A Conviction Was Vacated: Build the Immigration Reopening and Diligence Timeline

After a state court vacates a conviction connected to a removal order, collect both the state-court record and the immigration filing history. A reopening request may need to explain why the ordinary deadline can be tolled and what you did to pursue relief. The order’s date matters, but so do the earlier efforts, information available and actions afterward.

In Avila-Morales, memorandum at 2–3, the Ninth Circuit found reasonable diligence, identified the August 23, 2019 vacatur as vital information, and held the motion filed within 90 days of that event timely through equitable tolling. The court returned the motion’s merits to the BIA. Its reasoning helps organize a diligence account without converting the result into a rule for every vacatur.

Start with the immigration order and actual motion history

Obtain the removal decision, BIA decisions, earlier motions and filing receipts. Identify which order is final and which tribunal issued the decision to be reopened. 8 U.S.C. section 1229a(c)(7) generally provides one motion to reopen and a 90-day period from entry of a final administrative removal order, subject to specified exceptions. Counsel must identify the applicable rule and any exception or tolling theory.

Keep the ordinary deadline calculation separate from the factual explanation offered for tolling. That separation makes clear whether the dispute concerns the original trigger, an applicable exception or circumstances preventing timely action.

Identify what changed and when it became known

Preserve the signed vacatur order, docket, motion and relevant transcript or reasons. Record the order date, when counsel and the applicant learned of it, when a copy became available and what happened next. Those events can differ. State the actual dates and sources rather than selecting a later receipt date simply because it produces a preferable calculation.

The Avila-Morales court treated the vacatur date itself as receipt of the vital information on its record. It did not identify a later mailed-copy date. Avila-Morales, memorandum at 3. If another file contains a gap between the order and knowledge of it, explain the evidence and obtain advice about its legal significance.

Explain the efforts and obstacles across the relevant period

The memorandum draws on Avagyan v. Holder, 646 F.3d 672, 678–679 (9th Cir. 2011): When a reasonable person would suspect the relevant error, what reasonable investigative or remedial steps were taken, and when vital information was obtained. It also quotes Hernandez-Ortiz v. Garland, 32 F.4th 794, 801 (9th Cir. 2022), on an extraordinary circumstance preventing timely filing and due diligence. Avila-Morales, memorandum at 1–2.

Use correspondence, record requests, counsel contacts, state filings and other genuine records to explain the chronology. If there was inactivity, identify the reason candidly. A declaration should explain the steps actually taken and the obstacles, not manufacture continuous activity that the documents do not show.

Distinguish reasonable action from futile filings

The BIA faulted Avila-Morales for not pursuing relief before a legal avenue became available. The court rejected a demand for futile relief and evaluated the evidence and circumstances together. It required reasonable, rather than maximum possible, diligence. Avila-Morales, memorandum at 2–3.

For your own file, identify the specific avenue that became available and the source supporting that conclusion. The argument should explain why an earlier step would have been futile in the actual circumstances, rather than treating every unsuccessful or inconvenient option as legally futile.

Prepare the merits question as well as the timing explanation

The state order, the immigration consequences of that order and the requested reopening are distinct parts of the review. In the case, the court decided tolling and remanded the merits of the motion. Bring the conviction and vacatur records and the removal decision so counsel can evaluate both timing and the substantive basis for relief.

Our analysis of Goulart addresses an unexplained diligence gap after a change in law in a reconsideration case. This page addresses a different factual task: Connecting a state-court vacatur, the vital-information date and documented action to a reopening request.