Emerald Zodwa Nkomo v. Attorney General of the United States of America

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-2781
____________
EMERALD ZODWA NKOMO,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A091-540-338)
Immigration Judge: Daniel A. Morris
Argued on June 16, 2020
Before: JORDAN, MATEY and ROTH, Circuit Judges
(Opinion filed: January 21, 2021)

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Jerard A. Gonzalez
Cheryl Lin (ARGUED)
Bastarrika Soto Gonzalez & Somohano
3 Garrett Mountain Plaza
Suite 302
Woodland Park, NJ 07424
Counsel for Petitioner
Rachel L. Browning
Giovanni DiMaggio (ARGUED)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
O P I N I ON
ROTH, Circuit Judge:
This is a petition for review of the BIA’s denial of a
motion to reopen Emerald Nkomo’s removal proceedings.
Nkomo was ordered removed after she was convicted of
conspiracy to commit wire fraud. While her removal
proceedings were pending, her husband, a United States
citizen, filed a Form I-130 petition for Alien Relative on her

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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. She contends that the BIA erred
in not considering whether she was entitled to equitable tolling.
Because Nkomo sufficiently put the BIA on notice that she was
raising an equitable tolling claim and because the BIA
considered the issue, we will vacate the BIA’s order and
remand for further proceedings.
I. FACTS
Emerald Nkomo came to the United States from
Zimbabwe in 1985 and became a lawful permanent resident in
1992. In March 2017, she was convicted of conspiracy to
commit wire fraud, an aggravated felony, and DHS initiated
removal proceedings against her. Nkomo applied for asylum,
withholding of removal, and protection under the Convention
Against Torture.
While those proceedings were pending, Nkomo’s
United States citizen husband, Joseph Witkowski, filed an I-
130 Petition for Alien Relative on her behalf. Because
Witkowski was incarcerated, it was difficult for him to attend
an interview with the U.S. Citizenship and Immigration
Service (USCIS). The IJ granted a continuance of Nkomo’s
removal proceedings so that Witkowski could attend the
interview. In January 2018, Nkomo’s counsel contacted DHS
to inform it that the IJ had adjourned Nkomo’s proceedings
until February 22, 2018, to allow time for adjudication of the

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I-130 petition.1 DHS confirmed that it would require
Witkowski to attend the interview in person.
While the I-130 petition was still pending, the IJ denied
Nkomo’s removal objections. The BIA affirmed. After the
Supreme Court decided Pereira v. Sessions,2 Nkomo moved to
remand, arguing that the immigration court lacked jurisdiction
because she was given a defective notice to appear. The BIA
denied the motion, and we affirmed.3
DHS did not set a date to interview Witkowski about the
I-130 petition. It was not until Nkomo petitioned for a writ of
mandamus in federal district court in February 2019 that DHS
finally scheduled an interview for March. Nkomo attended the
interview, but Witkowski’s presence was waived because he
was in federal custody. DHS granted the I-130 petition.
With the approved I-130 petition in hand, Nkomo
moved to reopen her removal proceedings so that she could
apply for relief under INA § 212(h). She argued that changed
circumstances warranted reopening because, despite her
numerous requests, the relief she sought had not been
available earlier due to the refusal of USCIS to conduct an
interview and adjudicate the petition. She emphasized the
government’s delay.4 She contended that she was likely to
succeed on the merits of a petition under INA § 212(h) and that
she could show extreme hardship. She also asked for
reopening based on exceptional circumstances because of the
1 AR 38.
2 585 U.S. ___ , 138 S. Ct. 2105 (2018).
3 Nkomo v. Att’y Gen., 930 F.3d 129, 131–32 (3d Cir. 2019).
4 AR 14.

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government’s delay.
The BIA denied the motion to reopen as untimely
because it was filed more than ninety days after the Board’s
removal order. The BIA noted that no exceptional
circumstances justified sua sponte reopening. The BIA
concluded, “Finally, to the extent the respondent is seeking
reopening in light of certain equities, including her long
presence in the United States and potential hardship to her
family, we do not have the authority to grant relief solely on
equitable or humanitarian grounds.”5
Nkomo petitioned for review. She asserts that the
Board erred because it failed to consider whether she was
entitled to equitable tolling of the ninety-day period for
reopening. The government responds that we lack jurisdiction
to consider this issue as Nkomo failed to raise it before the
BIA, and it is therefore unexhausted.6
II. DISCUSSION
We have jurisdiction over a petition for review of “the
Board’s denial of a motion to reopen a removal proceeding.”7
Because Nkomo was convicted of an aggravated felony, 8
U.S.C. § 1252(a)(2)(D) limits our jurisdiction to
5 AR 3.
6 Relatedly, the government argues that the BIA did not err in
failing to address equitable tolling because Nkomo did not
raise the issue. Because this substantially overlaps with the
exhaustion issue, we do not address this argument separately.
7 Mata v. Lynch, 576 U.S. 143, 147 (2015).

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“constitutional claims or questions of law.”8 We review the
BIA’s denial of a motion to reopen “under a highly deferential
abuse of discretion standard.”9 Typically, the BIA’s decision
to deny a motion to reopen sua sponte is “functionally
unreviewable” because we lack a “meaningful standard” for
review of the BIA’s “essentially unlimited” discretion.10
Nevertheless, we retain jurisdiction to “review the BIA’s
reliance on an incorrect legal premise.”11 Application of the
equitable tolling standard “to undisputed or established facts”
is a question of law that we review de novo.12
The government argues that Nkomo’s failure to exhaust
her equitable tolling claim independently bars our jurisdiction.
Nkomo offers two arguments in response: (1) she sufficiently
put the BIA on notice of her equitable tolling claim, and (2) the
BIA addressed equitable tolling sua sponte. We address each
in turn.
A. Nkomo put the BIA on notice of her equitable tolling
claim.
A noncitizen must exhaust her claim before the BIA for
8 8 U.S.C. § 1252(a)(2)(C), (D).
9 Alzaarir v. Att’y Gen., 639 F.3d 86, 89 (3d Cir. 2011).
10 Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651 (3d Cir.
2017).
11 Id.
12 See Guerrero-Lasprilla v. Barr, 589 U.S. ___ , 140 S. Ct.
1062, 1067 (2020); Kamara v. Att’y Gen., 420 F.3d 202, 211
(3d Cir. 2005).

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this Court to have jurisdiction over the claim.13 Our exhaustion
policy is “liberal.”14 As we have held. “so long as an
immigration petitioner makes some effort, however
insufficient, to place the Board on notice of a straightforward
issue being raised on appeal,” he meets the exhaustion
requirement.15 A petitioner need not even file a brief before
the BIA as long as his notice of appeal sufficiently “place[s]
the BIA on notice of what is at issue.”16 And although “we
will not require the BIA to guess which issues have been
presented and which have not,”17 the petitioner is not required
to state precisely the alleged error.18
Although Nkomo’s brief was less than precise, she did
enough to raise the issue of equitable tolling before the BIA.
She requested reopening because of “a significant change of
circumstance.”19 Although changed circumstances in the
context of motions to reopen often refer to a statutory exception
13 Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005).
14 Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006).
15 Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005).
16 Bhiski v. Ashcroft, 373 F.3d 363, 368 (3d Cir. 2004); see also
Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir. 2009) (concluding
that exhaustion is met if the issue is in the notice of appeal but
not the brief before the BIA).
17 Lin v. Att’y Gen., 543 F.3d 114, 122 (3d Cir. 2008).
18 See, e.g., Yan Lan Wu, 393 F.3d at 422 (finding a petitioner’s
claim exhausted even though she “did not explicitly argue that
the Immigration Judge erred in considering only her airport
interview” but “contend[ed] in her Notice of Appeal that the
Immigration Judge’s conclusion [was] not supported by
substantial evidence within the record”).
19 AR 13.

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to the ninety-day deadline for changed country conditions
related to asylum,20 the BIA in this case should have been on
notice that the “changed circumstance” Nkomo referred to was
her I-130 petition and that she was requesting equitable tolling.
Any doubt that Nkomo was requesting equitable tolling
should have vanished given the facts she presented. A
petitioner is entitled to equitable tolling of the ninety-day
deadline for a motion to reopen “only if he shows ‘(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented
timely filing.”21 Nkomo argued before the Board that she
repeatedly requested USCIS schedule an interview and decide
her I-130 petition, that USCIS waited eighteen months to
schedule an interview, and that USCIS did not do so until she
filed a writ of mandamus in federal court. This type of factual
setting is relevant to an equitable tolling analysis.
True, Nkomo did not mention “equitable tolling” by
name, but a petitioner is not required to recite “magic words . .
. or even cite[] to the relevant case law regarding an issue.”22
Nkomo requested reopening of her proceedings outside the
ninety-day period for “changed circumstances” and recited
facts showing that the delay was through no fault of her own.
This showing was sufficient to put the BIA on notice of her
20 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
21 Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable tolling
applies to the statutory deadline for filing motions to reopen.
See Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011);
Borges v. Gonzales, 402 F.3d 398, 400-01 (3d Cir. 2005).
22 Zhi Fei Liao v. Att’y Gen., 910 F.3d 714, 718 (3d Cir. 2018).

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equitable tolling claim.
B. The Board raised equitable tolling sua sponte.
Even had Nkomo failed to raise equitable tolling before
the BIA, her claim would be exhausted because the Board
considered the issue on its own. A claim is exhausted if the
Board considers the issue sua sponte.23 Although we have
declined to “specify the precise limitations of [the] rule,” we
noted in one case “that the BIA issued a ‘discernible
substantive discussion on the merits.’”24
Here, the BIA noted that “certain exceptions” to the
ninety-day filing requirement were not relevant.25 And, after
rejecting Nkomo’s motion to reopen as untimely, the BIA
concluded its opinion by stating that “to the extent the
respondent is seeking reopening in light of certain equities,
including her long presence in the United States and potential
hardship to her family, we do not have the authority to grant
relief solely on equitable or humanitarian grounds.”26 The
BIA’s suggestion that it does not have the authority to make
decisions on equitable grounds is perplexing. The BIA has
authority to equitably toll the deadline for motions to reopen—
23 Lin, 543 F.3d at 123–24.
24 Id. at 126 (quoting Sidabutar v. Gonzales, 503 F.3d 1116,
1122 (10th Cir. 2007)).
25 AR 3.
26 AR 3 (citing Matter of Medina, 19 I. & N. Dec. 734, 742
(BIA 1988)). Nkomo mentioned hardship to her family
because extreme hardship to a U.S. citizen relative is one way
to succeed on the merits of a petition for waiver of
inadmissibility. See 8 U.S.C. § 1182(h)(1)(B).

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the precise relief Nkomo sought.
Because Nkomo properly raised equitable tolling before
the BIA, the BIA erred in failing to consider her request for
equitable tolling on the merits. We remand for the Board to do
so in the first instance.27
III. CONCLUSION
For the foregoing reasons, we hold that Nkomo
exhausted her equitable tolling claim before the BIA. We will
grant Nkomo’s petition for review of the BIA’s denial of her
motion to reopen, vacate the BIA’s order and remand for
further proceedings consistent with this opinion.
27 See Cruz v. Att’y Gen., 452 F.3d 240, 248 (3d Cir. 2006).

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