Guerrero-Lasprilla: When a Late Motion Is Called “Factual,” a Court Can Still Hear It

You were deported years ago because of a drug conviction. Then the law changed, and you may now qualify for relief that was closed to you when you were removed. You ask the Board of Immigration Appeals to reopen the case, far past the 90-day deadline, and the Board says you did not act quickly enough. Can a federal court even look at that?

Yes. A court can decide whether the Board applied the legal standard correctly to facts that are settled, even when a conviction would otherwise close the courthouse. Where the bar applies, what the court cannot do is second-guess the Board’s findings about what happened. The difference between those two things now governs much of federal review in immigration cases.

The rule comes from Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), Nos. 18-776 and 18-1015, decided March 23, 2020. Two men asked the Supreme Court to let a federal appeals court review the Board’s conclusion that, on facts they said were undisputed, they had not been diligent. The Court held, 7–2, that it could. Justice Breyer wrote for the Court. Justice Thomas dissented, joined in most of his opinion by Justice Alito.

Two men removed years before the law changed

Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles each committed a drug crime and became removable. An immigration judge ordered Guerrero-Lasprilla removed in 1998. The Board ordered Ovalles removed in 2004, reversing an immigration judge. Both orders became final and both men left the country.

A person generally gets one motion to reopen, and it must usually be filed within 90 days of the final order. Their 90 days ended years before anything changed. Later judicial and Board decisions made each of them newly eligible for discretionary relief. Then in 2016 the Fifth Circuit, in Lugo-Resendez v. Lynch, held that the 90-day limit could be equitably tolled, which means extended when fairness requires it. A person seeking tolling generally must show diligence and an extraordinary circumstance that prevented a timely filing. Guerrero-Lasprilla filed a month after that decision. Ovalles filed eight months after it.

The Board denied both, concluding among other things that they had not shown the required due diligence. Both men said the underlying facts were not in dispute. The argument was about what those facts added up to.

Why the Fifth Circuit said it could not look

Two provisions collide here. 8 U.S.C. § 1252(a)(2)(C) bars review of removal orders resting on certain crimes, including aggravated felonies and drug offenses. Section 1252(a)(2)(D), which the Court called the Limited Review Provision, carves out “constitutional claims or questions of law.”

The Fifth Circuit treated diligence as “a factual question,” and concluded that it lacked jurisdiction. So the only issue the Supreme Court had to decide was what “questions of law” means.

What a “question of law” includes

The Court’s answer was that the phrase “includes the application of a legal standard to undisputed or established facts.” It gave four reasons.

First, ordinary judicial usage. The Court has at times described the question whether a set of facts meets a legal standard as a legal one, as when a court decides whether a complaint states a claim. That usage did not settle what Congress meant, the Court said, but it showed the phrase could reasonably cover these questions. Such a question, with both factual and legal parts, is often called a mixed question of law and fact.

Second, the presumption of judicial review. When a statute can reasonably be read either way, the Court reads it to allow review of executive decisions unless Congress clearly said otherwise. Reading the provision to exclude these questions would, the Court said, “effectively foreclose judicial review of the Board’s determinations so long as it announced the correct legal standard.”

Third, the surrounding text. Section 1252(b)(9), the “zipper clause,” channels all review of removal cases into one petition, and it speaks of “questions of law and fact, including interpretation and application of constitutional and statutory provisions.” Congress plainly thought of applying law to facts as part of those categories, which undercut the government’s claim that it always treats mixed questions as a separate third group.

Fourth, history, which the Court returned to when it answered the government. Congress added the Limited Review Provision in response to INS v. St. Cyr, 533 U.S. 289 (2001). That decision read the older bars to preserve habeas review, the traditional court challenge to unlawful detention, to avoid a constitutional problem, and noted that habeas had traditionally reached “errors of law, including the erroneous application or interpretation of statutes.” The Court also said Congress could offer an adequate substitute in the courts of appeals. Congress took up that suggestion. So if a question of law excluded misapplying a standard to undisputed facts, the substitute would fall short of what habeas had covered.

The government’s reading would have let the Board recite and ignore

The government asked why Congress would strip review and then restore nearly all of it, leaving only fact-finding out. The Court answered that the provision was written in response to St. Cyr, rather than from scratch, and that it reaches beyond this one bar.

The government also said the ruling would undercut Congress’s effort to streamline removal cases. The Court replied that the provision “will still forbid appeals of factual determinations,” which it called an important category in the removal context, and that Congress had streamlined matters by largely closing off district-court habeas.

Then the Court turned the argument around. Under the government’s view, the Court said, a Board that recited the standard correctly “would be free to apply it in a manner directly contrary to well-established law.” At oral argument the government had suggested that courts might review certain categories, such as whether someone in a coma always, sometimes or never gets tolling. The Court found that approach unexplained and hard to square with the statute.

The Court reversed the Fifth Circuit’s jurisdictional rulings, vacated its judgments and sent the cases back. The Court did not decide whether either man was diligent.

The dissent: The exception swallows the rule

Justice Thomas said that diligence is a mixed question of law and fact, and that this is exactly why it falls outside the exception. Courts have long treated questions of law, questions of fact and mixed questions as three separate things, and the statute names only one of them. He warned that the Court’s reading would leave barred only pure fact questions, which are already nearly unreviewable under a deferential standard, so that the exception would “all but swallow the rule.” Calling the provision “Limited,” he added, was ironic given how much it now reaches. He read St. Cyr differently too. He called the sentence about erroneous application of statutes dicta, meaning a passing remark that did not decide the case, and said the only guidance in that passage concerned “pure questions of law.” Justice Alito joined all of that opinion except one part questioning the modern presumption of judicial review.

How far it reaches, and where it stops

Three later Supreme Court decisions and a Ninth Circuit case mark the boundaries.

Wilkinson v. Garland, 601 U.S. 209 (2024), carried the rule to the hardship standard in cancellation of removal, a form of discretionary relief. The final decision whether to grant that relief remains unreviewable, and the Court said that a mixed question heavy with facts calls for more deference. It called the question whether established facts meet the standard a quintessential mixed question. Patel v. Garland, 596 U.S. 328 (2022), marks the other edge: A court cannot review facts found in discretionary-relief cases such as credibility, or what someone intended. And Urias-Orellana v. Bondi, 607 U.S. 537 (2026), separated two questions that are easy to confuse. Whether a mixed question can be reviewed at all is one. How much deference the agency gets is another. The case arose from an asylum claim, and the Court held that a Board decision on whether undisputed facts amount to persecution stands unless any reasonable adjudicator would have to conclude otherwise. Guerrero-Lasprilla had set aside that question of how much deference applies, and the Court said it and Wilkinson are not to the contrary. Getting through the door does not mean winning.

The Ninth Circuit’s Magana-Magana v. Bondi, 129 F.4th 557 (9th Cir. 2025), shows both halves in one case. Lucila Magana-Magana, a survivor of repeated abuse, filed a late motion to reopen under the Violence Against Women Act. The court held it could review whether the Board correctly decided that she had not shown extraordinary circumstances. It then upheld the Board under a deferential standard, noting that abuse will be present in most, if not all, motions of this kind. It also declined to reach her tolling claim, which she had never raised with the Board, though it observed that a motion years late would have failed anyway. And it held that the court could not review the Board’s purely discretionary refusal to reopen on its own motion, a common fallback for someone past the deadline. Courts can still check whether the Board based that refusal on the wrong legal premise; Magana-Magana had not made that argument.

In the Ninth Circuit, a Board decision denying tolling is reviewed for abuse of discretion, so the court asks whether the Board acted arbitrarily or irrationally, not what the court would have done.

What this means for a late motion

These steps are our practical reading of the decisions above.

• Build a dated account of what you did and when. Tolling requires diligence as well as an obstacle that kept you from filing on time, and our Goulart analysis shows how a motion can fail because years before the filing go unexplained. Include when you learned of the change, who you asked and what you were told.
• Give the Board facts it has no reason to doubt. Guerrero-Lasprilla applies to established facts. A declaration and supporting documents that the Board has no reason to reject give a court something to apply the standard to. A dispute about whether you are telling the truth may not get that far.
• Tell the Board exactly what you are asking for. Raise tolling and diligence in the motion itself. In Magana-Magana, the court refused to consider a tolling claim because she never raised tolling or diligence with the Board.
• In court, argue the standard against the facts. Where the bar applies, build the argument on facts the Board accepted or did not dispute, then explain why those facts meet the test. Separately raise any claim that the Board used the wrong standard or ignored evidence. A petition that attacks the Board’s factual findings runs into the bar, and the court is limited to the Board’s record in any event.
• A change in the law is not enough by itself. A change can support tolling, but you still have to show diligence, including during the years before the change. File promptly once you learn of it.
• Watch the 30-day court deadline. A petition for review must be filed within 30 days of the final order. If the Board denies your motion, assume the same 30 days applies to that decision and confirm it right away.
• Check where your case will be heard. The tolling rules were developed circuit by circuit, and Lugo-Resendez was a Fifth Circuit decision. The court is the one covering the place where the immigration judge finished your case, even if you have moved or been removed. If that was California, Ninth Circuit law governs.