The Second Circuit has remanded an untimely motion to reopen based on both post-conviction relief and a change in case law related to deportability. The “BIA abused its discretion in finding that Pinilla failed to demonstrate due diligence in pursuing his motion to reopen. In its decision, the BIA explained only that Pinilla was not entitled to tolling because he waited ‘approximately 2 years’ after New York revised its marijuana laws to file his motion. The agency’s stated justification is not the ‘minimum level of analysis’ that we require ‘if judicial review is to be meaningful.’ ‘[T]he test for equitable tolling, both generally and in the immigration context, is not the length of the delay in filing the [motion]; it is whether the claimant could reasonably have been expected to have filed earlier.’”
The full text of Pinilla Perez v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/5b8de542-619b-4223-b191-466cb013720f/9/doc/23-6363_opn.pdf