The First Circuit has addressed whether equitable tolling is appropriate for a motion to reopen to seek adjustment of status. The court noted that “the party seeking to toll the deadline bears the burden of showing: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.’” The court rejected the idea that he filing of an I-130 after the 90-day motion to reopen deadline, on its own, qualifies as an extraordinary circumstance. Similarly, the court noted that any hardship to the petitioner’s children was not substantially different than hardship during the 90-day filing period for a motion to reopen. Additionally,, the court noted that the petitioner waited 16 months after the approval of her I-130 petition to file the motion, undermining any argument that she had acted with diligence. Finally, the court determined that the petitioner had not raised any colorable constitutional or legal arguments that would allow it to review the BIA’s refusal to exercise its sua sponte authority.

The full text of Gyamfi v. Whitaker can be found here: