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Nkomo v. AG United States

3rd Circuit

January 21, 2021

Nkomo v. AG United States involved a petition to review the Board of Immigration Appeals’s denial of a motion to reopen Nkomo’s removal proceedings. Nkomo was ordered removed after she was convicted of conspiracy to commit wire fraud. While the removal proceedings were pending, Nkomo’s husband, a U.S. citizen, filed a Form I-130 petition for Alien Relative on her behalf. The government did not decide that petition until after the BIA had issued a final order of removal. At that point, the government granted the I-130 petition. Nkomo moved to reopen her removal proceedings to request additional relief, but the BIA denied her motion.  On appeal, she argued that the BIA erred in not considering whether she was entitled to equitable tolling. The 3rd Circuit agreed and held that, though Nkomo’s motion to reopen did not mention “equitable tolling” by name, the averments and supporting brief were sufficient to put the BIA on notice of her equitable tolling claim. Therefore, the BIA erred in failing to consider her request for equitable tolling on the merits.

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