Background
Tho Duc Huynh was convicted in 1997 under Virginia Code § 18.2-67.4. An immigration judge determined in 2003 that this conviction rendered him removable both as an “aggravated felony” and as a “crime involving moral turpitude.” The Board of Immigration Appeals affirmed in 2004, finalizing his removal order. Because no repatriation agreement existed between the United States and Vietnam at that time, the government did not immediately remove him. Huynh remained in the United States for the next two decades, during which he operated a business and maintained family ties.
In January 2025, the government detained Huynh with plans to remove him to Vietnam. Forty-nine days later, on March 21, 2025, he filed a motion to reopen his removal proceedings, arguing that two intervening changes in law meant his conviction no longer rendered him removable: the Supreme Court’s 2018 decision in Sessions v. Dimaya (affecting the “aggravated felony” ground) and Virginia’s appellate court decision in Belcher v. Commonwealth (2022), establishing his conviction lacked a one-year sentence and thus could not support removability as a crime of moral turpitude. Huynh asserted the 90-day filing deadline for such motions should be equitably tolled. The Board denied both the motion to reopen and Huynh’s alternative request for sua sponte reopening.
The Court’s Holding
The Fourth Circuit affirmed the Board’s denial of the motion to reopen. Applying de novo review to the equitable tolling question, the court acknowledged that intervening judicial decisions can constitute extraordinary circumstances warranting tolling. However, equitable tolling also requires a showing of reasonable diligence in pursuing one’s rights. Even measuring diligence from Belcher’s 2022 decision (rather than Dimaya’s 2018 decision), Huynh waited nearly two-and-a-half years before filing his motion to reopen after Belcher was decided. The court distinguished Huynh’s case from Williams v. Garland, where tolling was granted: Williams acted within one month of learning of his rights and was in Jamaica with no internet access and no ability to return to the United States, whereas Huynh was in the United States the entire time, operating a business with family and community support. Huynh provided no explanation for actions he took between Belcher’s decision and his detention, beyond renewing his work permit and reporting to ICE as required. The court concluded this insufficient to establish the “diligence” necessary for equitable tolling.
On Huynh’s alternative request for sua sponte reopening, the court determined any potential legal error would be harmless. Huynh’s argument relied on the Belcher decision, but after briefing was complete, the Fourth Circuit decided Perdomo Ulloa v. Bondi (2026), rejecting Belcher’s reasoning and holding that a twelve-month maximum sentence satisfies the “one year or longer” requirement for moral turpitude crimes. Huynh conceded he remained removable under the moral turpitude provision regardless of whether his conviction qualified as an aggravated felony. Therefore, remand would serve no purpose.
Key Takeaways
- Equitable tolling in immigration removal proceedings requires both extraordinary circumstances beyond a noncitizen’s control and reasonable diligence in pursuing legal rights—intervening case law alone is insufficient.
- Delay in filing a motion to reopen, measured in years rather than months, strongly weighs against a finding of diligence, especially where the noncitizen was present in the United States and provides no explanation for inaction.
- A noncitizen’s financial stake in remaining (business, family, community ties) does not overcome failure to diligently pursue available legal remedies when potentially life-altering changes in law occur.
- Harmless error doctrine can foreclose review of sua sponte reopening denials when intervening precedent establishes the noncitizen’s removability on an independent ground.
Why It Matters
This decision establishes a demanding standard for equitable tolling in immigration proceedings, making clear that changes in case law—even favorable ones—create an urgent deadline for action. For practitioners, the case signals that intervening precedent is only one component of the equitable tolling analysis; clients must act promptly after becoming aware of potentially game-changing legal developments or risk losing the opportunity to reopen. The court’s rejection of Huynh’s “long-held belief” that the executive would be unwilling to remove him underscores that lack of knowledge of the law and reliance on non-enforcement carry no legal weight.
The timing of appellate decisions also matters strategically. Huynh’s case illustrates how a case may become moot or harmless during the briefing process when new precedent is handed down, preventing remand even if the Board made an error. Immigration practitioners must remain alert not only to changes in substantive law but to how subsequent court decisions may affect pending appellate challenges to removal orders.