Eleventh Circuit Clarifies Timeliness Standard for Claim-Processing Objections to Defective NTAs

Introduction

Case Name: Sara Ordoñez-Vasquez v. U.S. Attorney General
Court & Date: United States Court of Appeals for the Eleventh Circuit — 30 June 2025 (Non-Argument Calendar)
Procedural Posture: Petition for review of the Board of Immigration Appeals’ (“BIA”) denial of a motion to reconsider.
Key Issue: Whether the BIA abused its discretion when it deemed Ms. Ordoñez-Vasquez’s objection to a defective Notice to Appear (“NTA”) untimely and, consequently, refused to remand her case for further proceedings.
Parties:

Petitioner: Sara Consuelo Ordoñez-Vasquez, a Guatemalan national facing removal.
Respondent: U.S. Attorney General (Department of Homeland Security prosecuted below).

Over the last decade, defective NTAs — especially those lacking a date and time for the first hearing — have generated extensive litigation following Pereira v. Sessions and Niz-Chavez v. Garland. The Eleventh Circuit’s present decision contributes a crucial procedural clarification: a claim-processing objection to a deficient NTA is forfeited if first raised after the merits have been fully litigated before the Immigration Judge.

Summary of the Judgment

The Eleventh Circuit, per curiam, denied Ms. Ordoñez-Vasquez’s petition. It held that:

The Court’s jurisdiction was confined to the BIA’s May 22 2024 order denying reconsideration because Ms. Ordoñez filed her petition more than 30 days after the BIA’s underlying merits dismissal.
The BIA did not abuse its discretion in concluding that Ms. Ordoñez forfeited her claim-processing objection by waiting until her BIA brief — after losing on the merits before the IJ — to raise it.
Adopting the Seventh Circuit’s more lenient “Arreola-Ochoa” test for timeliness was unnecessary; under Kontrick v. Ryan and Eleventh Circuit precedent, her objection was untimely in any event.

Accordingly, the petition was DENIED.

Analysis

Precedents Cited and Their Influence

Pereira v. Sessions, 585 U.S. 198 (2018) & Niz-Chavez v. Garland, 593 U.S. 155 (2021) — Recognized that an NTA missing time/place information is defective for stop-time purposes.
Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148 (11th Cir. 2019) — Held that §1229(a) requirements are claim-processing, not jurisdictional.
Farah v. U.S. Att’y Gen., 12 F.4th 1312 (11th Cir. 2021) — Separated jurisdictional attacks from claim-processing objections.
Kontrick v. Ryan, 540 U.S. 443 (2004) — A claim-processing rule can be forfeited if raised after merits litigation.
Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022) — Objection timely if raised before close of pleadings; termination not automatic remedy.
Leger v. U.S. Att’y Gen., 101 F.4th 1298 (11th Cir. 2024) — Remanded where IJ/BIA failed to address a timely claim-processing objection.
Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th Cir. 2005) — 30-day petition for review deadline is jurisdictional and not tolled by a motion to reconsider.

Collectively, these authorities framed two decisive propositions: (1) Defects in an NTA raise claim-processing, not jurisdictional, issues; and (2) claim-processing objections can be forfeited if not timely asserted. The panel found Ms. Ordoñez’s objection untimely under Kontrick, thus aligning with both BIA precedent (Fernandes) and its own recent guidance (Leger).

Legal Reasoning

Scope of Appellate Jurisdiction. Because the petition for review was filed within 30 days of the BIA’s reconsideration decision but more than 30 days after the merits dismissal, the court’s jurisdiction was limited to the reconsideration order (Dakane).
Nature of the Rule. The statutory time-and-place requirement in §1229(a)(1) is a claim-processing rule, not jurisdictional (Perez-Sanchez). Thus, objections may be forfeited.
Timeliness Standard. Drawing on Kontrick and Matter of Fernandes, the court stressed that a respondent must raise the objection before the close of pleadings. Ms. Ordoñez waited until her BIA brief — after the IJ denied relief on the merits — so her objection was too late.
Abuse-of-Discretion Review. Under Ferreira v. U.S. Att’y Gen., the BIA abuses its discretion only if it misapplies the law or departs from precedent without explanation. Here, the BIA faithfully applied Fernandes and Kontrick; no abuse occurred.
Rejection of Seventh Circuit Approach. The petitioner urged adoption of Arreola-Ochoa v. Garland, 34 F.4th 603 (7th Cir. 2022), which measures timeliness differently. The panel found that because the objection came after merits litigation, it was untimely under any conceivable test, obviating cross-circuit analysis.

Impact of the Decision

Practical Deadline Cemented. In the Eleventh Circuit, respondents must raise defective-NTA objections no later than the close of pleadings before the IJ. Waiting until an appeal, or a motion to reconsider, risks forfeiture.
Strategic Counsel Advice. Immigration practitioners must scrupulously review NTAs and lodge objections at the outset — preferably in writing before or at the master calendar hearing — to preserve the issue.
Judicial Efficiency. By reinforcing forfeiture, the Court curtails late-stage procedural challenges that undermine finality, reducing remand traffic and conserving judicial resources.
Limited Circuit Split. The Eleventh Circuit distances itself from the Seventh Circuit’s more forgiving approach, signaling potential future Supreme Court involvement if inter-circuit divergence deepens.
Follow-on Litigation. Litigants may attempt creative characterizations (due-process, statutory interpretation, prejudice arguments) to circumvent forfeiture, but Ordoñez-Vasquez erects a high barrier.

Complex Concepts Simplified

Notice to Appear (NTA): The charging document that initiates removal proceedings. To be valid, it must list facts, charges, and the date/time of the first hearing.
Claim-Processing Rule: A procedural directive governing how litigation should advance (e.g., deadlines, filing requirements). Unlike jurisdictional rules, they can be waived or forfeited.
Jurisdictional Rule: A threshold requirement that defines a tribunal’s power to act. If absent, any resulting order is void.
Forfeiture vs. Waiver: Waiver is the intentional relinquishment of a known right; forfeiture is the unintentional loss of a right through inaction.
Motion to Reconsider: A request to the same tribunal (here, the BIA) to re-examine its decision for legal or factual error, typically subject to strict time limits.
Close of Pleadings: In immigration court, the point at which the respondent has conceded or denied factual allegations and removability, and the IJ sets the case for merits. After this stage, new procedural objections are generally disfavored.

Conclusion

The Eleventh Circuit’s opinion in Ordoñez-Vasquez sharpens the procedural landscape forged after Pereira and Niz-Chavez. By unequivocally declaring that claim-processing objections to defective NTAs must be asserted before the close of pleadings or are forfeited, the Court fortifies judicial efficiency and provides clear guidance to practitioners. Litigants who overlook early objections will find the courthouse doors closed, regardless of the underlying merits of their claim. This ruling thus stands as a pivotal checkpoint in immigration litigation, ensuring that procedural defenses are raised promptly, or not at all.