Avila-Morales v. Bondi: Futile Filings Are Not Required to Show Equitable Tolling Diligence

In Avila-Morales v. Bondi, No. 23-2054 (9th Cir. Jan. 26, 2026), the Ninth Circuit held that the Board of Immigration Appeals abused its discretion by denying equitable tolling to a petitioner who filed a motion to reopen within 90 days of obtaining state court vacatur of his underlying conviction. The court clarified that reasonable diligence does not require an immigrant to pursue futile legal filings before a viable path to relief exists.

The Key Facts and Procedural History

Samuel Avila-Morales was subject to a final order of removal that rested on a California criminal conviction. On August 23, 2019, the California Superior Court vacated that conviction. Within 90 days of that vacatur date, Avila-Morales filed a motion to reopen his removal proceedings with the Board of Immigration Appeals. The Board denied the motion as untimely, concluding that he failed to demonstrate due diligence because he had not sought relief earlier while the conviction remained on his record.

The Governing Standard and Court Analysis

The Ninth Circuit reviewed the Board’s denial for abuse of discretion under Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011). Under Hernandez-Ortiz v. Garland, 32 F.4th 794, 801 (9th Cir. 2022), equitable tolling requires showing that an extraordinary circumstance prevented timely filing and that the petitioner acted with due diligence. The court reaffirmed that due diligence means reasonable diligence under the circumstances rather than maximum possible diligence.

Applying the three-part diligence framework from Avagyan v. Holder, 646 F.3d at 679, the court focused on when the tolling period ends. The tolling period ends when a petitioner obtains vital information bearing on the existence of the claim. Because Avila-Morales’s motion to reopen depended on the vacatur of his conviction, he obtained that vital information on August 23, 2019. The court held that the Board erred by faulting him for not seeking immigration reopening prior to that date, emphasizing that petitioners are not required to seek futile relief to establish due diligence.

Disposition and Practical Reach

The Ninth Circuit granted the petition for review, held that equitable tolling applied to make the motion timely, and remanded the matter for the Board to consider the substantive merits of the motion to reopen. This decision is a nonprecedential memorandum disposition under Ninth Circuit Rule 36-3. The court evaluated the evidence and circumstances together, found reasonable efforts to pursue relief, and identified the vacatur date as receipt of vital information on this record. A later applicant needs a supported diligence chronology and the actual basis for reopening, rather than treating the date of any state-court order as a complete eligibility test.

The court found reasonable efforts to pursue relief under the second part of Avagyan, 646 F.3d at 679, considering the circumstances together. It remanded for the agency to address the reopening motion on its merits; it also granted the identified judicial-notice motions. Avila-Morales, memorandum, pages 2–3.