Unpub. CA5 Equitable Tolling Victory: Lara Canales v. Garland

Lara Canales v. Garland

"This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. ... [E]ach of the BIA’s bases for determining that Lara Canales had not accrued the continuous physical presence required for eligibility of cancellation of removal was legal error. We now hold that Lara Canales is statutorily eligible to seek cancellation of removal. However, this holding does not automatically entitle Lara Canales to have her motion to reopen heard on the merits. The BIA must, upon remand, engage in the fact-intensive determination of whether the 90-day deadline on motions to reopen should be tolled because of the extraordinary circumstance presented by Pereira. If the BIA determines Lara Canales satisfies the requirements for equitable tolling, she may then present her motion for a determination on its merits. We therefore VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND this case for further consideration not inconsistent with this opinion."

[Hats off once again to superlitigator Raed Gonzalez!]