FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLAUDE STEPHEN BENT, 

Petitioner,

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 22-1910 

Agency No.

037-050-176 

ORDER AND 

AMENDED 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 17, 2023

San Francisco, California

Filed August 15, 2024

Amended September 6, 2024

Before: Danielle J. Forrest and Salvador Mendoza, Jr., 

Circuit Judges, and Solomon Oliver, Jr.,

* District Judge.

* The Honorable Solomon Oliver, Jr., Senior United States District Judge 

for the Northern District of Ohio, sitting by designation.
2 BENT V. GARLAND

Order;

Opinion by Judge Mendoza; 

Dissent by Judge Forrest 

SUMMARY**

Immigration 

The panel filed (1) an order granting a petition for panel 

rehearing and amending the majority opinion filed August 

15, 2024; and (2) an amended opinion granting in part 

petitioner Claude Stephen Bent’s petition for review of the 

Board of Immigration Appeals’ denial of his motion to 

reopen removal proceedings, and remanding for the BIA to 

adjudicate petitioner’s motion to reopen under the correct 

legal standards.

Petitioner moved to reopen his removal proceedings 

after a California state court vacated his felony conviction 

under the authority of Cal. Penal Code § 1473.7(a)(1) 

because the conviction was premised on an involuntary 

guilty plea in violation of his Fifth Amendment rights. The 

BIA determined that the motion was untimely and not 

subject to equitable tolling, and that petitioner had not 

established prima facie eligibility for relief from removal 

because it viewed § 1473.7(a)(1) as a statute that enables a 

court to vacate a conviction solely to mitigate its collateral 

immigration consequences. 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
BENT V. GARLAND 3

The panel noted that this was the rare case in which both 

parties sought remand for the BIA to reassess its decision 

given the BIA’s mischaracterization of § 1473.7(a)(1) as a 

statute that enables a court to vacate a conviction solely to 

mitigate its collateral immigration consequences. The panel 

held that the request for remand was not frivolous, 

explaining that the BIA plainly erred in construing the 

California statute and the state court’s order, because that 

order had set aside petitioner’s plea as constitutionally 

deficient, not to alleviate any adverse immigration 

consequences. 

The panel additionally held that the BIA misapplied 

equitable tolling precedent in assessing whether petitioner 

diligently pursued his rights. Accordingly, the panel granted 

the petition for review.

Dissenting, Judge Forrest would deny the petition for 

review because petitioner’s motion to reopen was untimely, 

he is not entitled to relief based on a 2021 regulation that 

provides an exception to untimeliness where there have been 

material changes in fact or law, and he is not entitled to 

equitable tolling.

In an unpublished order, the panel severed this petition 

from a pending petition for review of petitioner’s application 

for asylum and related relief and held it in abeyance pending 

resolution of this case on remand.
4 BENT V. GARLAND

COUNSEL

Kari E. Hong (argued), Florence Immigrant and Refugee 

Rights Project, Tucson, Arizona, for Petitioner.

Tim Ramnitz (argued), Senior Litigation Counsel, Shelley 

R. Goad, Assistant Director and Jennifer J. Keeney, 

Assistant Directors; Civil Division Office of Immigration 

Litigation; Brian M. Boynton, Principal Deputy Assistant 

Attorney General; United States Department of Justice, 

Washington, D.C.; for Respondent.

Andrew Wachtenheim, Immigrant Defense Project, New 

York, New York, for Amici Curiae Alberto Gonzalez; 

American Immigration Council, Andrea H. Sloan, Annie 

Garcy, Black Alliance for Just Immigration, Bruce J. 

Einhorn, Carol King, Cecelia Espenoza, Charles Honeyman, 

Dana Marks, Eliza Klein, Former Immigration Judges, 

George Chew, Heartland Alliance’s National Immigrant 

Justice, Holly Cooper, Ilyce Shugall, Immigrant Defense 

Project, Immigrant Justice Idaho, Ira Kurzban, Jeffrey 

Chase, John Richardson, Laura Ramirez, Lory Rosenberg, 

Miriam Hayward, National Immigration Project of the 

National Lawyers Guild, Noel Ferris, Oregon Justice 

Resource Center, Patricia Sheppard, Paul Grussendorf, Paul 

Schmidt, Polly Webber, Rockey Mountain Immigrant 

Advocacy Network, Steven Abrams, Steven Morley and 

Terry Bain, 

Rebecca G. Powell, Horvitz & Levy LLP, Burbank, 

California, for Amici Curiae American Civil Liberties 

Union, California Attorneys for Criminal Justice, California 

Public Defenders Association and Immigrant Legal 

Resource Center.
BENT V. GARLAND 5 

ORDER

The petition for panel rehearing (Dkt. No. 83) is 

GRANTED. The opinion filed August 15, 2024, and 

appearing at --F.4th --, 2024 WL 3819829 (9th Cir. Aug. 15, 

2024) is hereby amended. The amended opinion will be 

filed concurrently with this order. The dissent is unchanged. 

The existing deadline to file a Petition for Rehearing or 

Petition for Rehearing En Banc remains in place. 

OPINION

MENDOZA, Circuit Judge: 

This is a rare case: both the government and Petitioner 

Claude Bent seek remand so that the Board of Immigration 

Appeals (“BIA”) can reassess its decision denying Bent’s 

motion to reopen removal proceedings. Bent moved to 

reopen his removal proceedings after a California court, 

acting under California Penal Code § 1473.7(a)(1), vacated

the conviction that formed the basis of his removal because 

it was premised on an involuntary plea, in violation of Bent’s 

Fifth Amendment rights. Bent argues, and the government 

agrees, that the BIA erred by mischaracterizing 

§ 1473.7(a)(1) as a statute that enables a court to vacate a 

conviction solely to mitigate its collateral immigration 

consequences, i.e., issue a “rehabilitative vacatur.” 

Understandably, both parties ask that we remand so that the 

BIA can correct its mistake, reconsider the impact of the 

§ 1473.7 vacatur, and determine whether Bent diligently 

pursued his rights such that he is entitled to equitable tolling

of the motion-to-reopen deadline. Absent a showing of bad 
6 BENT V. GARLAND

faith or frivolity, we typically grant such remand requests. 

Accordingly, and because the BIA misconstrued the nature 

of Bent’s vacatur and misapplied our equitable-tolling 

precedent, we grant the government’s non-frivolous request 

for remand so that the BIA may adjudicate Bent’s motion to 

reopen under the correct legal standards.

I. Background

Claude Bent, a native and citizen of Jamaica, has been a 

lawful permanent resident in the United States since 1980. 

On September 6, 2006, he pleaded no contest to two felony

charges in California state court. During his plea hearing,

the judge asked Bent if he understood “all the possible 

consequences” of his plea and Bent stated that he did. The 

judge also listed many of those consequences, including the 

term of imprisonment, parole, fees, and California’s three 

strikes law, but he did not mention whether Bent’s plea 

would have immigration consequences. The state court

accepted Bent’s pleas, found Bent guilty on both counts, and 

sentenced him to roughly thirteen years’ imprisonment. 

Immediately after Bent’s release from prison in July 

2016, the Department of Homeland Security (“DHS”)

detained him. Soon after, DHS served Bent with a Notice to 

Appear (“NTA”), charging him as “subject to removal from 

the United States pursuant to . . . Section 237(a)(2)(A)(iii) of 

the Immigration and Nationality Act” because he had been

“convicted of an aggravated felony.” 

Thus began Bent’s long—and ongoing—journey 

through removal proceedings.

1 On December 23, 2016,

1 This matter’s procedural history is long and not entirely relevant to the 

disposition of the issues before us. We keep our recitation of the 
BENT V. GARLAND 7

Bent applied for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). In April 

2017, an immigration judge (“IJ”) denied Bent’s petition for 

relief and ordered him removed to Jamaica. Bent, 

proceeding pro se, then appealed to the BIA, which affirmed 

the IJ’s decision. In September 2017, Bent timely petitioned 

for review of the BIA’s decision. Bent v. Barr, 775 F. App’x 

281 (9th Cir. 2019). We granted the petition and remanded 

to the BIA. Id. at 283. The BIA then remanded the case 

back to the IJ. 

The IJ again ordered Bent removed. The IJ also denied 

Bent’s application for asylum and withholding of removal 

because he had been convicted of a particularly serious 

crime, and denied his CAT claim because he did not show a 

risk of future torture. Bent again appealed to the BIA, which 

dismissed the appeal on December 22, 2021. On January 18, 

2022, Bent timely petitioned for review of the BIA’s 

decision before this court. That petition, Petition No. 22-

112, is pending before us today.

Shortly after filing Petition No. 22-112, Bent moved to 

vacate his 2006 conviction in California state court. A 

hearing on the motion was calendared for May 17, 2022, and 

the state court granted the motion on June 7, 2022. The court

held:

The no contest plea to Penal Code section 

664/187(a), attempted murder, entered 

September 6, 2006, is set aside in its entirety 

on the ground [that Bent] was unable to 

meaningfully understand and defend against 

procedural background brief, and focus on those aspects germane to our 

decision. 
8 BENT V. GARLAND

the immigration consequences of his plea, 

resulting in an involuntary plea in violation 

of the Fifth Amendment [to] the United 

States Constitution, and is thus legally invalid 

pursuant to Penal Code section 1473.7(a)(1).

On July 8, Bent moved to reopen his removal proceedings

before the BIA, arguing that the sole basis for his removal—

his 2006 conviction—had been vacated as unconstitutional, 

and that he was therefore no longer removable. The BIA 

denied Bent’s motion to reopen on November 17, 2022. The 

BIA determined that Bent’s motion was untimely and not 

subject to equitable tolling because Bent did not demonstrate 

that he diligently pursued his rights beginning in 2006, when

he was convicted. 

The BIA also found that Bent had not established prima 

facie eligibility for relief from removal. The BIA noted that 

so-called “rehabilitative” vacaturs that are granted “to

prevent immigration hardships” do “not affect [a] 

conviction’s validity for immigration purposes.” The BIA 

asserted that California Penal Code § 1473.7(a)(1)

“explicitly allows for vacaturs of state convictions solely to 

alleviate immigration consequences.” The BIA

acknowledged the state court’s finding that Bent “was 

unable to meaningfully understand and defend against the 

immigration consequences of his plea,” but viewed that 

finding as “contradicted by the transcript of the plea 

colloquy.” 
BENT V. GARLAND 9

Bent timely petitioned for review of the BIA’s denial of 

his motion to reopen. That petition, Petition No. 22-1910, is 

also presently before us.

2

II. Standard of Review

We review the denial of a motion to reopen for abuse of 

discretion. Zhao v. Holder, 728 F.3d 1144, 1147 (9th Cir. 

2013). “The BIA abuses its discretion when it acts 

‘arbitrarily, irrationally, or contrary to the law,’ and ‘when it 

fails to provide a reasoned explanation for its actions.’” 

Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 

2014) (quoting Movsisian v. Ashcroft, 395 F.3d 1095, 1098 

(9th Cir. 2005)). 

III. Discussion

Bent contends that the BIA erred in denying his motion 

to reopen by (1) mischaracterizing § 1473.7(a)(1), and 

(2) applying an incorrect legal framework to assess whether 

he exercised due diligence for purposes of equitable tolling. 

He urges “remand for the BIA to assess the evidence under 

the proper legal standards.” The government largely agrees. 

The government concedes that the BIA erred in interpreting 

§ 1473.7(a)(1), and it too asks us to remand on that basis. As 

counsel for the government stated at oral argument: “The 

reason why we said the Board erred in this regard is because 

the Board decision states that, explicitly on its face, 

[§ 1473.7(a)(1)] is for rehabilitative vacaturs—and we agree 

that’s not right; that’s incorrect.” The government also 

concedes that the Board can, and should, reassess diligence

2 On November 30, 2022, we granted Bent’s unopposed motion to 

consolidate Petition No. 22-112 and Petition No. 22-1910. By separate 

order issued on this day, we sever Petition No. 22-112 and hold it in 

abeyance pending the BIA’s decision on remand on Petition No. 22-

1910.
10 BENT V. GARLAND

on remand. As counsel for the government stated at oral 

argument: “[I]f the Board finds this to be a substantive 

vacatur, it’s pretty rare that the Board will nonetheless find 

that someone hasn’t acted diligent in pursuing that vacatur, 

so, we think the questions are wrapped up together.” We 

agree with the government. Where, as here, a federal agency 

requests that a case be remanded to the agency, “[c]ourts 

generally grant [the] agency’s request for voluntary remand 

unless the request is frivolous or made in bad faith.” Nat. 

Res. Def. Council v. EPA, 38 F.4th 34, 60 (9th Cir. 2022) 

(citing Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 992 

(9th Cir. 2012) (per curiam)); see also Ethyl Corp. v. 

Browner, 989 F.2d 522, 524 (D.C. Cir. 1993) (“We 

commonly grant [agency remand] motions, preferring to 

allow agencies to cure their own mistakes rather than 

wasting the courts’ and the parties’ resources reviewing a 

record that both sides acknowledge to be incorrect or 

incomplete.”). In cases that come before us on petition for 

review of a BIA decision, we routinely grant remand where 

both parties request it, regardless of whether the government 

“conced[es] any error in the underlying proceedings.” Li v. 

Keisler, 505 F.3d 913, 916 (9th Cir. 2007); see, e.g., Mero v. 

Barr, 957 F.3d 1021, 1024 (9th Cir. 2020) (“Because the 

government’s voluntary request for remand is neither 

frivolous nor made in bad faith, we grant the request.”)

(citing Cal. Cmtys. Against Toxics, 688 F.3d at 992); Alanniz 

v. Barr, 924 F.3d 1061, 1069 (9th Cir. 2019) (“[W]e accede 

to the parties’ request and remand this issue to the agency.”).

In light of the government’s request for remand to the 

BIA, the question before us is whether “the request is 

frivolous or made in bad faith.” Nat. Res. Def. Council, 38 

F.4th at 60 (citation omitted); Mero, 957 F.3d at 1024. There 

is no indication of bad faith in this case, and no party has 
BENT V. GARLAND 11

suggested otherwise. And we conclude that the 

government’s request for remand is not frivolous, given the 

BIA’s error in mischaracterizing § 1473.7(a)(1) and 

misapplication of our equitable-tolling precedent.

A. California Penal Code § 1473.7(a)(1)

Remand is not frivolous because the BIA erred by 

misconstruing § 1473.7(a)(1). Where a person has been 

ordered removed from the country, state court vacaturs can 

sometimes vitiate the grounds for removal. If a state court 

vacates a conviction on account of a “procedural or 

substantive defect,” that conviction is “not a ‘conviction’ for 

immigration purposes.” Ballinas-Lucero v. Garland, 44 

F.4th 1169, 1178 (9th Cir. 2022) (quoting Nath v. Gonzales, 

467 F.3d 1185, 1189 (9th Cir. 2006)). By contrast, if a state 

court vacates a conviction “solely for rehabilitative reasons 

or reasons related to [the petitioner’s] immigration status,” 

that conviction remains valid for immigration purposes. 

Nath, 467 F.3d at 1189. Here, the BIA correctly noted that

the state court vacated Bent’s conviction pursuant to 

California Penal Code § 1473.7(a)(1). But the BIA then 

stated that “California Penal Code section 1473.7(a)(1) . . . 

explicitly allows for vacatur of state convictions solely to 

alleviate immigration consequences.” 

That is wrong. As the government concedes, 

§ 1473.7(a)(1) provides that “[a] person who is no longer in 

criminal custody may file a motion to vacate a conviction or 

sentence” on the grounds that “[t]he conviction or sentence 

is legally invalid due to prejudicial error damaging the 

moving party’s ability to meaningfully understand, defend 

against, or knowingly accept the actual or potential adverse 

immigration consequences of a conviction or sentence.” 

Cal. Penal Code § 1473.7(a)(1). We need not dust off our 
12 BENT V. GARLAND

dictionary or delve into the legislative history of 

§ 1473.7(a)(1) to see that the statute provides a vehicle to 

vacate a conviction to address a substantive or procedural 

error that renders a conviction “legally invalid.” The plain 

text does not permit a state court to vacate a conviction to

alleviate any immigration consequences arising from the 

conviction or sentence. 

The state court’s order vacating Bent’s conviction bears 

out this plain language reading of § 1473.7(a)(1). The state 

court held:

The no contest plea to Penal Code section 

664/187(a), attempted murder, entered 

September 6, 2006, is set aside in its entirety 

on the ground [that Bent] was unable to 

meaningfully understand and defend against 

the immigration consequences of his plea, 

resulting in an involuntary plea in violation 

of the Fifth Amendment [to] the United States 

Constitution, and is thus legally invalid 

pursuant to Penal Code section 1473.7(a)(1).

(Emphasis added). That order is clear: the state court set 

aside Bent’s no contest plea because it was based on “an 

involuntary plea in violation of the Fifth Amendment.” The 

finding of involuntariness stems from Bent’s inability to 

understand and defend against the immigration 

consequences of his plea, but the court granted vacatur 

because the plea was constitutionally deficient—not to 

alleviate any adverse immigration consequences.

Accordingly, because the BIA plainly erred in construing

both California Penal Code § 1473.7(a)(1) and the order 

vacating Bent’s conviction, remand to the BIA would not be 
BENT V. GARLAND 13

frivolous. We accede to the parties’ request to remand so 

that the BIA may reassess whether the government has met 

its burden of establishing that Bent’s conviction remains 

valid for immigration purposes. Nath, 467 F.3d at 1189.

B. Equitable Tolling

Remand is also not frivolous because the BIA misapplied 

our equitable tolling precedent in assessing whether Bent

diligently pursued his rights. Ordinarily, a petitioner has 

ninety days to file a motion to reopen removal proceedings 

before the BIA from “the date of entry of a final 

administrative order of removal.” 8 U.S.C. 

§ 1229a(c)(7)(C)(i). But this ninety-day period is subject to 

equitable tolling. Hernandez-Ortiz v. Garland, 32 F.4th 794, 

801 (9th Cir. 2022). Writ large, equitable tolling is a 

doctrine that “pauses the running of, or ‘tolls,’ a statute of 

limitations when a litigant has pursued his rights diligently 

but some extraordinary circumstance prevents him from 

bringing a timely action.” Arellano v. McDonough, 598 U.S. 

1, 6 (2023) (quoting Lozano v. Montoya Alvarez, 572 U.S. 1, 

10 (2014)). The doctrine rightly flows from “‘a tradition in 

which courts of equity have sought to relieve hardships 

which, from time to time, arise from a hard and fast 

adherence to more absolute legal rules, which, if strictly 

applied, threaten the evils of archaic rigidity.’” Kwai Fun 

Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013), aff’d 

and remanded sub nom. United States v. Wong, 575 U.S. 402 

(2015) (quoting Holland v. Florida, 560 U.S. 631, 653 

(2010)) (internal citation and quotations omitted). “A 

petitioner seeking equitable tolling bears the burden of 

establishing two elements: (1) that he has been pursuing his 

rights diligently, and (2) that some extraordinary 

circumstance stood in his way and prevented timely filing.” 
14 BENT V. GARLAND

Holland, 560 U.S. at 634 (internal quotations and citation 

omitted). 

Here, Bent seeks to toll the statutory period from the date 

of his final order of removal, December 22, 2021, through 

the date that his conviction was vacated, May 17, 2022. See 

Smith v. Davis, 953 F.3d 582, 601 (9th Cir. 2020) (en banc) 

(“[T]he maximum additional time, beyond the period of 

limitations, available to a litigant otherwise eligible for 

equitable tolling, is equal to the amount of time that the 

extraordinary circumstance that impeded timely filing 

existed.”). The BIA did not consider whether some 

extraordinary circumstance preventing timely filing stood in 

Bent’s way. Instead, it considered only whether Bent

diligently pursued his rights. The BIA concluded that he did 

not. Without citing any authority, the BIA looked to Bent’s 

diligence dating all the way back to his conviction in 2006, 

and it found that Bent failed to show the requisite level of 

diligence from 2006 through the date he filed his motion to 

reopen in 2022. 

But the BIA misunderstands our equitable tolling 

doctrine. As we held in Avagyan v. Holder, “we measure [a 

petitioner’s] diligence from th[e] date” on which “a 

reasonable person in [the petitioner]’s position [is put] on 

notice that something was wrong.” 646 F.3d 672, 680 (9th 

Cir. 2011). Although the basis for Bent’s motion to reopen 

in this case is that he entered an involuntary plea—and not, 

as in Avagyan, ineffective assistance of counsel—the proper 

starting point for measuring diligence in this case is when a 

reasonable person in Bent’s position would be put on notice 
BENT V. GARLAND 15

of the error underlying his motion to reopen.3 After all, the 

diligence requirement in our equitable tolling doctrine stems 

from the adage that “equity aids the vigilant, not those who 

slumber on their rights.” Smith, 953 F.3d at 590 (citation 

omitted). 

Here, at the time that Bent pleaded no contest and was 

sentenced in 2006, the state court did not explicitly advise 

him of any immigration consequences associated with the 

plea.4 Bent then served a decade-long prison term without 

having any reason to suspect that his plea and resulting 

conviction carried adverse immigration consequences. 

Accordingly, we cannot conclude that Bent slumbered on his 

rights; unless he was a psychic, Bent simply had no basis to 

know or suspect that he had any rights to pursue. It was only 

when he was served with an NTA in 2016 charging him as 

removable based on his 2006 conviction that a reasonable 

person in Bent’s position would be on notice of the error 

underlying his motion to reopen—i.e., that he had entered an 

involuntary plea with adverse immigration consequences. 

Accordingly, the BIA should measure Bent’s diligence from 

3 Citing to a federal regulation that is currently subject to a nationwide 

injunction, 8 C.F.R. § 1003.2(c)(3)(v), Bent argues that the BIA erred 

because “the BIA does not consider facts and circumstances that 

occurred before the final removal order to be relevant to diligence.” See 

Bravo-Bravo v. Garland, 54 F.4th 634, 637 (9th Cir. 2022) (citing Cath. 

Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., 2021 WL 

3609986 at *1 (D.D.C. Apr. 4, 2021); Centro Legal de la Raza v. Exec. 

Off. for Immigr. Rev., 524 F. Supp. 3d 919, 928 (N.D. Cal. 2021)) (noting 

that the regulation has been enjoined). The enjoined regulation is not 

currently in effect and therefore does not impact our analysis.

4 Indeed, in its 2022 vacatur order, the state court found that Bent “was 

unable to meaningfully understand and defend against the immigration 

consequences of his plea.” 
16 BENT V. GARLAND

the date that he received the NTA. See Avagyan, 646 F.3d 

at 680. 

And remand so that the BIA may assess diligence during 

the relevant period would not be frivolous because the record 

cuts both ways.5 On the one hand, Bent did not pursue 

vacatur of his conviction for five years after he received the 

NTA. That may well undermine his ability to demonstrate 

that he diligently pursued his rights. But on the other hand,

there is also good reason to believe that Bent did diligently 

pursue his rights during this period. After all, due diligence 

requires a showing of reasonable diligence, not “maximum 

feasible diligence.” Holland, 560 U.S. at 653. That is, we 

do not require petitioners to demonstrate “an overzealous or 

extreme pursuit of any and every avenue of relief.” Doe v. 

Busby, 661 F.3d 1001, 1015 (9th Cir. 2011) (emphasis 

added). In assessing a petitioner’s diligence, we “consider 

the petitioner’s overall level of care and caution in light of 

his or her particular circumstances,” and we are “guided by 

decisions made in other similar cases . . . with awareness of 

the fact that specific circumstances, often hard to predict in 

advance, could warrant special treatment in an appropriate 

case.” Smith, 953 F.3d at 599 (citations omitted); see Ford 

v. Gonzalez, 683 F.3d 1230, 1238 (9th Cir. 2012) (“Our 

focus . . . is simply whether the petitioner exercised 

reasonable diligence given his particular circumstances, 

5 Our dissenting colleague faults us for “wad[ing] into the merits of the 

diligence question, rather than merely remanding this issue to the 

agency.” Dissent at 27 n.4. But contrary to the dissent’s suggestion, we 

do not decide one way or the other whether “Bent acted diligently in 

these circumstances.” Dissent at 25. Rather, we engage with—but do 

not resolve—the merits of the diligence issue only to assess whether the 

government’s remand “request is frivolous,” nothing more. See Nat. 

Res. Def. Council, 38 F.4th at 60. So we leave the ultimate resolution of 

the diligence question to the Agency, as the government asks us to.
BENT V. GARLAND 17

including any impediments confronting him and the 

resources at his disposal.” (emphasis omitted)). 

Here, after Bent’s NTA put him on notice that he was 

removable, he fervently defended against removal, first 

before the IJ and then several times before the BIA and this 

court. He undertook these efforts after spending nearly a 

decade in prison and while in immigration detention.6 

Indeed, the basis for Bent’s vacatur—§ 1473.7(a)(1)—did 

not come into effect until 2017, long after his 

unconstitutional conviction.7 But that was not all. In 2022, 

while his petition for review of his final order of removal 

was still pending, Bent pursued and obtained his state court 

vacatur. Approximately one month later, before his merits 

petition was even fully briefed before us, he also filed his 

motion to reopen. He was so diligent that his petitions for 

review on the merits and on the motion to reopen are both

presently before us. Accordingly, we agree with the parties 

6 Bent remained in DHS detention from 2016 until April 2020.

7 As amici set forth in their amici curiae brief: “Section 1473.7 is a 

procedural vehicle for individuals to vacate unlawful convictions after

they leave state custody. Prior to section 1473.7’s enactment, no such 

post-custodial mechanism existed. Under state law, an individual could 

pursue vacatur of an unlawful conviction while still in state custody, but 

many could not once their custody concluded. Section 1473.7 filled that 

procedural gap.” Accordingly, the BIA’s diligence analysis should 

consider that, from the time Bent had reason to become aware of the 

adverse immigration consequences in June 2016 through the effective 

date of § 1473.7, Bent appears to have had no avenue to obtain vacatur 

of his unconstitutional conviction.
18 BENT V. GARLAND

that remand on the issue of diligence would not be 

frivolous.8 

Additionally, remand is appropriate so that the BIA can 

assess whether extraordinary circumstances stood in Bent’s

way and prevented timely filing. Hernandez-Ortiz, 32 F.4th 

at 801. We have considered, though not decided, “whether 

vacatur of a conviction underlying a removal order on 

constitutional grounds qualifies” as an extraordinary 

circumstance for the purpose of equitable tolling. 

Covarrubias-Delgado v. Garland, 2023 WL 4928509, at *1 

(9th Cir. Aug. 2, 2023). This issue appears to be percolating 

throughout the Circuit. For example, in CovarrubiasDelgado, in deference to the BIA, “we remand[ed] to the 

BIA to determine whether vacatur of [the petitioner]’s 

criminal conviction is an extraordinary circumstance that 

explains the delay in filing his motion to reopen.” Id. at *1 

(citing INS v. Ventura, 537 U.S. 12, 16–18 (2002)). 

Similarly, in Guzman-Nunez v. Garland, we remanded so 

that the BIA could “consider, in the first instance, whether 

the vacatur of [the petitioner’s] conviction pursuant to 

8 Our dissenting colleague would treat Bent’s failure to pursue vacatur 

for the five years after the effective date of § 1473.7 as dispositive of the 

diligence analysis. Dissent at 24. But such a per se rule fails to “consider 

[Bent]’s overall level of care and caution in light of his . . . particular 

circumstances.” Smith, 953 F.3d at 599. Of course, had Bent failed to 

pursue his rights in any way for five years after being put on notice of 

the error underlying his motion to reopen, that would demonstrate a lack 

of diligence. See Bonilla v. Lynch, 840 F.3d 575, 583 (9th Cir. 2016) 

(affirming that petitioner “did not act with due diligence, as there was a 

six year gap—between 2002 and 2008—in his pursuit of legal advice”). 

But that is not this case; Bent actively pursued his rights throughout his 

removal proceedings until he filed his motion to reopen. We leave the 

determination of whether Bent acted with due diligence during that 

period for the Agency to address on remand. 
BENT V. GARLAND 19

California Penal Code § 1473.7(a)(1) demonstrates that [he] 

faced ‘extraordinary circumstances’ for purposes of 

equitable tolling.” 2023 WL 8889558, at *3 (9th Cir. Dec. 

26, 2023); see also Alcazar-Martinez v. Garland, No. 21-

1382 (9th Cir. August 15, 2024).

9 As we did in those cases, 

we leave it to the BIA10 to determine on remand whether the 

vacatur of Bent’s conviction on constitutional grounds under 

§ 1473.7(a)(1) demonstrates that he faced extraordinary 

circumstances for purposes of equitable tolling.

IV. Conclusion

For these reasons, we GRANT IN PART the petition for 

review and REMAND this case to the BIA for further 

proceedings consistent with this opinion.

11

9 We cite these unpublished memorandum dispositions not for their 

precedential value, but to highlight that this issue has appeared before us 

with some frequency but remains unresolved by the BIA.

10 Although the issue remains unresolved by the BIA, we note that in 

2019, the BIA held in an unpublished decision: “We also find the 

decision of the New Mexico criminal court judge vacating and setting 

aside the respondent’s 2007 criminal conviction on constitutional 

grounds to constitute an extraordinary circumstance, supporting the 

conclusion that equitable tolling of the filing deadline is warranted in this 

case.” In Re: Javier Hector Plata-Herrera, 2019 WL 3776104, at *2 

(DCBABR Apr. 30, 2019).

11 The government’s pending motion for remand (Dkt. 33) is DENIED

as moot.
20 BENT V. GARLAND

Forrest, J., dissenting.

A petitioner generally must file a motion to reopen 

removal proceedings within 90 days of a final order of 

removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). Petitioner 

Claude Bent did not file his motion to reopen until several 

months after this deadline passed. He nonetheless argues that 

his motion was timely on two grounds. First, he relies on a 

2021 regulation that provides an exception to untimeliness 

where there have been material changes in fact or law. 

Second, he asserts that he is entitled to equitable tolling. He 

is incorrect on both points. Under a proper application of our 

law, the Board of Immigration Appeals (BIA) did not abuse 

its discretion in denying Bent’s motion to reopen as 

untimely. See Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 

(9th Cir. 2022) (stating standard of review). Therefore, I 

respectfully dissent.

I. Changed-Circumstances Regulation

The regulation that Bent relies on—8 C.F.R. 

§ 1003.2(c)(3)(v) (2021)—went into effect in January 2021 

and excused an untimely motion to reopen where the 

petitioner could show “[a] material change in fact or law 

underlying a removability ground or grounds . . . that 

occurred after the entry of an administratively final order 

that vitiates all grounds of removability” and that he 

“exercised diligence in pursuing the motion to reopen.” As 

the majority notes, the Northern District of California issued 

a nationwide injunction prohibiting the “implementation and 

enforcement” of this regulation in March 2021. Centro Legal 

de la Raza v. Exec. Off. for Immigr. Rev., 524 F. Supp. 3d 

919, 980 (N.D. Cal. 2021); see also Perez-Camacho v. 

Garland, 54 F.4th 597, 605 n.11 (9th Cir. 2022). The 

injunction currently remains in place. 
BENT V. GARLAND 21

Accordingly, 8 C.F.R. § 1003.2(c)(3)(v) was not in effect 

when Bent filed, or when the BIA ruled on, his motion to 

reopen. When the BIA decided Bent’s motion, there was no 

regulatory exception to the timeliness requirement for 

motions to reopen based on a vacated conviction or a 

material change in fact that eliminates all grounds of 

removability. See 8 C.F.R. § 1003.2(c)(3) (2020). Thus, per 

the regulations, Bent had 90 days to file his motion, which 

he did not do. 

II. Equitable Tolling

Bent argued in his briefing that his motion to reopen was 

timely because the BIA’s practice is to grant reopening 

where a petitioner obtains post-conviction relief that vitiates 

all grounds of removability. At oral argument, he further 

asserted that the BIA generally grants reopening based on 

post-conviction relief that eliminates all removability 

grounds without even discussing the petitioner’s due 

diligence.1

“This court . . . recognizes equitable tolling of deadlines 

and numerical limits on motions to reopen or reconsider 

during periods when a petitioner is prevented from filing 

because of deception, fraud, or error, as long as the petitioner 

acts with due diligence in discovering the deception, fraud, 

or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 

2003). In other words, a petitioner seeking equitable tolling 

must establish that: (1) some extraordinary circumstance 

1 Bent cited the following BIA cases as examples: In re Demirchyan, No. 

AXXX-XX4-622, 2019 WL 7168795 (BIA Oct. 31, 2019); In re Limon 

Castro, No. AXXX-XX0-288, 2018 WL 8333468 (BIA Dec. 28, 2018); 

In re Saco Cotito, No. AXXX-XX9-284, 2020 WL 1169206 (BIA Jan. 

6, 2020); and In re Mendoza Sotelo, No. AXXX-XX8-491, 2019 WL 

8197756 (BIA Dec. 23, 2019).
22 BENT V. GARLAND

prevented timely filing and (2) he acted diligently in 

discovering that extraordinary circumstance. Avagyan v. 

Holder, 646 F.3d 672, 679 (9th Cir. 2011). This inquiry is 

“fact-intensive and case-specific” and requires an 

assessment of “the reasonableness of [the] petitioner’s 

actions in the context of his or her particular circumstances.” 

Id.

The due-diligence analysis proceeds in three steps. First, 

the court must “determine if (and when) a reasonable person 

in petitioner’s position would suspect the specific fraud or 

error underlying [his] motion to reopen.” Id. Second, the 

court must “ascertain whether [the] petitioner took 

reasonable steps to investigate the suspected fraud or error, 

or, if [the] petitioner is ignorant of [the error], whether [the] 

petitioner made reasonable efforts to pursue relief.” Id. And 

third, the court must “assess when the tolling period should 

end; that is, when [the] petitioner definitively learns of the 

harm resulting from [the error], or obtains ‘vital information 

bearing on the existence of his claim.’” Id. (citation omitted).

Failing to analyze due diligence in considering whether 

equitable tolling applies—or automatically evaluating 

diligence from the moment post-conviction relief is 

granted—is inconsistent with our precedent. For example, in 

Perez-Camacho, the petitioner was convicted in 1997 of 

abusing his spouse and was ordered removed in 2005. 54 

F.4th at 601. More than a decade later, the petitioner moved 

to reopen, claiming that he was no longer removable because 

the state court modified his conviction based on a 

constitutional defect. Id. at 601–02. The BIA denied the 

motion to reopen. Id. at 602. On appeal, we concluded the 

petitioner’s motion was untimely, and that his filing deadline 

was not equitably tolled, even though he submitted 

“evidence of his modified conviction within days after the 
BENT V. GARLAND 23

state court’s modification order.” Id. at 605, 607. We 

explained that the petitioner “waited 21 years (13 of which 

occurred after his final order of removal was rendered) to 

seek modification of his conviction in state court based on 

the . . . alleged [error] in 1997” and “provided no basis as to 

his ‘reasonable efforts to pursue relief’ during the 21-year 

period, nor provided any explanation for such an 

‘exceedingly long’ delay.” Id. at 607 (citation omitted). 

Thus, the BIA did not abuse its discretion in declining to 

apply equitable tolling. Id.

Similarly, in Lara-Garcia v. Garland, the petitioner was 

convicted of drug possession in 2008 and removed the same 

year. 49 F.4th 1271, 1274 (9th Cir. 2022). The state court 

dismissed the drug conviction ten years later, and the 

petitioner moved to reopen. Id. The BIA denied the motion 

as untimely, concluding the petitioner was not entitled to 

equitable tolling. Id. at 1274–75. Again, we found no error 

because the petitioner “did not seek to have his conviction 

expunged until nearly a decade after he was convicted” and 

presented no evidence explaining the delay. Id. at 1277. Both 

Perez-Camacho and Lara-Garcia demonstrate that a 

petitioner’s diligence is assessed based on when he has 

reason to suspect the error underlying his motion to reopen, 

not when he obtains post-conviction relief. 

Here, Bent’s asserted error that underlies his motion to 

reopen is that he did not understand how his guilty plea and 

resulting conviction would impact his immigration status. I 

agree with the majority that Bent had no reason to know of 

the adverse immigration consequences flowing from his 

conviction until he was served a Notice to Appear (NTA) 

before immigration authorities in 2016. Maj. Op. at 15–16. I 

also agree that Bent cannot be faulted for not seeking vacatur 

of his conviction before California made that relief available 
24 BENT V. GARLAND

to him in 2017, when California Penal Code § 1473.7 went 

into effect. But that is where our agreement ends. 

The majority asserts that the BIA failed to identify “the 

proper starting point for measuring diligence in this case.” 

Id. at 14. According to the majority, the BIA assessed Bent’s 

diligence starting from 2006, when he was convicted. Id. But 

that is only partly true. The BIA first addressed the date of 

Bent’s conviction, but it went on to acknowledge that Bent 

“was aware of the potential immigration consequences of his 

convictions not later than 2016, when he was served with the 

[NTA].” Considering this later date, the BIA determined that 

Bent “ha[d] not shown the requisite due diligence to be 

granted equitable tolling” because he waited several years 

after § 1473.7 took effect in January 2017 to seek vacatur of 

his conviction. The majority ignores the BIA’s consideration 

of Bent’s diligence after he received his NTA and instructs 

the BIA to redo an analysis that the BIA has already done. 

See id. at 18 n.8 (“We leave the determination of whether 

Bent acted with due diligence [after he received his NTA] 

for the Agency to address on remand.”). 

The BIA did not abuse its discretion in concluding that 

Bent failed to act diligently after receiving the NTA. Bent 

waited five years after California enacted § 1473.7 before 

seeking post-conviction relief. Cf. Avagyan, 646 F.3d at 680–

81 (concluding petitioner was not diligent where she had 

reason to suspect that counsel inadequately prepared her 

asylum petition but took no affirmative steps to investigate 

counsel’s performance); Bonilla v. Lynch, 840 F.3d 575, 583 

(9th Cir. 2016) (explaining the BIA properly concluded that 

the petitioner did not act diligently where he “waited six

years to take any further action to negate [his] deportation 

order” and failed to provide a reasonable “explanation for 

waiting that long”). Bent’s justification for his delay is that 
BENT V. GARLAND 25

he was waiting for the BIA to decide his merits appeal in his 

removal proceedings, which occurred in December 2021, 

because otherwise he would be “pursuing a [postconviction] remedy that may have been rendered moot” by a 

favorable ruling from the BIA.2 Apparently, the majority 

accepts this reasoning because it concludes that Bent acted 

with diligence by “fervently” contesting the removal 

proceedings and then seeking vacatur of his conviction after 

the BIA denied him relief from removal. Maj. Op. at 17. 

I cannot agree that Bent acted diligently in these 

circumstances. The purpose of equitable tolling is to 

ameliorate the harsh consequences of strictly applying a time 

limit where a petitioner has diligently pursued his rights but 

“some extraordinary circumstance . . . prevented timely 

filing.” Lona v. Barr, 958 F.3d 1225, 1232 (9th Cir. 2020). 

We assess diligence based on “the reasonableness of [the] 

petitioner’s actions in the context of his or her particular 

circumstances.” Avagyan, 646 F.3d at 679. Bent was 

represented by counsel throughout his removal proceedings 

after this court’s remand in 2019. And, during that time, he 

was aware that § 1473.7 offered relief to defendants who did 

not understand the adverse immigration consequences of 

2 Bent also argues that the BIA arbitrarily departed from its practice of 

granting reopening to petitioners who obtain a vacatur after a final order 

of removal. Bent is correct that under certain circumstances the BIA may 

“act[] arbitrarily when it exercises its discretion to deny a reopening in 

one case when it has granted a reopening in another factually similar 

case.” Israel v. INS, 785 F.2d 738, 741 (9th Cir. 1986). But this rule 

generally applies to factually similar published BIA decisions. See id. at 

740–42; cf. Gomez-Sanchez v. Sessions, 892 F.3d 985, 994–95 (9th Cir. 

2018). Bent does not cite any published BIA decision to support his 

argument that it is BIA policy to grant reopening whenever a petitioner 

receives post-conviction relief that eliminates all grounds for 

removability.
26 BENT V. GARLAND

their conviction due to legal error. Yet, Bent did not pursue 

relief under that statute until the conclusion of his removal 

proceedings. 

A reasonable person in Bent’s position would have 

sought vacatur of the conviction that served as the 

government’s sole basis for removal at the same time as 

defending against removal. Indeed, one wonders why that 

was not his primary strategy for defending against removal, 

where a vacatur likely would have led to immediate 

termination of removal proceedings.3 See Ballinas-Lucero v. 

Garland, 44 F.4th 1169, 1177–78 (9th Cir. 2022) (explaining 

that convictions vacated on procedural or substantive 

grounds cannot serve as the basis for removal). I disagree 

with the majority’s suggestion that requiring Bent to pursue 

post-conviction relief before his removal proceedings were 

complete is akin to requiring “maximum feasible diligence” 

or something more than reasonable diligence. Maj. Op. at 16

(citation omitted). It is reasonable to expect a petitioner who 

knows that the agency is denying relief specifically because 

of a criminal conviction to seek post-conviction relief, even 

before removal proceedings are concluded, where there is a 

reason and a known path for doing so. See Hernandez-Ortiz, 

32 F.4th at 801 (stating motions to reopen are “particularly 

disfavored in immigration proceedings, where every delay 

works to the advantage of the deportable alien who wishes 

3 Bent instead argued that his attempted murder conviction for 

attempting to strike a man with a car was not an aggravated felony 

because the relevant California statutes criminalize the attempted murder 

of a human being and a fetus. According to Bent, only the murder of a 

human being is an aggravated felony, and the record is unclear as to 

whether he was convicted of attempting to murder a human being or a 

fetus. 
BENT V. GARLAND 27

merely to remain in the United States.” (quoting DelgadoOrtiz v. Holder, 600 F.3d 1148, 1150 (9th Cir. 2010))).

Because the BIA did not abuse its discretion in 

concluding that Bent failed to diligently pursue his rights 

after receiving the 2016 NTA, he is not entitled to equitable 

tolling, and there is no need to analyze step three—when the 

tolling period ended. See Avagyan, 646 F.3d at 679. Bent had 

90 days from December 2021, when the BIA dismissed his 

appeal in his removal proceedings, to file his motion to 

reopen. He did not meet that deadline, and, therefore, the 

BIA reasonably determined that Bent’s motion to reopen was 

untimely.4 For these reasons, I would deny this petition for 

review.5

I respectfully dissent. 

4 The Government requested a remand for the BIA to reassess Bent’s 

diligence, among other things. But the majority has waded into the merits 

of the diligence question, rather than merely remanding this issue to the 

agency, by suggesting that there “is . . . good reason to believe that Bent 

did diligently pursue his rights,” Maj. Op. at 16, and that “Bent actively 

pursued his rights throughout his removal proceedings until he filed his 

motion to reopen,” id. at 18 n.8. Moreover, there is no basis to remand 

where the agency has not erred. See Singh v. Holder, 591 F.3d 1190, 

1192 (9th Cir. 2010). 

5 Because the majority holds Bent’s Petition No. 22-122 concerning the 

BIA’s merits decision in abeyance, Maj. Op. at 9 n.2, I do not address 

the issues raised there.