Date: Jun 22, 2026

Equitable Tolling of the 90-Day Motion-to-Reopen Deadline Requires Explained, Continuous Reasonable Diligence—Later “Urgency” After a Removal Notice Is Too Late

I. Introduction

In Oscar Garcia-Islas v. U.S. Attorney General (11th Cir. June 17, 2026) (unpublished), the Eleventh Circuit denied a petition for review challenging the Board of Immigration Appeals’ (“BIA”) denial of a motion to reopen as untimely. The petitioner, Oscar Garcia-Islas, a Mexican national who entered without admission in 1996 and has three U.S.-citizen children, sought reopening years after the BIA dismissed his administrative appeal as untimely.

The central issue was equitable tolling: whether Garcia-Islas showed the “reasonable diligence” required to toll the 90-day statutory deadline for a motion to reopen when he waited roughly three-and-a-half years after learning his appeal was dismissed, claiming he relied on former counsel’s advice that “there was nothing that could be done.”

II. Summary of the Opinion

The court affirmed that the 90-day deadline for motions to reopen is non-jurisdictional and may be equitably tolled, but only in rare circumstances and with due diligence.
Even assuming counsel’s advice in January 2021 was deficient, Garcia-Islas failed to explain what steps he took from 2020/2021 to 2024 to pursue relief.
The Eleventh Circuit held the BIA did not err in finding a lack of due diligence and therefore properly denied reopening as untimely.
The court refused to consider “humanitarian reasons” for reopening because the BIA did not rely on that rationale; it also noted petitioner did not pursue review of the BIA’s 2020 dismissal and did not press sua sponte reopening on appeal.

III. Analysis

A. Precedents Cited

The panel’s reasoning is built from a set of immigration and general equitable-tolling authorities that define (1) the standard of review, (2) the nature of the 90-day reopening deadline, and (3) the diligence requirement.

1. Standard of review and scope of appellate review

Dacostagomez-Aguilar v. U.S. Att'y Gen., 40 F.4th 1312 (11th Cir. 2022): Supplies the basic framework—denial of reopening is reviewed for abuse of discretion, but “underlying legal conclusions” de novo. This anchors the court’s willingness to assess diligence as a legal prerequisite on undisputed facts.
Ferreira v. U.S. Att'y Gen., 714 F.3d 1240 (11th Cir. 2013): Explains when the BIA abuses discretion (misapplication of law or unexplained deviation from its precedents). The panel uses this to frame the question as whether the BIA misapplied equitable tolling/diligence.
Gonzalez v. U.S. Att'y. Gen., 820 F.3d 399 (11th Cir. 2016), abrogated in part on other grounds by Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): Reaffirms the “Chenery-like” limit: the court reviews only the grounds the BIA relied upon. This is dispositive for rejecting petitioner’s “humanitarian reasons” argument because the BIA did not deny reopening on that basis.
Seck v. U.S. Att'y Gen., 663 F.3d 1356 (11th Cir. 2011): Reinforces that the court reviews the BIA decision (unless the BIA adopts the IJ). Used to keep the focus on the BIA’s diligence ruling.
Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) and Beazer v. Richmond Cnty. Constructors, LLC, 169 F.4th 1082 (11th Cir. 2026): Cited to note that applying the equitable tolling standard to undisputed facts is generally a legal question (de novo), though the panel says the standard-of-review choice does not affect the outcome.

2. The reopening deadline and equitable tolling framework

Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc): The key immigration precedent establishing the 90-day reopening deadline is a “non-jurisdictional claim-processing rule subject to equitable tolling.” This is the gateway that makes petitioner’s tolling argument legally cognizable.
Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999): Defines equitable tolling as appropriate only where untimely filing results from extraordinary circumstances beyond the movant’s control and unavoidable even with diligence—explicitly linking tolling to diligence.
Holland v. Florida, 560 U.S. 631 (2010): Supplies the governing diligence metric—“reasonable diligence, not maximum feasible diligence.” The court invokes this to emphasize that the bar is not perfection, but the petitioner still must do something and explain delays.
United States v. Watkins, 880 F.3d 1221 (11th Cir. 2018): The opinion’s practical centerpiece: a tolling claimant generally must “explain why [he] waited” as long as he did. The panel uses this to fault the absence of any account of efforts between 2020 and 2024.
Hunter v. Ferrell, 587 F.3d 1304 (11th Cir. 2009) and Lawrence v. Florida, 421 F.3d 1221 (11th Cir. 2005), aff'd, 549 U.S. 327 (2007): Emphasize equitable tolling as “extraordinary,” “rare,” and “sparingly” applied—supporting a strict approach to long, unexplained inactivity.

3. Ineffective assistance as a tolling basis; procedural requirements

Ruiz-Turcios v. U.S. Att'y Gen., 717 F.3d 847 (11th Cir. 2013): Confirms ineffective assistance can underlie equitable tolling, while distinguishing that the movant must satisfy both ineffective assistance and equitable tolling (often with overlapping facts).
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), overruled in part by Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009), reinstated by Matter of Compean, 25 I. & N. Dec. 1 (A.G. 2009): The BIA acknowledged Garcia-Islas complied with the procedural requirements for raising ineffective assistance. Critically, the case turns not on Lozada compliance but on the independent failure to show due diligence for tolling.
Justice v. United States, 6 F.3d 1474 (11th Cir. 1993): Cited to underline that the burden of proving equitable tolling rests on the party asserting it—supporting denial where the record lacks an explanation.

4. Limits on revisiting earlier immigration “trips” and other remedial limits

Bing Quan Lin v. U.S. Att'y Gen., 881 F.3d 860 (11th Cir. 2018), overruled in part on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Invoked to note the court’s limited jurisdiction to revisit earlier stages of proceedings when not properly before it, reinforcing that Garcia-Islas did not petition for review of the BIA’s 2020 dismissal order.
Coney Island Auto Parts Unlimited, Inc. v. Burton, 607 U.S. 155 (2026): Cited for the broader principle that legal systems routinely impose time limits for seeking relief from erroneous judgments—supporting strict enforcement absent tolling.
INS v. Bagamasbad, 429 U.S. 24 (1976): Used to justify not reaching issues unnecessary to the outcome (here, “humanitarian reasons”/extraordinary circumstances arguments not needed once diligence failed).
Lapaix v. U.S. Att'y Gen., 605 F.3d 1138 (11th Cir. 2010): Supports treating unargued issues as abandoned; applied to petitioner’s failure to pursue the sua sponte reopening issue on appeal.
Butka v. U.S. Att'y Gen., 827 F.3d 1278 (11th Cir. 2016): Notes the Eleventh Circuit’s narrow jurisdiction over the BIA’s sua sponte reopening decisions—context for why that path is difficult even when preserved.

5. Statutory context (cited within the opinion)

INA § 240(c)(7)(C)(i); 8 U.S.C. § 1229a(c)(7)(C)(i): the 90-day deadline for motions to reopen.
INA § 240A(b); 8 U.S.C. § 1229b(b): cancellation of removal for certain nonpermanent residents, including the “exceptional and extremely unusual hardship” requirement. The panel cites Lopez-Martinez v. U.S. Att'y Gen., 149 F.4th 1202 (11th Cir. 2025) for the cancellation framework, though hardship merits were not reached.
INA § 212(a)(6)(A)(i); 8 U.S.C. § 1182(a)(6)(A)(i): removability for presence without admission or parole.

B. Legal Reasoning

The court’s logic is linear and rule-based:

Untimeliness is undisputed. The motion to reopen was filed in July 2024, years after the BIA’s final order in December 2020—well outside the 90 days.
Equitable tolling requires (at minimum) reasonable diligence. The panel accepted the doctrinal premise from Avila-Santoyo v. U.S. Att'y Gen. that tolling is available, and it applied the diligence definitions from Holland v. Florida, Sandvik v. United States, and the “explain why you waited” requirement of United States v. Watkins.
Awareness triggers the need to act. The record showed Garcia-Islas was on notice by December 31, 2020 that his administrative appeal had been dismissed as untimely. Even crediting the January 2021 attorney meeting, the court treated the years after that meeting as the relevant diligence window.
No explanation + no intervening steps = lack of reasonable diligence. The decisive factual gap was not whether counsel was ineffective, but what Garcia-Islas did between 2020/2021 and 2024. The court stressed he “did not seek any form of relief” and “did not (and does not) explain” why waiting years should count as “reasonable diligence.”
A later “urgent awareness” prompted by a removal notice does not retroactively establish diligence. The panel rejected the notion that diligence begins only when enforcement becomes imminent. In tolling terms, urgency is not a substitute for earlier reasonable efforts once the adverse order is known.
The BIA need not supply a “reasonable discovery date” when the movant fails to carry the burden. Addressing petitioner’s argument that the BIA should have found when a reasonable person would discover ineffectiveness, the court said that question is relevant, but the BIA “necessarily considered” it by concluding petitioner failed to show it was reasonable to wait so long—especially given Justice v. United States (burden on movant).
Issue selection is constrained to the BIA’s stated rationale. Under Gonzalez v. U.S. Att'y. Gen. and Seck v. U.S. Att'y Gen., the court did not reach “humanitarian reasons” because diligence failure alone supported denial and the BIA did not decide on that alternate ground; INS v. Bagamasbad supports not deciding unnecessary questions.

C. Impact

Although designated “NOT FOR PUBLICATION” (and thus not binding precedent), the decision is a clear signal of how the Eleventh Circuit is likely to evaluate diligence in future tolling claims:

Delay must be narrated. This opinion operationalizes Watkins: equitable tolling is unlikely where the movant cannot document efforts or explain inactivity over long intervals. Practically, litigants should compile a timeline of concrete steps (requests for records, consultations with other counsel, pro se filings, FOIA requests, complaints, or attempts to rectify counsel error).
Reliance on counsel’s pessimistic advice is not a “pause button.” Even if prior counsel said “nothing can be done,” the petitioner must still act reasonably—e.g., seek a second opinion or investigate available motions—within a reasonable time.
Imminent removal does not reset the clock. The court’s rejection of “urgent awareness” as a diligence trigger discourages last-minute reopening strategies premised solely on ICE reporting letters.
Framing matters on petition for review. The opinion underscores that appellate courts review the BIA’s stated reasons; arguments about merits (“hardship,” “humanitarian reasons”) may be irrelevant if the BIA rested on timeliness/diligence.
Procedural compliance (e.g., Matter of Lozada) is necessary but not sufficient. Even perfect ineffectiveness procedure will fail absent diligence for tolling.

IV. Complex Concepts Simplified

Motion to reopen: A request to restart immigration proceedings after a final order, usually to present new evidence or argue legal error. By statute, it generally must be filed within 90 days of the final order.
Equitable tolling: A doctrine that can excuse missing a deadline when extraordinary circumstances prevented timely filing and the person still acted with reasonable diligence. It is “extraordinary” and applied sparingly (Hunter v. Ferrell; Lawrence v. Florida).
Reasonable diligence (not maximum diligence): You do not have to do everything conceivable, but you must take sensible, timely steps and be able to explain gaps in activity (Holland v. Florida; United States v. Watkins).
Ineffective assistance of counsel in immigration: Poor lawyering can support reopening and equitable tolling, but the noncitizen must typically satisfy procedural requirements (often referred to as Lozada requirements) and also show diligence for tolling (Ruiz-Turcios v. U.S. Att'y Gen.).
Sua sponte reopening: The BIA’s discretionary power to reopen on its own initiative in exceptional circumstances. Appellate review is narrow (Butka v. U.S. Att'y Gen.), and issues not argued can be abandoned (Lapaix v. U.S. Att'y Gen.).

V. Conclusion

The Eleventh Circuit’s decision reinforces a practical, enforcement-oriented rule for equitable tolling of untimely motions to reopen: even where ineffective assistance is plausibly alleged and Matter of Lozada is satisfied, tolling fails if the movant cannot show and explain continuous “reasonable diligence” after learning of the adverse order. Waiting years without documented steps—then acting only after a removal notice—does not qualify. By confining review to the BIA’s stated rationale and declining to reach unnecessary issues, the court also highlights that timeliness and diligence often control before any humanitarian or merits-based considerations can be reached.