Equitable Tolling Rebuffed for Pereira/Niz-Chavez “Stop-Time” Arguments
A Comprehensive Commentary on Guo Mei Liao v. Bondi, Second Circuit, 26 June 2025

1. Introduction

The case of Guo Mei Liao v. Bondi arrives at the Second Circuit as a petition for review of the Board of Immigration Appeals’ (“BIA”) refusal to reopen, or reconsider, Ms. Liao’s 2002 removal order. The petitioner, a Chinese national, contended that two Supreme Court decisions—Pereira v. Sessions (2018) and Niz-Chavez v. Garland (2021)—revitalised her eligibility for Cancellation of Removal (“COR”) by extending her period of continuous physical presence. She argued that these decisions constituted “extraordinary circumstances” justifying equitable tolling of the strict statutory deadlines for filing motions to reopen or reconsider.

Key questions before the Court were:

• Whether changes in law (Pereira and Niz-Chavez) can, by themselves, constitute extraordinary circumstances warranting equitable tolling of the 30-day/90-day statutory filing periods and the one-motion limit established by 8 U.S.C. § 1229a(c)(6)–(7).
• Whether 2021 Immigration and Customs Enforcement (“ICE”) policy guidance binds the BIA to reopen proceedings absent DHS opposition.
• Whether the petitioner is now prima facie eligible for COR such that reopening would be appropriate.

2. Summary of the Judgment

In a Summary Order (therefore non-precedential under the Second Circuit’s Local Rule 32.1.1), the Court:

1. Denied the petition for review.
2. Held that the BIA did not abuse its discretion in finding Liao’s 2018 and 2021 motions untimely (filed well beyond the 30-day and 90-day windows) and number-barred (because she previously filed to reopen in 2008).
3. Affirmed the BIA’s refusal to apply equitable tolling, concluding that an intervening change in law alone is not an “extraordinary circumstance.”
4. Rejected reliance on ICE’s 2021 litigation memorandum, noting that it constrains DHS counsel, not the BIA.
5. Declined jurisdiction over the BIA’s refusal to reopen the matter sua sponte.

3. Analysis

3.1 Precedents Cited

• Pereira v. Sessions, 585 U.S. 198 (2018)
  Clarified that a Notice to Appear (“NTA”) lacking date and time information does not trigger the “stop-time rule.”
• Niz-Chavez v. Garland, 593 U.S. 155 (2021)
  Held that a later hearing notice does not cure a defective NTA for stop-time purposes.
• Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000)
  Articulated equitable tolling standard: petitioner must show that “extraordinary circumstances” prevented timely filing.
• Jin Bo Zhao v. INS, 452 F.3d 154 (2d Cir. 2006)
  Applied equitable tolling where ineffective assistance of counsel obstructed filing.
• Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008)
  Restated abuse-of-discretion review for BIA denials of reopen/reconsider motions.
• Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006)
  Recognised the Court’s lack of jurisdiction to review the BIA’s sua sponte reopening decisions.
• Other supportive citations: INS v. Bagamasbad, 429 U.S. 24 (1976); Li Chen v. Garland, 43 F.4th 244 (2d Cir. 2022); Jin-Hui Jiang v. Garland, No. 23-6704 (2d Cir. 2024).

3.2 Legal Reasoning

1. Statutory Bars
   8 U.S.C. § 1229a(c)(6) sets a 30-day deadline for motions to reconsider; § 1229a(c)(7)(C) sets a 90-day deadline for motions to reopen and limits each non-citizen to one such motion. Liao’s final removal order issued in 2002; her subsequent motions (2018, 2021) are both untimely and exceed the single-motion allowance.
2. Equitable Tolling
   The Court applied the two-prong test of Iavorski—extraordinary circumstance + due diligence—finding the first prong unmet. • Intervening Supreme Court rulings per se do not constitute extraordinary circumstances.
   • By contrast, ineffective assistance or concealment of information by the Government might.
   • Because Liao could have filed within statutory periods regardless of future doctrinal shifts, tolling was inappropriate.
3. ICE 2021 Guidance Not Binding
   The memorandum merely recommends that DHS trial attorneys join or not oppose certain reopening motions; it imposes no obligation on the BIA (part of the Department of Justice) to reopen cases, nor does it automatically render a motion “unopposed.”
4. No Jurisdiction Over Sua Sponte Reopening
   Binding Second Circuit precedent (Ali, Li Chen) forecloses review of purely discretionary BIA decisions not to reopen sua sponte under 8 C.F.R. § 1003.2(a).

3.3 Impact

Although a summary order is non-precedential, it offers a persuasive indication of how the Second Circuit is likely to view similar equitable-tolling claims post-Pereira/Niz-Chavez. Key ramifications:

• Curtailment of Late COR-Based Motions – Non-citizens hoping to leverage Pereira/Niz-Chavez after missing statutory windows face an uphill battle absent additional factors (e.g., fraud, ineffective assistance).
• Strategic Ramifications for Counsel – Lawyers must file protective motions promptly rather than banking on future case law changes.
• Agency-Guidance Limits – Confirms that internal DHS memoranda cannot compel the BIA to act.
• Ongoing “Stop-Time” Litigation – The Court’s footnote suggests the unresolved issue whether a final removal order severs continuous presence; litigants may pursue a precedential ruling in a fully-published opinion.

4. Complex Concepts Simplified

• Motion to Reopen vs. Motion to Reconsider
  • Reopen: introduces new facts or evidence that could alter the outcome.
  • Reconsider: asks the tribunal to re-evaluate legal errors in its prior decision.
• Stop-Time Rule
  Under 8 U.S.C. § 1229b(d)(1), service of a valid NTA stops a non-citizen from accruing continuous physical presence for COR eligibility.
• Continuous Physical Presence
  A ten-year unbroken stay in the U.S., subject to various statutory interruptions (e.g., NTA service, certain departures).
• Equitable Tolling
  A doctrine permitting courts/agencies to ignore a statutory time limit when, in fairness, the petitioner was prevented from timely action by forces beyond her control and displayed due diligence in pursuing rights.
• Summary Order
  A non-precedential disposition intended for cases that do not require a full published opinion; nevertheless, they often reveal the court’s thinking.
• Number-Bar
  The statutory limit of one motion to reopen per removal proceeding (8 U.S.C. § 1229a(c)(7)(A)).

5. Conclusion

Guo Mei Liao v. Bondi underscores that—at least in the Second Circuit—a mere shift in Supreme Court doctrine does not, by itself, overcome the rigid timeliness and numerosity constraints governing motions to reopen or reconsider immigration cases. Petitioners seeking relief long after a final removal order must still demonstrate truly extraordinary circumstances, such as government misconduct or ineffective assistance, coupled with diligent pursuit of their claims. Moreover, practitioners cannot rely on agency policy memoranda to compel reopening, nor can they expect courts to review refusals to reopen sua sponte. While the opinion carries no formal precedential weight, it provides a clear roadmap: equitable tolling remains an exceptional remedy, and the statutory machinery around removal orders will continue to function with tight deadlines that aspirants ignore at their peril.