Guerrero-Lasprilla v. Barr, Att'y Gen.

Whether a request for equitable tolling by a person subject to the criminal alien bar is a factual determination such that judicial review is precluded by 8 U.S.C. §1252(a)(2)(C) or a legal determination such that it is reviewable under §1252(a)(2)(D) as a question of law.

Petitioners were admitted to the United States as lawful residents and subsequently underwent removal proceedings following criminal convictions. Both subsequently filed motions to reopen. The deadline for filing statutory motions to reopen is subject to equitable tolling, a point on which all the courts of appeals agree.Mata v. Lynch, 135 S. Ct. 2150 (2015).  However, they are split on whether review of a denial of a request for equitable tolling by someone subject to the criminal alien bar, 8 U.S.C. §1252(a)(2)(C), is a factual or legal determination. Petitioners’ requests for equitable tolling were denied by the Fifth Circuit. Generally, the Fourth and Fifth Circuits bar criminal aliens from judicial review of such requests under the criminal alien bar, holding that equitable tolling is a factual determination and thus unreviewable under §1252(a)(2)(D). The Ninth Circuit holds that equitable tolling is a question of both law and fact and that it is reviewable under §1252(a)(2)(D). Other circuits are also split on this issue, although their opinions thus far have been unpublished. Petitioners argue that the issue is one of current and significant conflict, which affects all citizens’ statutory right to file motions to reopen and for courts to be able to “retain their jurisdiction to review” such motions. Petitioners claim this case is the “ideal vehicle” for resolving this issue.