Earlier this week, the First Circuit issued a decision in Wan v. Holder. Wan challenged the denial of a motion to reopen. The Board of Immigration Appeals (Board) denied the motion, in part, because Wan had not exercised the due diligence necessary to toll the 180-day filing deadline for an exceptional circumstances motion to reopen. On appeal to the circuit, Wan challenged this finding, and also asserted that the Board engaged in impermissible fact-finding.
The First Circuit determined that it lacked jurisdiction to determine if the Board had engaged in impermissible fact-finding because Wan had not properly exhausted this argument. Instead, Wan needed to raise this argument in a motion to reconsider before the Board, and thus, give the Board the opportunity to consider the issue. In so holding, the court joined the Fifth and Tenth Circuit's decisions on this issue.
Turning to Wan's request to toll the filing deadline for a motion to reopen, the court noted that whether the doctrine of equitable tolling applied in immigration proceedings remained an open question. It declined to decide the issue, finding that in any event, Wan had not exercised the requisite due diligence to invoke the equitable tolling doctrine.
Interestingly, the court proceeded to issue a decision in this case, despite a motion informing the court of Wan's intention to apply for administrative relief under the newly-announced Deferred Action for Parental Accountability (DAPA) program.
The follow text of the decision can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-1893P-01A.pdf