc): Established that the 90-day reopening deadline is a “non-jurisdictional claim-processing rule subject to equitable tolling.” This is the gateway precedent permitting tolling in principle, but it also sets the two-part test the petitioners failed to satisfy.
  • Pace v. DiGuglielmo, 544 U.S. 408 (2005): Supplied the classic equitable tolling test—(1) diligence and (2) extraordinary circumstances. The panel used this as the doctrinal anchor for evaluating petitioners’ FOIA-based “late discovery” and their inactivity periods.
  • Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847 (11th Cir. 2013): Did two key jobs. First, it recognized ineffective assistance may support tolling in appropriate cases. Second—and crucial here—it required that a petitioner first establish equitable tolling before the ineffective assistance claim can be considered on the merits. This allowed the court to end the analysis once diligence and extraordinary circumstances were not shown.
  • Hunter v. Ferrell, 587 F.3d 1304 (11th Cir. 2009): Emphasized tolling is “an extraordinary remedy” applied “sparingly.” The panel used this framing to underscore that routine or unexplained delay will not qualify.
  • Holland v. Florida, 560 U.S. 631 (2010): Provided two complementary principles: diligence is “reasonable diligence, not maximum feasible diligence,” and a comparative example where diligence was found because the petitioner repeatedly pursued information and acted immediately upon learning of counsel’s error. The panel contrasted Holland’s active pursuit with petitioners’ 10-month and 4-month unexplained gaps.
  • United States v. Watkins, 880 F.3d 1221 (11th Cir. 2018): Supported the BIA’s insistence that petitioners must explain why they “waited as long as [they] did,” particularly after the means to file became available. The panel treated petitioners’ explanation (“did not understand [they] could file”) as insufficient to justify extended post-discovery inactivity.
  • Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999): Reinforced that extraordinary circumstances must be beyond the petitioner’s control and unavoidable even with diligence. The panel used this to reject an extraordinary-circumstance theory untethered to causation—i.e., where petitioners did not show counsel’s conduct actually prevented timely filing.
  • Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002): Offered a diligence-plus-obstacle illustration: tolling granted where the petitioner diligently sought information but was thwarted by the court’s failure to notify. The panel invoked Knight to emphasize that equitable tolling is strongest where the petitioner acts persistently yet is blocked by an external barrier—unlike the unexplained inactivity here.

Out-of-Circuit Authority Offered by Petitioners

  • Mejia-Hernandez v. Holder, 633 F.3d 818 (9th Cir. 2011) and Albillo-De Leon v. Gonzales, 410 F.3d 1090 (9th Cir. 2005): Petitioners relied on these to argue they could not discover ineffective assistance without FOIA materials. The Eleventh Circuit distinguished them as nonbinding and factually different—those cases involved counsel’s fraud or deception preventing discovery, whereas petitioners here did not allege concealment or deception by former counsel. The panel treated the FOIA argument as inadequate, especially given the separate problem of unexplained delays even after their proposed “discovery” date.

Procedural Requirements for Ineffective Assistance Claims

  • Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988): Typically governs how ineffective assistance claims must be presented to the agency (e.g., affidavit, notice to counsel, bar complaint or explanation). The panel did not reach Lozada compliance because “the BIA did not rely on that ground” in denying reopening, illustrating a recurring administrative law principle: judicial review tracks the agency’s stated rationale.

B. Legal Reasoning

The court’s reasoning proceeded in a disciplined sequence consistent with its cited precedents:

  1. Timeliness baseline: A motion to reopen must be filed within 90 days of the final administrative removal order under 8 U.S.C. §§ 1229a(c)(7)(A), (c)(7)(C)(i). Petitioners’ motion—filed 732 days after the removal order—was untimely unless equitably tolled.
  2. Equitable tolling as the threshold gate: Under Avila-Santoyo and Pace, petitioners had to show both (a) diligent pursuit and (b) an extraordinary circumstance preventing timely filing.
  3. Diligence failure due to unexplained gaps: Even accepting petitioners’ “discovery” theory tied to September 2024 FOIA materials, the BIA (and the court) emphasized two missing explanations:
    • Why petitioners waited about 10 months after the BIA’s dismissal (September 2023) to retain new counsel (July 2024).
    • Why they waited an additional four months after receiving FOIA materials (September 2024) to file (January 2025).
    Under Watkins, these omissions are fatal because equitable tolling demands a concrete account of delay periods, not generalized claims of confusion.
  4. No extraordinary circumstance shown (lack of causation): The court accepted the general proposition that ineffective assistance can qualify (Ruiz-Turcios), but found petitioners did not connect counsel’s conduct to the late filing problems:
    • Former counsel withdrew before the merits hearing, and petitioners agreed to the withdrawal.
    • The IJ provided oral and written notice that the BIA appeal deadline was April 27, 2023.
    • Petitioners filed the appeal on April 28, 2023 (one day late) without explaining how counsel caused that delay.
    Without evidence that counsel’s conduct “stood in [their] way” in the sense required by Pace and Sandvik, the extraordinary-circumstance prong failed.
  5. Merits of ineffective assistance not reached: Consistent with Ruiz-Turcios, the court refused to evaluate the underlying ineffective assistance claim because petitioners did not clear the tolling threshold.

C. Impact

Although unpublished, the decision reinforces several practical guideposts likely to shape how IJs, the BIA, and litigants approach equitable tolling in late-filed motions to reopen within the Eleventh Circuit:

  • FOIA is not a tolling “pause button”: Even if FOIA is relevant to discovering facts, petitioners must still account for what they did—and did not do—before and after receiving records. Unexplained inactivity can defeat diligence irrespective of when records arrive.
  • “I didn’t know I could file” is weak without specifics: The court treated ignorance of procedure, standing alone, as insufficient to justify lengthy delays, especially when the record shows notice of deadlines (e.g., the IJ’s appeal deadline advisal).
  • Causation matters for “extraordinary circumstance”: Alleging ineffective assistance is not enough; the movant must tie counsel’s conduct to the lateness at issue—here, the one-day late appeal and the much later motion-to-reopen filing.
  • Threshold structure narrows litigation: By reiterating that equitable tolling must be established before reaching ineffective assistance, the decision encourages litigants to front-load diligence evidence and delay explanations rather than litigating Lozada compliance or counsel errors in the abstract.

4. Complex Concepts Simplified

  • Motion to reopen: A request to restart immigration proceedings after a final order, typically to present new evidence or correct a serious error. By statute, it usually must be filed within 90 days of the final order.
  • Equitable tolling: A doctrine that can extend a filing deadline when (1) the person acted with reasonable diligence and (2) an extraordinary circumstance prevented timely filing. It is exceptional and must be justified with specific facts.
  • Non-jurisdictional claim-processing rule: A deadline that does not remove the court’s or agency’s power to act, but is still enforceable unless a valid doctrine—like equitable tolling—applies.
  • Reasonable diligence: Not perfection, but consistent, timely efforts. Courts often require an explanation for each meaningful gap in activity.
  • Extraordinary circumstance: An external barrier (often beyond the person’s control) that actually prevented timely filing. The person must show a causal link between the barrier and the late filing.
  • Ineffective assistance of counsel (immigration context): Serious attorney error that can sometimes justify reopening, but only if the petitioner first satisfies threshold requirements like equitable tolling when deadlines are missed.
  • FOIA materials: Records obtained from the government under the Freedom of Information Act. Useful to learn what happened in a case file, but not automatically a reason to excuse late filings.
  • Sua sponte reopening: The IJ’s or BIA’s discretionary power to reopen on its own initiative. Here, the review focused on equitable tolling; the denial stood without needing to expand on sua sponte standards.
  • Matter of Lozada: A BIA decision describing procedural steps for raising ineffective assistance claims. The court did not address it because the BIA did not deny reopening on Lozada grounds.

5. Conclusion

The Eleventh Circuit’s decision confirms a strict, fact-specific approach to equitable tolling for untimely motions to reopen: petitioners must provide a coherent timeline, explain significant gaps, and show that an extraordinary circumstance actually caused the late filing. Reliance on FOIA timing or generalized claims of ignorance does not substitute for demonstrated diligence, and allegations of ineffective assistance must be tied to the procedural default at issue. The ruling thus underscores equitable tolling’s role as an exceptional remedy—available in principle, but denied where delay is largely unexplained and causation is not shown.