Reaffirming the Two-Prong Standard for Equitable Tolling in Immigration Motions to Reopen
(Allaeldin Elhattab v. Attorney General, Third Circuit, 2025)

1. Introduction

The United States Court of Appeals for the Third Circuit’s decision in Allaeldin Elhattab v. Attorney General addresses a recurring issue in immigration jurisprudence: when, if ever, the statutory time-and-number limits on motions to reopen removal proceedings may be equitably tolled. Elhattab—a non-citizen ordered removed more than fifteen years ago—filed his fourth motion to reopen, asserting that several intervening changes in the law constituted “extraordinary circumstances” excusing lateness. The Board of Immigration Appeals (BIA) denied the motion; the Third Circuit, exercising limited review, affirmed.

• Petitioner: Allaeldin Elhattab
• Respondent: Attorney General of the United States
• Procedural Posture: Petition for review of BIA order denying a motion to reopen; venue in the Third Circuit because removal proceedings occurred in Newark, NJ.
• Key Question: Did the BIA abuse its discretion by refusing to equitably toll the 90-day/one-motion limitations under 8 U.S.C. § 1229a(c)(7)?

2. Summary of the Judgment

Applying abuse-of-discretion review, the Third Circuit denied the petition, holding that:

1. Elhattab’s motion was indisputably time- and number-barred (fourth motion; filed 15 years after the removal order).
2. Equitable tolling requires both (a) diligent pursuit of rights and (b) an extraordinary circumstance preventing timely filing (Holland v. Florida standard).
3. Changes in case law (Pereira, Niz-Chavez) or the now-rescinded BIA decision In re X-G-W- did not excuse Elhattab’s prolonged inaction.
4. The BIA’s refusal to exercise sua sponte reopening authority is unreviewable, and its record-review presumption was not rebutted.

3. Analysis

3.1 Precedents Cited and Their Influence

• Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004)
  Recognized the “compelling circumstances” standard for reopening and set the tone for narrow grants.
• Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002)
  Articulated abuse-of-discretion review: reversal only if BIA acts “arbitrarily, irrationally, or contrary to law.”
• Holland v. Florida, 560 U.S. 631 (2010)
  Imported the two-prong equitable tolling test (diligence + extraordinary circumstance) into immigration motions via Alzaarir.
• In re X-G-W-, 22 I.&N. Dec. 71 (BIA 1998) & In re G-C-L-, 23 I.&N. Dec. 359 (BIA 2002)
  Show the BIA’s limited, discretionary window (1998-2002) of granting untimely motions based on coerced-family-planning claims, later rescinded.
• Pereira v. Sessions, 585 U.S. 198 (2018) & Niz-Chavez v. Garland, 593 U.S. 155 (2021)
  Together define what constitutes a valid Notice to Appear (NTA) and the stop-time rule. Elhattab tried to leverage these cases but offered no diligence.
• Mahmood v. Gonzales, 427 F.3d 248 (3d Cir. 2005)
  Reinforces that waiting “over a year” shows lack of diligence — a central citation supporting denial here.
• Jurisdiction cases (Khan, Nkomo, Darby) address the court’s capacity to review motions-to-reopen issues and sua sponte refusals.

3.2 The Court’s Legal Reasoning

1. Statutory Limits Are Threshold Bars.
   Section 1229a(c)(7) allows only one motion within 90 days of a final removal order. Elhattab’s motion—his fourth and 15 years late—was facially barred.
2. Equitable Tolling Standard.
   The Third Circuit, echoing Holland, reaffirmed that:

   1 – The litigant exercised diligence;
   2 – An extraordinary circumstance prevented timely filing.

   Both must be met; neither can substitute for the other.
3. Absence of Diligence.
   • No action for 15 years.
   • Delay even after pivotal decisions: 150 days post-Niz-Chavez; almost two years post-Guadalupe (3d Cir.).
   This, the court said, “does not come close” to diligence.
4. No Extraordinary Circumstance.
   • In re X-G-W-: rescinded in 2002, irrelevant to petitioner’s claims.
   • Pereira/Niz-Chavez: legal changes alone are insufficient; must link to diligent pursuit.
5. Presumption of Regularity.
   The BIA is presumed to review the full record. Elhattab produced no evidence overcoming that presumption (Darby/Kamara).
6. Sua Sponte Reopening Is Non-reviewable.
   The BIA’s decision not to reopen on its own authority lies outside the court’s jurisdiction (Nkomo).

3.3 Potential Impact

Though labeled “Not Precedential,” the opinion still clarifies and reinforces doctrine within the Third Circuit. Its practical effects include:

• Narrowing the Equitable Door. Litigants must meticulously document diligence in monitoring and acting on legal developments.
• Limiting Reliance on Broad Legal Shifts. The decision signals that Pereira/Niz-Chavez arguments will not rescue stale cases unless paired with prompt action.
• Sua Sponte Reality Check. Advocates may temper expectations about judicial review of the BIA’s refusal to reopen on its own motion.
• Administrative Efficiency. The ruling supports finality by discouraging serial, long-delayed reopening attempts.

4. Complex Concepts Simplified

Motion to Reopen

A formal request asking the BIA or Immigration Judge to re-examine a case based on new facts or evidence. Statutorily limited to one motion within 90 days.

Equitable Tolling

A judicial doctrine that pauses a filing deadline when—despite diligence—extraordinary events made timely filing impossible.

Notice to Appear (NTA)

The charging document initiating removal proceedings. Under Pereira/Niz-Chavez, it must state the date, time, and place of hearing to trigger certain timing rules.

Stop-Time Rule

Statutory mechanism that “stops” continuous residence accrual once a proper NTA is served, affecting eligibility for cancellation of removal.

Sua Sponte Reopening

The BIA’s self-initiated reopening under 8 C.F.R. § 1003.2(a). Purely discretionary and generally unreviewable by federal courts.

5. Conclusion

The Third Circuit’s opinion in Elhattab does not blaze new doctrinal trails, but it provides a crisp, authoritative reminder that time matters as much as substance in immigration litigation. Even dramatic changes in the legal landscape—such as the Supreme Court’s redefinition of a proper NTA—cannot by themselves overcome statutory deadlines. Absent prompt, documented efforts by a petitioner, Holland’s two-prong test remains an insurmountable hurdle.

For practitioners, the message is unmistakable: continuously monitor clients’ cases, act swiftly when precedent shifts, and compile evidence of diligence from day one. For non-citizens, the case underscores the finality of removal orders and the narrowness of post-order remedies. Finally, for the courts, Elhattab preserves the delicate balance between equitable flexibility and the need for certainty in immigration adjudication.