Sua sponte reopening/equitable tolling due to vacatur of conviction

Lisboa v. Holder, No. 12-4237 (6th Cir. Jun. 25, 2014) (unpublished)

Lisboa was removed based on convictions for assault and domestic violence. As part of the plea, he agreed to give up his green card and leave the U.S. Before he could comply, he was detained, ordered removed, and removed.

Following his removal, he successfully challenged his conviction and it was set aside due to a defect in the underlying proceeding. Lisboa then filed a motion to reopen, which the BIA first denied based on the departure bar. After this office successfully challenged the departure bar in the Pruidze case, the 6th Circuit remanded to the BIA. This time, the BIA denied based on a time bar.

The court declined to reach the issue of sua sponte reopening. Instead, it remanded for the BIA to consider an equitable tolling argument.

Interestingly, in this case an unnamed former ICE trial attorney and Lisboa's ex-wife teamed up to file an amicus brief at the BIA urging that his motion be denied.