CA5 on Equitable Tolling: Lugo-Resendez v. Lynch

Lugo-Resendez v. Lynch, July 28, 2016- "[Nine other circuits have] held that the deadline for filing a statutory motion to reopen is subject to equitable tolling in certain circumstances.  We are persuaded by the reasoning of these cases and join our sister circuits in holding that the deadline for filing a motion to reopen under § 1229a(c)(7) is subject to equitable tolling. ... On remand, we instruct the BIA to apply the same equitable tolling standard that this Court uses in other contexts. ... In a case such as this one, the BIA should give due consideration to the reality that many departed aliens are poor, uneducated, unskilled in the English language, and effectively unable to follow developments in the American legal system — much less read and digest complicated legal decisions. The BIA should also take care not to apply the equitable tolling standard “too harshly” because denying an alien the opportunity to seek cancellation of removal — when it is evident that the basis for his removal is now invalid — “is a particularly serious matter.” As the Supreme Court recently reminded, the core purpose of equitable tolling is to escape the “evils of archaic rigidity” and “to accord all the relief necessary to correct . . . particular injustices.” For now, we leave it to the BIA to determine whether this case presents an injustice that warrants correction. ... For the reasons stated above, we GRANT the petition for review and REMAND to the BIA for further proceedings not inconsistent with this opinion."

[Hats way off to litigation superstar Jodi Goodwin!]