Third Circuit says motion to reopen after 90 days can be equitably tolled

Have an in absentia deportation order because an attorney or notario defrauded you into thinking everything was taken care of? The government has frequently taken the position that unless you ask to reopen your deportation order within 180 days, you are out of luck.

Many immigration advocates argued that was an unfair rule. If your prior attorney or notario kept you in the dark (and you can prove it), there should be a way to reopen your deportation order even if over 180 days passed. After all, many devious people can keep others in the dark for over 180 days.

In a decision filed March 30, 2005 titled Borges v. Gonzales, the Third Circuit (which covers New Jersey) made a ruling on this issue. Please read the opinion carefully for a full understanding of the ruling. Based on a quick review of the case, it seems that if the immigrant can prove he truly was defrauded, that was sincerely the reason he did not show up for his hearing, and the new motion to reopen was filed very soon after discovering the fraud, then in theory there could be a way to reopen the case even if more than 180 days have passed. In legal terms, the 180-day time limit can be equitably tolled on account of fraud (if proven).

If I am reading this opinion correctly, the decision makes perfect sense. Why not listen to the case of an immigrant who can definitively prove that the only reason he failed to show up for his hearing was that his attorney or notario defrauded him for an extended period of time?