United States Court of Appeals
For the First Circuit
No. 24-2042
DEMAN KIM,
Petitioner,
v.
TODD BLANCHE,* Acting Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Aframe, Lipez, and Dunlap,
Circuit Judges.
Randy Olen for petitioner.
Sunah Lee, Senior Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom Brett A. Shumate, Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, were on brief, for
respondent.
July 30, 2026
* Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Acting Attorney General Todd Blanche is automatically substituted for former Attorney General Pamela J. Bondi as
Respondent.
AFRAME, Circuit Judge. Deman Kim petitions from the
Board of Immigration Appeals' (the "BIA") denial of his second
motion to reopen his removal proceedings. We grant the petition
because the BIA misunderstood the authority under which Kim sought
reopening and overlooked certain critical evidence.
I.
In 1982, when Kim was four years old, he arrived in the
United States from Cambodia. Two years later, he received lawful
permanent resident status. In 1996, a Rhode Island Superior Court
convicted Kim of a controlled-substance distribution offense based
on Kim's plea of nolo contendere. That conviction soon led to an
order to show cause charging Kim with deportability under
then-existing provisions of immigration law. Deportation
proceedings began in October 1996.
In 1998, an immigration judge ("IJ") concluded that Kim
was deportable based on his drug conviction and denied his other
requests for relief. Kim appealed to the BIA, which, in January
1999, dismissed the appeal because Kim had presented no reason to
disturb the IJ's ruling that he was deportable. It does not appear
that Kim petitioned this Court for review of the BIA's ruling.
That is how matters stood for over twenty years, during
which time Kim remained in the United States. Then, in 2020, a
Rhode Island prosecutor dismissed Kim's criminal conviction under
Rhode Island Rule of Criminal Procedure 48(a) based on the
- 2 -"interests of justice." The dismissal stated that Kim, who
committed the offense "when he was [eighteen] years old," had
"completed his sentence without incident"; has "no subsequent or
previous felony contacts"; "is employed and a taxpayer"; and "has
three children whom he financially supports."
In May 2021, Kim filed his first motion to reopen his
removal proceedings with the BIA. Kim relied on the dismissal of
his criminal charge, arguing that because he no longer had a
criminal history, there was no extant reason to remove him.
In February 2023, the BIA denied this first motion to
reopen on two grounds. First, it ruled that the motion was
untimely because Kim neither (1) showed a statutory or regulatory
exception to the time limitation governing his motion nor
(2) demonstrated that he was entitled to equitable tolling.
Second, the BIA concluded that, even if the motion were timely, it
would fail on the merits because the record did not show that Kim's
conviction had been dismissed based on "substantive or procedural
defects" in his criminal proceedings. It does not appear that Kim
sought this Court's review of that order either.
Instead, Kim returned to the Rhode Island Superior
Court. On September 13, 2023, the Superior Court issued the
following consent order, vacating Kim's sentence under Rhode
Island Rule of Criminal Procedure 11:
- 3 -This matter was heard and discussed in
chambers, and after due deliberation, and in
consideration of the parties' agreement, it is
hereby ORDERED[,] JUDGED [,] AND DECREED that
Petitioner's plea and sentence in the matters
of State of Rhode Island v. Deman[] Kim,
P2-1996-0336A and State of Rhode Island v.
Deman[] Kim, P2-1996-0816A is hereby vacated
pursuant to the Amended Application in the
above-captioned Petition for Post-Conviction
Relief, specifically the grounds set forth
therein under Super. Ct. R. Crim. P. 11, which
under Rhode Island law implies due process.
Armed with this order, in April 2024, Kim filed with the
BIA a second motion to reopen his removal hearing. The BIA again
declined to reopen Kim's hearing. It ruled that the motion was
"time and number barred" and that Kim was not entitled to equitable
tolling because he failed to demonstrate due diligence between
when the Superior Court issued its order and when he filed his
second motion to reopen.
In addition, the BIA again ruled that Kim had not met
his burden to show that his conviction was vacated based on "a
procedural or substantive defect in the underlying proceedings"
rather than for reasons "'unrelated to the merits' such as
'rehabilitation or immigration hardships.'" (quoting Matter of
Thomas & Thompson, 27 I. & N. Dec. 674, 675 (A.G. 2019)). The BIA
premised this conclusion on its view that the Superior Court had
neither adequately described the Rule 11 violation nor
"definitively state[d] that there was a due process violation."
It instead viewed the Superior Court's vacatur order as being
- 4 -issued on the same equitable grounds that prompted the prosecutor
to dismiss Kim's conviction based on "family ties and [Kim's] age
at the time he committed the offense."
Kim timely petitioned this Court for review of his second
motion to reopen.
II.
There are two types of motions that a noncitizen may
file to reopen their removal case before the BIA. Hodzic v. Bondi,
171 F.4th 44, 50 (1st Cir. 2026). The first is a motion to reopen
authorized by statute. See 8 U.S.C. § 1229a(c)(7). The statute
generally limits a noncitizen to filing one such motion within
ninety days of the entry of the final administrative order of
removal. Id. § 1229a(c)(7)(A), (C)(i). Under certain
circumstances, we have assumed (though never actually decided)
that this ninety-day deadline is subject to equitable tolling.
See, e.g., Garcia v. Bondi, 135 F.4th 1, 5 & n.2 (1st Cir. 2025)
(assuming equitable tolling applies where both parties make the
same assumption); Quiroa-Motta v. Garland, 993 F.3d 25, 27 & n.1
(1st Cir. 2021) (assuming equitable tolling applies and then
determining that the noncitizen has not demonstrated entitlement
to such relief). Such circumstances require a showing "'(1) that
[the noncitizen] has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way' of
filing by the deadline." Quiroa-Motta, 993 F.3d at 27 (quoting
- 5 -Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010) (per curiam)).
Equitable tolling is "rare[ly]" granted and requires the
noncitizen to show that he "diligently pursued his rights for the
entire period he seeks tolled." Id. (quoting Neves, 613 F.3d at
36).
The second type of motion to reopen is a motion to reopen
sua sponte.1 Such a motion is authorized by regulation, 8 C.F.R.
§ 1003.2(a), and is available for the noncitizen to file "[i]f a
statutory motion to reopen is untimely or number-barred." Hodzic,
171 F.4th at 50. Under the regulation, the BIA may "at any time"
reopen a case. 8 C.F.R. § 1003.2(a). Doing so, however, is "an
extraordinary remedy reserved for truly exceptional situations."
Hodzic, 171 F.4th at 50 (quoting Phimmady v. Bondi, 128 F.4th 18,
22 (1st Cir. 2025)). And even where the BIA finds an exceptional
situation, it is not required to grant sua sponte reopening. Id.
at 51.
While federal courts of appeals may review orders
denying statutory reopening, they generally may not review orders
denying sua sponte reopening. Hodzic, 171 F.4th at 51. There is,
however, an exception: Federal appellate courts may review the
1 "Sua sponte" typically describes a situation where an
adjudicative body acts on its own initiative. But "[t]his nomenclature is somewhat misleading [in this context] because
usually the noncitizen must request that the BIA reopen
proceedings." Phimmady v. Bondi, 128 F.4th 18, 22 n.1 (1st Cir. 2025).
- 6 -BIA's denial of a motion to reopen sua sponte where there is a
"colorable" claim that the denial was based on legal or
constitutional error. Id. (quoting Gyamfi v. Whitaker, 913 F.3d
168, 177 (1st Cir. 2019)); see 8 U.S.C. § 1252(a)(2)(D). "When
the BIA's denial of a motion to reopen rests on a legal error, it
is appropriate to 'remand to the BIA so it may exercise its
authority against the correct legal background.'" Thompson v.
Barr, 959 F.3d 476, 483 (1st Cir. 2020) (quoting Bonilla v. Lynch,
840 F.3d 575, 588 (9th Cir. 2016)).
It is beyond dispute that Kim sought to invoke the BIA's
sua sponte authority when he filed his second motion to reopen in
April 2024. Kim specifically requested that this motion be
"considered as a Motion to Sua Sponte Reopen." That, of course,
was the correct approach given that Kim had already filed a
statutory motion to reopen in 2021, and that he filed it long after
the ninety-day deadline had passed. See Hodzic, 171 F.4th at 50
("If a statutory motion to reopen is untimely . . ., a petitioner
may request that the BIA reopen the proceedings sua sponte.").
Accordingly, we consider Kim's petition only insofar as it raises
a colorable claim of legal or constitutional error. See id. at
51.
Kim identifies two such errors. First, he contends that
the BIA failed to appreciate that he filed his motion to reopen
under its sua sponte authority rather than under the statute.
- 7 -Second, he argues that on the merits of his claim, the BIA erred
by overlooking evidence relevant to its conclusion that there was
no proof of a defect in Kim's underlying criminal proceeding. See
Trejo v. Bondi, 152 F.4th 248, 255 (1st Cir. 2025) ("A failure to
consider key evidence is an error of law . . . ."). We agree on
both points.
On the first issue, it is evident from the BIA's order
that it misunderstood Kim to be seeking statutory reopening. The
second paragraph of the BIA's order cites the statutory provision,
8 U.S.C. § 1229a(c)(7)(C)(i), allowing motions to reopen, and it
describes the ninety-day limitation imposed by the statute. The
order then rejects Kim's motion by stating that it "is both time
and number barred," concepts that apply to statutory reopening.
Moreover, the BIA's order invokes equitable tolling,
which further suggests that the BIA thought that Kim's motion was
a request to reopen under the statute. Equitable tolling allows
relief from an otherwise applicable time bar. Irwin v. Dep't of
Veterans Affs., 498 U.S. 89, 95-96 (1990). But sua sponte motions
to reopen are not subject to any such bar, as the BIA may reopen
"at any time." Thompson, 959 F.3d at 480 (quoting 8 C.F.R.
§ 1003.2(a)). Thus, equitable tolling has no role in the
adjudication of sua sponte motions to reopen. See Bolieiro v.
Holder, 731 F.3d 32, 39 (1st Cir. 2013) ("[B]y contending that
equitable tolling should excuse the untimeliness of her motion,
- 8 -[the noncitizen's] argument is directed at her statutory right to
file a motion to reopen, not the agency's sua sponte authority to
reopen proceedings.").2
One may ask whether this error makes any difference.
After all, the BIA may deny a sua sponte motion to reopen on the
ground that a noncitizen failed to show due diligence in pursuing
their claim. Phimmady, 128 F.4th at 24-25. And here, the BIA
grounded its decision to deny equitable tolling on Kim's lack of
due diligence. But the BIA's characterization of Kim's error does,
in fact, matter. Equitable tolling requires the party seeking
relief to prove (1) due diligence and (2) the existence of an
extraordinary circumstance preventing a timely filing. Holland v.
Florida, 560 U.S. 631, 649 (2010). These are necessary elements;
the moving party's failure to prove one of them defeats the claim
for equitable tolling and requires the application of an otherwise
applicable time bar. See Menominee Indian Tribe of Wis. v. United
2 As a general matter, the BIA need not explain why it
declines, in any given case, to grant sua sponte reopening. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 38 n.7 (1st Cir. 2006)
("There is no requirement that the BIA . . . explain its reasoning on a motion to reopen or reconsider."). Accordingly, the BIA's
failure to use the phrase "sua sponte" does not, by itself,
indicate that the BIA's decision here was erroneous. Reading the order as a whole, however, the BIA's exclusive focus on legal
standards related to statutory reopening persuades us that the BIA committed legal error by misconstruing the basis for Kim's motion. See Thompson v. Barr, 959 F.3d 476, 483, 490 (1st Cir. 2020)
(reviewing a denial of motion to reopen sua sponte for "colorable legal . . . challenges").
- 9 -States, 577 U.S. 250, 255-57 (2016); Kwoka v. Enter. Rent-A-Car
Co. of Bos., 141 F.4th 10, 17 (1st Cir. 2025). Here, were Kim to
have filed a statutory motion to reopen, the BIA's finding that
the motion was untimely and that Kim lacked due diligence for his
filing delay would mean that his claim would fail as a matter of
law.
But denial of Kim's motion on timing grounds is not
preordained if the BIA had properly understood Kim to have invoked
its sua sponte authority for reopening. The operative regulation
allows the BIA to grant a sua sponte motion to reopen "at any
time." 8 C.F.R. § 1003.2(a). And the BIA has "unfettered
discretion" to grant such motions. Matais v. Sessions, 871 F.3d
65, 68 (1st Cir. 2017) (quoting Luis v. INS, 196 F.3d 36, 40 (1st
Cir. 1999), superseded in part by statute, REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 302, as recognized in Thompson, 959
F.3d at 481). Based on this broad authority, the BIA could grant
Kim's sua sponte motion to reopen even though it thought that he
had not acted with due diligence. Thus, the BIA's misunderstanding
about the legal basis for Kim's motion to reopen prevented the BIA
from appreciating the full scope of its discretion to reopen Kim's
case.
That brings us to Kim's second claim of error. Recall
that the BIA also denied Kim's motion to reopen on the merits.
Specifically, it concluded that Kim had not "met his burden to
- 10 -establish that his 1996 conviction was vacated based on a
substantive or procedural defect rather than reasons unrelated to
the merits of the underlying criminal proceedings."
In reaching this conclusion, the BIA erred by
disregarding the Superior Court's order vacating Kim's 1996
conviction on the basis that the Superior Court did not adequately
explain itself. That order states that the court vacated Kim's
conviction, including his plea and sentence, "under Super. Ct. R.
Crim. P. 11." Rhode Island Superior Court Rule of Criminal
Procedure 11 prevents a court from accepting a guilty plea or a
plea of nolo contendere "without first addressing the defendant
personally and determining that the plea is made voluntarily with
[an] understanding of the nature of the charge and the consequences
of the plea." A plea "must be set aside" when it does not
"conform[]" to Rule 11's requirements, even if that plea has been
accepted. State v. Frazar, 822 A.2d 931, 935 (R.I. 2003) (quoting
Reporter's Notes to R.I. Super. Ct. R. Crim. P. 11).
The Superior Court order, which was in the record
before the BIA, provides little explanation for its ruling.
Nevertheless, it does hold that the Superior Court vacated Kim's
1996 conviction because of the particular Rule 11 violation that
Kim set out in his Petition for Post Conviction Relief, namely,
that "the plea colloquy did not comply with Rule 11." Thus, the
order states on its face that the vacatur was prompted by a
- 11 -violation of a procedural rule, i.e., a procedural defect, related
to Kim's plea colloquy. The BIA therefore legally erred when it
concluded that Kim failed to show that the vacatur of his
conviction was based on a defect in his criminal proceeding.3
III.
The petition for review is granted. The case is remanded
to the BIA for further proceedings.
So ordered.
3 Two loose ends warrant comment. First, although the BIA's order criticizes the Superior Court for not providing more detail about the nature of the Rule 11 violation, the government could not identify, when asked at oral argument, any way in which a Rule 11 violation would occur that would not constitute a substantive or procedural error in Kim's underlying criminal case. Moreover, the Superior Court order, citing Frazar, 822 A.2d at 935, explains that a violation of Rule 11 implies a violation of due process under the United States Constitution. That explanation was sufficient to demonstrate a procedural defect to the BIA, which considers three factors in making that evaluation, namely: "(1) the law under which the court issued its order," here, Rhode Island law and Rule 11 in particular, "(2) the language of the court's order itself, and
(3) the reasons provided by the noncitizen in the request for postconviction relief," including Kim's assertion that "the plea colloquy did not comply with Rule 11." Ballinas-Lucero v. Garland, 44 F.4th 1169, 1179 (9th Cir. 2022). It is not the BIA's task to inquire into possible other, unstated rationales for the state court's order.
Second, the BIA's order relies on the prosecutor's initial
dismissal of Kim's conviction based on equitable factors as a ground for denying Kim's second motion to reopen. This is a non-sequitur, as Kim's second motion was premised on the Superior Court's order vacating Kim's conviction for violating Rule 11. The prosecutor and the state court possess and exercise different authorities. That the prosecutor employed its authority to dismiss Kim's case for equitable reasons under Rule 48(a) does not undermine or preclude the Superior Court's later determination that Kim's conviction
suffered from a procedural defect in the plea colloquy requiring vacatur under Rule 11.
- 12 -