Equitable Tolling of Untimely Motions to Reopen Requires Fact-Specific Proof of Reasonable Diligence; No Remand for Alleged Sua Sponte Reopening Error Where Removability Is Certain After Intervening Precedent

1. Introduction

In Tho Duc Huynh v. Todd Blanche (4th Cir. June 9, 2026) (unpublished), the Fourth Circuit denied a petition for review challenging the Board of Immigration Appeals’ (BIA) refusal to reopen long-final removal proceedings. The petitioner, Tho Duc Huynh, had been ordered removed in 2004 based on a 1997 Virginia conviction under Virginia Code § 18.2-67.4, deemed both (i) an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii) and (ii) a “crime involving moral turpitude” (CIMT) under 8 U.S.C. § 1227(a)(2)(A)(i).

After remaining in the United States for roughly two decades—during which removal was not promptly effected—Huynh moved to reopen in 2025, asserting “two key changes in law” meant his conviction no longer rendered him removable: Sessions v. Dimaya (2018) and Belcher v. Commonwealth (Va. Ct. App. 2022). Because the motion was far outside the 90-day statutory deadline for motions to reopen (8 U.S.C. § 1229a(c)(7)(C)(i)), Huynh sought equitable tolling and, alternatively, requested that the BIA reopen sua sponte under 8 C.F.R. § 1003.2(a).

The central issues were: (1) whether equitable tolling excused the motion’s untimeliness (especially the “diligence” requirement), and (2) whether the court could or should disturb the BIA’s refusal to exercise sua sponte reopening authority—particularly in light of intervening Fourth Circuit precedent that eliminated the petitioner’s core merits theory.

2. Summary of the Opinion

  • Equitable tolling denied: Even assuming intervening decisional law can be an “extraordinary circumstance,” the court held Huynh failed to show he pursued his rights with the “reasonable diligence” required for equitable tolling.
  • Sua sponte reopening/remand denied as futile: The court declined to remand based on alleged legal error in the BIA’s sua sponte reopening analysis because, after Perdomo Ulloa v. Bondi (4th Cir. 2026), Huynh conceded he is removable under the CIMT ground regardless of the aggravated-felony issue—making remand an “idle and useless formality.”
  • Disposition: Petition for review denied.

3. Analysis

3.1 Precedents Cited

A. Jurisdiction to review denial of party-filed reopening motions

The court began with jurisdiction and clarified that it could review the BIA’s refusal to reopen on a party’s motion—even where the denial rests on untimeliness or rejection of equitable tolling—relying on Mata v. Lynch, 576 U.S. 143 (2015). Mata supplies a key doctrinal point: the “reason for the [BIA]’s denial” does not defeat jurisdiction over the denial of a motion to reopen.

The court also referenced the statutory consolidation mechanism in 8 U.S.C. § 1252(b)(6), reinforcing that review of motions to reopen is part of the “final order[s] of removal” review framework under 8 U.S.C. § 1252(a)(1).

B. Standard of review and equitable tolling framework

While reopening denials are “generally” reviewed for abuse of discretion, the Fourth Circuit emphasized—citing Romero v. Bondi, 150 F.4th 332 (4th Cir. 2025)—that the standard depends on the “discrete question.” Under Williams v. Garland, 59 F.4th 620 (4th Cir. 2023), denial of equitable tolling is treated as a mixed question reviewed de novo. This de novo posture mattered because the panel assessed diligence independently rather than deferring to the BIA.

For the substantive tolling test, the court relied on Lawrence v. Lynch, 826 F.3d 198 (4th Cir. 2016), which requires: (1) “extraordinary circumstances beyond [the movant’s] control” making timely filing impossible (absent government wrongful conduct), and (2) diligent pursuit of rights. It further emphasized the cautionary principle from Lawrence that equitable tolling must be “guarded and infrequent.” For the diligence standard, the court used Holland v. Florida, 560 U.S. 631 (2010): “reasonable diligence, not maximum feasible diligence.”

C. Measuring diligence and issue framing before the agency

A key move in the court’s analysis was procedural: it held the BIA was entitled to accept Huynh’s presentation of the legal changes as separate “fundamental change[s] in law” and to use Sessions v. Dimaya (2018) as a relevant diligence reference point, because Huynh did not tell the BIA that Belcher v. Commonwealth (2022) should be the sole “starting point.” The panel cited De Paredes v. Zen Nails Studio LLC, 134 F.4th 750 (4th Cir. 2025), for the proposition that a tribunal may “accept [a party’s] framing of the dispute before it.”

D. Distinguishing prior “diligence” cases

The petitioner argued Williams v. Garland controlled. The court disagreed and distinguished it on two main axes:

  • Length of delay: In Williams, the petitioner learned of the change “just one year” after the Supreme Court decision and filed “just one month later.” Here, even if measured from Belcher v. Commonwealth (2022), Huynh waited “nearly two-and-a-half years.” The court bolstered this point with Gordillo v. Holder, 640 F.3d 700 (6th Cir. 2011): “the longer” the delay, “the more explaining” is required.
  • Totality of circumstances: Williams involved extreme constraints (long-term presence in Jamaica, little income, no internet access, isolation). Huynh, by contrast, remained in the United States, operated a business, and had extensive community support—making his inability to pursue reopening harder to justify.

The petitioner’s reliance on Eskilian v. Bondi, 172 F.4th 682 (9th Cir. 2026), was rejected as distinguishable because it involved ineffective assistance (a different analysis per Williams), “stateless” status, and “unique circumstances” with a materially different timeline and documented steps taken toward relief.

E. Limited review (and unresolved scope) of sua sponte reopening denials

On sua sponte reopening, the court reiterated the general Fourth Circuit rule from Mosere v. Mukasey, 552 F.3d 397 (4th Cir. 2009): courts “lack jurisdiction” to review the BIA’s refusal to reopen sua sponte. It noted, as in Williams v. Garland (citing Lawrence v. Lynch), that the Fourth Circuit has “expressly left open” whether review exists for “legal errors ‘underlying’” the BIA’s sua sponte decision. The panel again avoided deciding that question, because any alleged error was harmless given later developments.

F. Harmless error and the futility exception to remand

The court’s refusal to remand rested on intervening circuit precedent: Perdomo Ulloa v. Bondi, 171 F.4th 300 (4th Cir. 2026), which held that—even after Belcher v. Commonwealth—an offense with a maximum sentence of 12 months still qualifies as one “for which a sentence of one year or longer may be imposed” under 8 U.S.C. § 1227(a)(2)(A)(i). That destroyed Huynh’s “combination of Dimaya and Belcher” theory as to CIMT removability and led him to concede removability on that ground.

With removability now certain, the panel applied a well-developed futility/harmless-error principle: remand is unnecessary where it would be an “idle and useless formality” and there is “not the slightest uncertainty” about the outcome, citing Morgan Stanley Cap. Grp. Inc. v. Public Util. Dist. No. 1 of Snohomish Cnty., 554 U.S. 527 (2008) and Calcutt v. Federal Deposit Ins. Corp., 598 U.S. 623 (2023) (per curiam), and noting reaffirmation in Food & Drug Admin. v. Wages & White Lion Invs., L.L.C., 604 U.S. 542 (date as quoted in opinion). The court also referenced the ordinary administrative remand principle associated with Immigration & Naturalization Serv. v. Orlando Ventura, 537 U.S. 12 (2002) (per curiam), but treated this as a case falling within the harmless-error/futility exception rather than the ordinary remand rule.

G. Contextual citations

The opinion contained additional context-setting authorities: Lopez v. Bondi, 167 F.4th 223 (4th Cir. 2026) (finality of removal orders under 8 U.S.C. § 1101(a)(47)(B)); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) (historical repatriation context for Vietnam); Orellana v. Bondi, 141 F.4th 560 (4th Cir. 2025) (non-enforceability of certain immigration policy documents as conferring individual rights); and Grayson O Co. v. Agadir Int'l LLC, 856 F.3d 307 (4th Cir. 2017) (briefing/argument preservation, quoted for “passing shot[s]”).

3.2 Legal Reasoning

A. Equitable tolling: extraordinary circumstance assumed, diligence not shown

The court largely sidestepped whether Dimaya or Belcher definitively constituted “extraordinary circumstances,” instead assuming (consistent with Williams v. Garland) that intervening judicial decisions can qualify. The dispositive failure was diligence: Huynh’s motion did not describe concrete, sustained efforts to investigate and pursue reopening during the years following the cited legal changes.

Two aspects of the diligence reasoning are especially important:

  • Evidence of effort during the tolling period: The record contained essentially no specific actions between Belcher (or Dimaya) and detention besides compliance with ICE reporting and work authorization renewals—conduct the court did not treat as diligence toward reopening.
  • Comparative severity: By contrasting Huynh’s circumstances with the severe barriers in Williams, the court clarified that ordinary life constraints and generalized lack of awareness of the law—explicitly rejected by the BIA and not disturbed on review—will rarely suffice.

The court’s footnote reinforced that even an expanded temporal lens would not help: Huynh did not seek judicial review in 2004, did not appeal the denial of state postconviction relief, and waited nearly seven years after Dimaya to seek reopening despite now acknowledging it could have supported eligibility for discretionary relief.

B. Sua sponte reopening: jurisdiction left open, but remand barred by futility

Even if a legal-error exception to Mosere v. Mukasey exists, the court held remand would be pointless because Perdomo Ulloa v. Bondi foreclosed the petitioner’s core CIMT argument. This is a notable application of administrative harmless error: alleged flaws in agency reasoning become irrelevant when an intervening binding rule makes the outcome inevitable.

3.3 Impact

A. Practical tightening of equitable tolling in change-in-law reopening cases

Although unpublished and nonprecedential, the decision illustrates a rigorous approach to diligence in the Fourth Circuit: change-in-law tolling demands specific, time-linked facts showing pursuit of reopening—not merely later consultation with counsel after detention, continued compliance with supervision, or a longstanding belief that removal was unlikely. The court’s use of Gordillo v. Holder underscores that longer delays require proportionally stronger explanations and documentation.

B. Strategic implications for litigants

  • Preserve and present the “starting point” theory to the BIA: The court’s reliance on De Paredes v. Zen Nails Studio LLC signals that petitioners should clearly identify when the diligence clock starts (and why) at the agency level.
  • Build a diligence record: Counsel should document concrete steps (records requests, consultations, pro se filings, FOIA, legal aid outreach, barriers to access) taken during the relevant period.
  • Beware intervening circuit law during petition-for-review briefing: Perdomo Ulloa v. Bondi converted a potentially material dispute into a conceded non-issue, enabling the court to apply a futility doctrine and avoid remand.

C. Administrative law: reinforced futility exception to ordinary remand norms

The opinion highlights how courts can reconcile Immigration & Naturalization Serv. v. Orlando Ventura with Calcutt v. Federal Deposit Ins. Corp. and Morgan Stanley Cap. Grp. Inc. v. Public Util. Dist. No. 1 of Snohomish Cnty.: the default is remand to the agency for first-instance decisionmaking, but remand is unnecessary when outcome certainty makes it a purely formal act. The citation to Food & Drug Admin. v. Wages & White Lion Invs., L.L.C. signals the court views this futility exception as firmly re-endorsed.

4. Complex Concepts Simplified

Motion to reopen (8 U.S.C. § 1229a(c)(7))
A procedural request to restart completed removal proceedings to consider new evidence or legal developments. Ordinarily must be filed within 90 days of the final removal order.
Equitable tolling
A doctrine that can pause/extend a filing deadline when extraordinary circumstances prevented timely filing and the person acted with reasonable diligence. It is exceptional, not routine.
Reasonable diligence (not maximum feasible diligence)
The person must show consistent, practical efforts to pursue rights given their circumstances—not perfection, but more than inaction or generalized assertions.
Sua sponte reopening (8 C.F.R. § 1003.2(a))
The BIA’s discretionary power to reopen a case on its own initiative. Courts often cannot review the BIA’s refusal to use this power because it lacks a judicially manageable standard.
Crime involving moral turpitude (CIMT)
A federal immigration category for certain offenses considered morally blameworthy. Under 8 U.S.C. § 1227(a)(2)(A)(i), removability typically requires (among other things) that the offense be one “for which a sentence of one year or longer may be imposed.”
Harmless error / futility (no “idle and useless” remand)
Even if an agency arguably made a mistake, a court will not remand if the law and record make the outcome inevitable—because a remand would change nothing.

5. Conclusion

Tho Duc Huynh v. Todd Blanche reinforces two core points in reopening litigation. First, even where intervening case law may qualify as an “extraordinary circumstance,” equitable tolling will fail absent a detailed, credible showing of reasonable diligence during the relevant period; long delays demand correspondingly robust explanations. Second, challenges to the BIA’s refusal to reopen sua sponte—already jurisdictionally constrained under Mosere v. Mukasey—may be defeated outright by the futility doctrine when intervening precedent (here, Perdomo Ulloa v. Bondi) makes removability certain, rendering remand an “idle and useless formality.”