FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT

CLAUDE STEPHEN BENT,                                 No. 22-1910

                 Petitioner,                        Agency No.
                                                    037-050-176
    v.

MERRICK B. GARLAND, Attorney
General,                                              OPINION

                 Respondent.

           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

    Before: Danielle J. Forrest and Salvador Mendoza, Jr.,
    Circuit Judges, and Solomon Oliver, Jr., * District Judge.
                  Opinion by Judge Mendoza;
                   Dissent by Judge Forrest

*
 The Honorable Solomon Oliver, Jr., Senior United States District Judge
for the Northern District of Ohio, sitting by designation.
2                        BENT V. GARLAND


                          SUMMARY **


                           Immigration

    The panel granted in part petitioner Claude Stephen
Bent’s petition for review of the Board of Immigration
Appeals’ (“BIA”) denial of his motion to reopen removal
proceedings, and remanded 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 

(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.
    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

**
  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


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.


                        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;
4                     BENT V. GARLAND


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.

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
                          BENT V. GARLAND                     5


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
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
6                          BENT V. GARLAND


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,
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, 

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

. 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

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
procedural background brief, and focus on those aspects germane to our
decision.
                      BENT V. GARLAND                       7


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
       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
8                         BENT V. GARLAND


immigration consequences of his plea,” but viewed that
finding as “contradicted by the transcript of the plea
colloquy.”
    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, 

 (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, 

, 1252–53 (9th Cir.
2014) (quoting Movsisian v. Ashcroft, 

(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

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.
                       BENT V. GARLAND                       9


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
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, 

, 60 (9th Cir. 2022)
(citing Cal. Cmtys. Against Toxics v. EPA, 

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

 (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, 

 (9th Cir. 2007); see, e.g., Mero v.
Barr, 

 (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, 

); Alanniz
v. Barr, 

 (9th Cir. 2019) (“[W]e accede
to the parties’ request and remand this issue to the agency.”).
10                     BENT V. GARLAND


    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, 

. There
is no indication of bad faith in this case, and no party has
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, 

 (9th Cir. 2022) (quoting Nath v. Gonzales,

 (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, 

. 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
                      BENT V. GARLAND                    11


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.”

(a)(1). We need not dust off our
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. Cf. 

(a)(1)
(permitting deferred entry of judgment where the
“disposition of the case may cause adverse consequences,
including adverse immigration consequences”).
    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
12                    BENT V. GARLAND


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
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, 

.
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, 

 (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, 

 (2023) (quoting Lozano v. Montoya Alvarez, 

 (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
                       BENT V. GARLAND                      13


Wong v. Beebe, 

 (9th Cir. 2013), aff’d
and remanded sub nom. United States v. Wong, 

(2015) (quoting Holland v. Florida, 

(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.”
Holland, 

 (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, 

 (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.” 

 (9th
Cir. 2011). Although the basis for Bent’s motion to reopen
14                         BENT V. GARLAND


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
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, 

 (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

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

(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, 

, 637 (9th Cir. 2022) (citing Cath.
Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., 

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

, 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.”
                           BENT V. GARLAND                            15


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
the date that he received the NTA. See Avagyan, 

.
    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, 

. That is, we
do not require petitioners to demonstrate “an overzealous or
extreme pursuit of any and every avenue of relief.” Doe v.
Busby, 

 (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, 

 (citations omitted); see Ford
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 26 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 24. 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.
16                         BENT V. GARLAND


v. Gonzalez, 

 (9th Cir. 2012) (“Our
focus . . . is simply whether the petitioner exercised
reasonable diligence given his particular circumstances,
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.
                            BENT V. GARLAND                               17


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, 

. 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, 

, at *1
(9th Cir. Aug. 2, 2023). This issue appears to be percolating
throughout the Circuit. For example, in Covarrubias-
Delgado, 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.” 

 at *1
(citing INS v. Ventura, 

, 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 23. But such a per se rule fails to “consider
[Bent]’s overall level of care and caution in light of his . . . particular
circumstances.” Smith, 

. 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, 

 (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.
18                            BENT V. GARLAND


California Penal Code § 1473.7(a)(1) demonstrates that [he]
faced ‘extraordinary circumstances’ for purposes of
equitable tolling.” 

, 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 BIA 10 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, 

, at *2
(DCBABR Apr. 30, 2019).
11
  The government’s pending motion for remand (Dkt. 33) is DENIED
as moot.
                           BENT V. GARLAND                  19


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, 

 (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., 

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

, 605 n.11 (9th Cir. 2022). The
injunction currently remains in place.
20                       BENT V. GARLAND


    Accordingly, 

(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 

(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, 

 (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, 

 (BIA Oct. 31, 2019); In re Limon
Castro, No. AXXX-XX0-288, 

 (BIA Dec. 28, 2018);
In re Saco Cotito, No. AXXX-XX9-284, 

 (BIA Jan.
6, 2020); and In re Mendoza Sotelo, No. AXXX-XX8-491, 

 (BIA Dec. 23, 2019).
                        BENT V. GARLAND                       21


prevented timely filing and (2) he acted diligently in
discovering that extraordinary circumstance. Avagyan v.
Holder, 

 (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.”

     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.” 

 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.” 

 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.’” 

 (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
22                     BENT V. GARLAND


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. 

, 1274 (9th Cir. 2022). The state court
dismissed the drug conviction ten years later, and the
petitioner moved to reopen. 

 The BIA denied the motion
as untimely, concluding the petitioner was not entitled to
equitable tolling. 

 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. 

. 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 14–15. I
also agree that Bent cannot be faulted for not seeking vacatur
of his conviction before California made that relief available
                       BENT V. GARLAND                      23


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 13–15. According to the majority, the BIA assessed
Bent’s diligence starting from 2006, when he was convicted.
Id at 13. 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 17 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, 

(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
24                         BENT V. GARLAND


waiting that long”). Bent’s justification for his delay is that
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 [post-
conviction] 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 15–16.
     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, 

 (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, 

. 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

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, 

 (9th Cir. 1986). But this rule
generally applies to factually similar published BIA decisions. See 

 at
740–42; cf. Gomez-Sanchez v. Sessions, 

, 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.
                          BENT V. GARLAND                             25


not understand the adverse immigration consequences of
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, 

, 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 15
(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,

 (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.
26                         BENT V. GARLAND


merely to remain in the United States.” (quoting Delgado-
Ortiz v. Holder, 

 (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, 

. 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 15, and that “Bent actively
pursued his rights throughout his removal proceedings until he filed his
motion to reopen,” 

 at 17 n.8. Moreover, there is no basis to remand
where the agency has not erred. See Singh v. Holder, 

 (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 8 n.2, I do not address
the issues raised there.