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February 21, 2018

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Sheridan Green thanked for assistance in getting the Fifth Circuit to recognize equitable tolling for motions to reopen

February 23, 2018

On July 28, 2016 the Fifth Circuit Court of Appeals decided Lugo-Resendez v. Lynch, 831 F.3d 337 (2016), which held for the first time that the 90-day deadline on motions to reopen immigration proceedings is subject to equitable tolling.  Lugo is a remarkable case and a landmark victory for aliens who were ordered removed--sometimes decades ago--for reasons later determined to be invalid.  The problem has been that the only way to reopen a prior removal order is through a motion to reopen, and by statute motions to reopen can only be filed within 90 days of the removal order.  But litigation of key issues moves at a glacial pace.  The court precedents that vindicate these individuals are sometimes not litigated and published until decades after their own proceedings have terminated, leaving them in permanent legal limbo.

 

In our case Mata v. Lynch, 135 S. Ct. 2150 (2015), the U.S. Supreme Court finally reversed the Fifth Circuit, which for years had stubbornly maintained it had no jurisdiction to determine whether the motion to reopen statute was subject to equitable tolling.  In response to Mata, the Fifth Circuit issued Lugo, holding that because it was forced to reverse its position on the jurisdictional issue, it now must decide whether equitable tolling applies.  The court then agreed with every other circuit court of appeals that an alien who shows 1) that some extraordinary circumstance stood in the way of timely filing his motion to reopen (like that the decision holding his basis of removal was invalid did not come out until after the 90 days had elapsed) and 2) that he pursued his claim with reasonable diligence, the 90 day deadline could be stretched as justice required.

 

On July 28, 2016, the AILA Texas Chapter recognized the efforts of attorneys, including Sheridan Green, who had laid the groundwork for this wonderful decision.

 

Even after Lugo, though, motions to reopen asserting equitable tolling are no picnic.  They require extensive detail and evidence about the lengths the alien has gone through over the years to research the law, contact and interview lawyers, and make every possible effort to get the case reopened.  Just as important, they require that once the alien learns about the possibility of reopening the case he prove he acted as quickly as possible to do so.

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