Immigration - Motion to reopen - Equitable tolling.

Byline: Mass. Lawyers Weekly Staff

Where the Board of Immigration Appeals denied a petitioner's motion to reopen his claim for withholding of removal, the BIA did not abuse its discretion, as the motion was nearly seven years late.

Affirmed.

"[Petitioner Edgar Rolando] Tay-Chan argues that the BIA abused its discretion when it denied his motion to reopen his claim for withholding of removal. More particularly, he faults the BIA for declining to equitably toll the deadline by which he should have filed his motion to reopen.

" We do not dwell on the untimeliness Tay-Chan does not argue that his motion was timely, nor does he argue that any statutory exception applies.

"Instead, conceding he missed the deadline, Tay-Chan proffers the doctrine of equitable tolling: he says the ninety-day cut-off should have been equitably tolled based on the ineffective assistance provided to him by his attorney.

" [H]is argument tells us nothing about why he waited nearly seven years before taking any steps at all to address his immigration status, and it is this unexplained delay that is so problematic in that it undermines any assertion that he pursued his rights (the ineffective assistance claim, the motion to reopen) with the requisite due diligence. ... Indeed, this unexplained inactivity during the years between the BIA's 2011 ruling on his withholding of removal and his 2018 motion to reopen fully supports the BIA's no-due-diligence finding. We recite what we have explained many times: '[t]he [equitable tolling] doctrine is not available as a means of rescuing a party who has failed to exercise due...

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