Forfeiture of Claims-Processing Challenges to Defective Notices to Appear in Immigration Proceedings

Introduction

This commentary examines the Eleventh Circuit’s decision in Santa I. Espinoza v. U.S. Attorney General, No. 24-12369 (11th Cir. June 2, 2025), which clarifies the distinction between jurisdictional defects and claims-processing defects in removal proceedings arising from a deficient Notice to Appear (“NTA”). Petitioner Santa Espinoza challenged the Board of Immigration Appeals’ (“BIA”) denial of her motions to reconsider and to reopen her removal proceedings. She argued (1) her NTA was defective under Pereira v. Sessions and (2) the BIA added improper exhaustion requirements. The Eleventh Circuit dismissed her challenges to the underlying removal order as untimely and denied relief on her procedural arguments, holding that claims-processing objections to an NTA may be forfeited if not raised at the proper time.

Key issues:

• Jurisdictional vs. claims-processing rules in removal proceedings
• Timeliness and exhaustion of challenges to a deficient NTA
• Standards for motions to reopen and motions to reconsider before the BIA

Parties:

• Petitioner: Santa I. Espinoza, a non-citizen subject to removal
• Respondent: U.S. Attorney General

Summary of the Judgment

The Court held:

1. Espinoza’s petition for review of the BIA’s dismissal of her underlying removal appeal was filed more than 30 days after the final removal order and is therefore untimely. The Court lacks jurisdiction to review the merits of her removal relief claims.
2. The Court retains jurisdiction over the BIA’s denial of Espinoza’s motions to reopen and reconsider but finds no abuse of discretion.
3. Under Pereira and its Eleventh Circuit progeny, a defective NTA does not deprive the immigration court of jurisdiction but constitutes a non-jurisdictional, claims-processing rule that must be timely raised or is forfeited.
4. Espinoza forfeited her claims-processing objection to the NTA by failing to raise it before the BIA dismissed her appeal.

The petition for review was dismissed in part (untimely challenges to the final removal order) and denied in part (procedural challenges to the NTA and BIA decisions).

Analysis

Precedents Cited

• Pereira v. Sessions, 585 U.S. 198 (2018): Held that a Notice to Appear missing time/place cannot trigger the “stop-time” rule for cancellation of removal.
• Niz-Chavez v. Garland, 593 U.S. 155 (2021): Confirmed an NTA must be a single document containing all § 1229(a)(1) information.
• Perez-Sanchez v. U.S. Attorney Gen., 935 F.3d 1148 (11th Cir. 2019): Classified § 1229(a) and 8 C.F.R. § 1003.14 as claims-processing, not jurisdictional, rules.
• Avila-Santoyo v. U.S. Attorney Gen., 713 F.3d 1357 (11th Cir. 2013): Held a 90-day filing deadline for motions to reopen is non-jurisdictional and subject to forfeiture.
• Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Confirmed exhaustion requirement under 8 U.S.C. § 1252(d)(1) is non-jurisdictional.
• Kontrick v. Ryan, 540 U.S. 443 (2004): Reasoned that a late claim-processing objection in bankruptcy proceedings may be forfeited.
• BIA decisions Matter of Fernandes and Matter of O-S-G- regarding procedures to cure defective NTAs.

Legal Reasoning

1. Jurisdiction vs. Claims-Processing. The court reaffirmed that a defective NTA does not strip the immigration court of jurisdiction; it merely violates claim-processing rules that govern procedure. Jurisdictional limits cannot be cured by later notices, but procedural defects can be waived if not timely objected to.

2. Forfeiture of Objections. Espinoza timely objected before the Immigration Judge but did not pursue her claims-processing challenge before the BIA until her motion to reopen/reconsider. Under Eleventh Circuit precedent, such objections become forfeited once the BIA adjudicates the appeal on the merits, because the party has “waited too long” to raise them.

3. Standards for Motions. Motions to reconsider must specify errors of law or fact; mere repackaging of prior arguments is insufficient. Motions to reopen must present new, material, previously unavailable evidence. Espinoza’s filings did neither as to her NTA challenge.

Impact

This decision has three primary effects:

1. It sends a clear message that practitioners must raise procedural defects (like deficient NTAs) at the earliest opportunity—ideally before or during BIA briefing—not in belated motions to reopen or reconsider.
2. It strengthens the distinction between jurisdictional and non-jurisdictional rules in removal proceedings—reinforcing that “Pereira defects” do not hollow out the court’s power but can be waived.
3. It underscores the high bar for reopening or reconsideration—non-citizens must bring forward genuinely new, material evidence or pinpoint specific errors of law/fact, rather than retrying old arguments.

Complex Concepts Simplified

• Notice to Appear (NTA): The charging document that starts removal proceedings. Under 8 U.S.C. § 1229(a)(1), it must specify time, date, and place of the hearing.
• Stop-Time Rule: A rule that ends the continuous presence period for cancellation of removal when an NTA is served. An NTA missing required information does not trigger this rule.
• Jurisdictional Rules: Rules that define a court’s power and cannot be waived or tolled unless Congress says so.
• Claims-Processing Rules: Procedural rules that prescribe how and when parties must raise certain objections. These can be forfeited if not timely invoked.
• Motion to Reconsider: A request to the BIA to review its own decision based on errors of law or fact in that decision.
• Motion to Reopen: A request to present new, material evidence that was not previously available.

Conclusion

Espinoza v. U.S. Attorney General crystallizes the principle that defects in NTAs, while potentially significant for relief calculations, do not deprive courts of jurisdiction and must be raised as non-jurisdictional, claims-processing objections in a timely manner or face forfeiture. The decision reinforces procedural discipline in immigration litigation and clarifies the stringent standards for BIA motions to reconsider and reopen. Future petitioners and practitioners should take heed: procedural objections to removal documents must be asserted at the earliest possible stage to preserve them for judicial review.