Luntungan: Unclear Whether Equitable Tolling Allows Multiple Motions To Reopen

Filed 06/05/06, No. 05-2397
Luntungan v. Gonzales
http://www.ca3.uscourts.gov/opinarch/052397p.pdf
Precedential

If you want to make more than one motion to reopen an in absentia order of removal (an order entered because the respondent did not show up in court in a case that started after April 1997), then you should try arguing that equitable tolling should allow more than one motion to reopen. One theory for trying to say the numerical limit should be equitably tolled is that every prior motion to reopen was by ineffective counsel. (The BIA believes that a motion based on ineffective counsel satisfy the three-prong requirements in a case called Lozada.)

The Third Circuit flagged the issue of whether equitable tolling allows more than one motion to reopen, but did not decide the issue. The reason is that the respondent in this case made two earlier motions to reopen and did not claim in his third motion to reopen that both prior motions were made by ineffective counsel -- he only argued that the first motion was made by ineffective counsel. The Third Circuit ruled that the issue of whether equitable tolling applied is irrelevant to deciding the case -- even if equitable tolling did excuse the first filing due to ineffective counsel, the respondent was barred from filing more than one motion to reopen and he did not complain about his second motion to reopen. Therefore, there is no dispute that the new (third) motion to reopen must be rejected.