No Equitable Tolling for INA’s One-Motion Rule: The Fifth Circuit’s Categorical Bar on Tolling the Numerical Limit in Motions to Reopen

Introduction

In Garcia Morin v. Bondi, No. 24-60590 (5th Cir. Sept. 12, 2025), the Fifth Circuit addressed whether the Immigration and Nationality Act’s numerical limit on motions to reopen—commonly called the “one-motion rule”—is subject to equitable tolling. Writing for a unanimous panel, Judge Andrew Oldham held that it is not. The court thus announced a clear doctrinal rule: equitable tolling does not apply to 8 U.S.C. § 1229a(c)(7)(A)’s numerical bar on motions to reopen, which admits only a single, specific statutory exception for certain battered spouses, children, and parents under § 1229a(c)(7)(C)(iv).

The petitioner, a longtime lawful permanent resident with two aggravated assault convictions—one involving a firearm and one involving a knife—sought to reopen his removal proceedings a second time, principally invoking the Supreme Court’s decision in Borden v. United States, 593 U.S. 420 (2021), and arguing for equitable tolling of both the 90-day deadline and the one-motion numerical cap. The Board of Immigration Appeals (BIA) denied the motion as number-barred and declined to reopen sua sponte. The Fifth Circuit dismissed in part (for lack of jurisdiction over the refusal to reopen sua sponte) and denied in part, holding that equitable tolling cannot overcome the numerical limit.

This opinion cements and clarifies the Fifth Circuit’s finality-driven approach to post-removal-order reopening: while equitable tolling remains available for the 90-day time bar (following circuit precedent), it is categorically unavailable for the separate and independent numerical bar. The decision also underscores the limited scope of judicial review when removability is predicated on certain criminal grounds, and it reaffirms the circuit’s view that there is no due process liberty interest in discretionary motions to reopen.

Summary of the Opinion

• The petitioner, a Mexican citizen and lawful permanent resident since 1982, was convicted in 2011 for shooting his ex-wife (a firearm offense) and in 2018 for assaulting a roommate with a knife. DHS charged him as removable under 8 U.S.C. § 1227(a)(2)(C) (firearm offenses). An IJ ordered removal; the BIA affirmed in 2020.
• After an untimely petition for review failed, the petitioner filed his first motion to reopen in 2022, invoking Borden to argue that his crimes were not “aggravated felonies” and to seek relief eligibility. The BIA denied, explaining that his removability rested on the firearm ground, not the aggravated-felony ground, and declined sua sponte reopening.
• In 2024, the petitioner filed a second motion to reopen. The BIA denied it as violating the INA’s one-motion numerical bar, noting that the Fifth Circuit has not applied equitable tolling to that bar; it again declined sua sponte reopening.
• On review, the Fifth Circuit:
  • Dismissed for lack of jurisdiction the challenge to the Board’s refusal to reopen sua sponte (Qorane v. Barr).
  • Exercised jurisdiction over constitutional and legal questions (Diaz v. Sessions), and reached the question whether equitable tolling applies to the number bar.
  • Held as a matter of law that equitable tolling is unavailable for § 1229a(c)(7)(A)’s numerical bar, emphasizing text, structure, and finality principles.
• Because the second motion exceeded the numerical cap and no statutory exception applied, the petition was dismissed in part and denied in part.

Analysis

Precedents Cited and Their Influence

• Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016):
  The court reaffirmed that equitable tolling applies to the INA’s 90-day deadline for motions to reopen upon a showing of diligence and extraordinary circumstances. Crucially, Garcia Morin distinguishes time bars (tollable) from number bars (not tollable).
• Djie v. Garland, 39 F.4th 280 (5th Cir. 2022):
  A cornerstone for the court’s statutory analysis. In Djie, the Fifth Circuit rejected a DOJ regulation (8 C.F.R. § 1003.2(c)(3)) insofar as it purported to recognize a non-statutory exception to the number bar (specifically, extending the changed-country-conditions asylum exception to the number bar). Garcia Morin extends that logic to equitable tolling: if agencies cannot create extra-statutory exceptions to the number bar, courts should not do so via equitable tolling either.
• Jones v. Hendrix, 599 U.S. 465 (2023), and Felker v. Turpin, 518 U.S. 651 (1996):
  The Fifth Circuit analogizes the INA’s numerical bar to AEDPA’s second-or-successive restrictions, characterizing the number bar as a substantive “modified res judicata rule” that protects finality, not a mere calendaring rule. This analogy undergirds the court’s refusal to graft equitable tolling onto the one-motion cap.
• Young v. United States, 535 U.S. 43 (2002), and Holland v. Florida, 560 U.S. 631 (2010):
  These cases establish the background presumption that statutes of limitations are generally subject to equitable tolling. Garcia Morin explains why that presumption does not carry over to number bars, which are materially different in purpose and effect.
• United States v. Wong, 575 U.S. 402 (2015):
  The opinion cites Wong to show that even nonjurisdictional limits can be non-tollable if Congress so provides. This rebuts the argument that “nonjurisdictional” equals “tollable.”
• INS v. Abudu, 485 U.S. 94 (1988):
  Emphasized finality and the discretionary nature of motions to reopen. Garcia Morin quotes Abudu to underscore Congress’s balancing of fairness and finality—and why courts should respect the deliberate one-motion structure.
• Diaz v. Sessions, 894 F.3d 222 (5th Cir. 2018):
  Confirms limited judicial review over motions to reopen when removability is based on enumerated criminal grounds (such as firearms offenses), save for legal or constitutional issues—permitting the court to decide the pure legal question presented here.
• Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019):
  Establishes that the court lacks jurisdiction to review the BIA’s refusal to reopen sua sponte, leading to dismissal of that part of the petition.
• Altamirano-Lopez v. Gonzales, 435 F.3d 547 (5th Cir. 2006); Garcia-Gonzalez v. Garland, 76 F.4th 455 (5th Cir. 2023); Finlay v. INS, 210 F.3d 556 (5th Cir. 2000):
  These decisions ground the Fifth Circuit’s due process analysis: because motions to reopen are discretionary, there is no protected liberty interest; therefore, ineffective assistance in pursuing reopening does not yield a due process entitlement to equitable tolling of the number bar.
• Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000); Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847 (11th Cir. 2013); Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004); Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006); Zhao v. INS, 452 F.3d 154 (2d Cir. 2006):
  Cited as contrary authority from other circuits that have either treated the number bar as subject to equitable tolling or invoked due process to permit tolling. Garcia Morin respectfully rejects those approaches, emphasizing textual limits and finality.
• Kucana v. Holder, 558 U.S. 233 (2010), and Patel v. Garland, 596 U.S. 328 (2022):
  Support the premise that immigration reopening is committed to agency discretion in key respects; but that agency-based discretion (including sua sponte reopening) does not translate into judicial equitable power to create extra-statutory exceptions.

Legal Reasoning

1. Text and Structure of § 1229a(c)(7):
   • The INA provides: “An alien may file one motion to reopen proceedings under this section, except that this limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv).” 8 U.S.C. § 1229a(c)(7)(A).
   • Subparagraph (C)(iv) is a narrow, express exception for certain battered spouses, children, and parents. The explicit inclusion of one exception implies the exclusion of others. The court applies the canon that where Congress prescribes a thing to be done in a particular way, “it includes a negative of any other mode” (citing Christensen v. Harris County).
   • Because Congress created only one enumerated escape hatch for the number bar, courts cannot append further judge-made exceptions such as equitable tolling.
2. Time Bars vs. Number Bars:
   • Statutes of limitations “govern the timeframe for bringing a claim” and, by longstanding tradition, may be equitably tolled. The Fifth Circuit adheres to this tradition for the 90-day filing deadline (Lugo-Resendez).
   • By contrast, the one-motion restriction is a substantive constraint—a “modified res judicata rule”—designed to preserve finality and to limit successive collateral attacks. Such substantive restrictions do not carry a background presumption of equitable tolling.
   • The court draws on AEDPA analogies (Jones; Felker) to explain that number bars express Congress’s finality judgment, not merely procedural timing.
3. Agency Regulations Cannot Expand Statutory Exceptions:
   • Building on Djie, the court reiterates that agency regulations cannot “punch holes” in Congress’s one-motion rule by adding exceptions not in the statute (e.g., using changed-country-conditions to evade the number bar). If the Executive cannot add exceptions, neither can courts via equity.
4. Nonjurisdictional Does Not Mean Tollable:
   • Even if the number bar is a nonjurisdictional claim-processing rule, Congress can still foreclose tolling. The statute’s text and structure do so here, and Wong confirms that nonjurisdictional limits are not automatically tollable.
5. Sua Sponte Reopening Is Not a Judicial Equitable Analog:
   • The BIA’s sua sponte reopening authority derives from the Attorney General’s delegated discretion; it is not a proxy for judicial equitable power. Courts’ equitable authority is constrained by history and by statutes that displace equitable remedies. Here, the statutory one-motion rule displaces additional equitable exceptions.
6. Due Process Claim Rejected:
   • The Fifth Circuit reiterates that because motions to reopen are entirely discretionary, there is no protected liberty interest in them; thus, due process does not require equitable tolling of the number bar, even where ineffective assistance affects a prior motion.
7. Borden’s Limited Relevance:
   • Borden concerned the mens rea required for offenses to qualify as “violent felonies” under ACCA. The petitioner’s removability, however, was predicated on a firearms offense under § 1227(a)(2)(C), not an aggravated felony ground. Accordingly, Borden does not affect removability. At most, it might bear on eligibility for relief from removal, but that cannot overcome the numerical limit on motions to reopen.

Impact

Garcia Morin establishes a bright-line rule in the Fifth Circuit: no equitable tolling of the INA’s numerical bar on motions to reopen. The practical effects are substantial:

• One Shot Means One Shot:
  Noncitizens in the Fifth Circuit generally have only one chance to file a motion to reopen, absent the specific statutory exception in § 1229a(c)(7)(C)(iv). Practitioners must treat the first motion as the only opportunity to present post-order grounds and should comprehensively include all viable claims and new legal developments.
• Finality Prevails Over Equity for Successive Motions:
  Changes in law (e.g., Borden-type arguments) that emerge after a first motion has already been filed will not support a second motion via equitable tolling. The case underscores Congress’s emphasis on finality over iterative error-correction in this context.
• Regulatory Workarounds Are Insecure:
  Building on Djie, the court’s reasoning signals skepticism toward regulatory exceptions to the number bar that lack a statutory basis. Parties should not rely on regulatory exemptions to the numerical cap within the Fifth Circuit unless grounded in express statutory authorization.
• Limited Judicial Review and Non-Reviewable Discretion:
  Refusals to reopen sua sponte remain unreviewable, and when removability rests on firearms offenses, the court’s jurisdiction is confined to constitutional claims or questions of law. Together, these doctrines compress both the merits and the reviewability of reopening decisions.
• Circuit Conflict Sharpened:
  The Fifth Circuit parts ways with decisions from the Second, Ninth, and Eleventh Circuits that have entertained equitable tolling of the numerical bar or rested tolling on due process. This deepens a circuit split that may invite further en banc or Supreme Court attention.
• Strategic Implications for Relief:
  Because Borden affects aggravated-felony classifications rather than firearms removability under § 1227(a)(2)(C), litigants must carefully parse the correct statutory ground for removability and whether a change in law bears on removability itself or only on eligibility for discretionary relief—and must do so within the constraints of the single-motion regime.

Complex Concepts Simplified

• Motion to Reopen:
  A post-removal-order request to the immigration court or BIA to re-examine a case based on new facts or legal developments. The INA generally allows only one such motion, filed within 90 days, with narrow exceptions.
• Time Bar vs. Number Bar:
  The time bar is the 90-day filing deadline for a motion to reopen. The number bar is the one-motion limit. The Fifth Circuit permits equitable tolling of the time bar (in narrow circumstances), but not of the number bar.
• Equitable Tolling:
  A doctrine that pauses a deadline when, despite diligence, extraordinary circumstances beyond a party’s control prevented timely filing. Traditionally applied to time limits, not to substantive limits like a one-motion cap.
• Sua Sponte Reopening:
  The BIA’s discretionary power to reopen a case on its own initiative (or upon a party’s request), even if time and number limits would otherwise block it. Courts in the Fifth Circuit lack jurisdiction to review refusals to exercise this discretion.
• Firearm Offense vs. Aggravated Felony:
  They are distinct removal grounds. Borden addressed the scope of “violent felonies” (and, by analogy, “crimes of violence”) but does not affect removability premised on § 1227(a)(2)(C) firearm offenses.
• Modified Res Judicata:
  A principle limiting successive attempts to reopen or relitigate. The court analogizes the one-motion rule to this principle: it is a structural finality device, not a mere deadline, and thus not amenable to tolling.

Conclusion

Garcia Morin v. Bondi decisively answers a recurring question in immigration practice within the Fifth Circuit: equitable tolling does not apply to the INA’s one-motion numerical cap under § 1229a(c)(7)(A). The court’s analysis is textual, structural, and comparative, anchoring the rule in Congress’s deliberate choice to prioritize finality and to provide only a single, specific exception to the numerical bar. While the 90-day deadline remains equitably tollable in appropriate cases, litigants cannot rely on equity to file a second motion to reopen.

The decision narrows avenues for post-order relief, especially where intervening legal changes arise after an initial motion has been filed, and it reinforces the limited reviewability of discretionary reopening decisions. In the broader legal landscape, Garcia Morin deepens an existing circuit division over whether equitable tolling can mitigate the one-motion rule—positioning the Fifth Circuit as a leading proponent of strict statutory finality in immigration reopening.