Lux-Lux v. Bondi: Forfeiture of Niz-Chavez–Based NTA Defects When Not Timely Raised

Introduction

Diego Andrés Lux-Lux, an indigenous Guatemalan, entered the United States as a minor in 2015 and sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An Immigration Judge (IJ) denied relief and the Board of Immigration Appeals (BIA) affirmed. After the Supreme Court’s 2021 decision in Niz-Chavez v. Garland, which held that a Notice to Appear (NTA) must contain all statutory elements in one document—including the exact time and place of hearing—Lux-Lux moved to reopen his case, arguing that his 2016 NTA was defective because it lacked those particulars. The BIA denied reopening as untimely, holding that any objection to an NTA’s defects is forfeited if not raised during the underlying proceedings, but granted limited remand for voluntary departure consideration.

The Sixth Circuit, applying abuse-of-discretion review, has now denied Lux-Lux’s petition for review, cementing the rule that a Niz-Chavez-type challenge to a deficient NTA is a claim-processing defense that must be timely asserted or is forfeited.

Summary of the Judgment

• Holding. The BIA did not abuse its discretion by denying reopening; Lux-Lux forfeited his NTA defect argument by waiting until after final administrative proceedings concluded.
• Standard of Review. Abuse of discretion for motions to reopen.
• Key Rationale. Claim-processing rules are mandatory only if timely invoked. Under Matter of Fernandes, objections must be raised before the close of pleadings. Lux-Lux had ample opportunity (2019–2023) to object, especially after Niz-Chavez (2021) and Matter of Fernandes (2022) were decided.
• Outcome. Petition for review denied; limited remand for voluntary departure stands.

Analysis

1. Precedents Cited and Their Influence

• Niz-Chavez v. Garland, 593 U.S. 155 (2021)
  The Supreme Court required all §1229(a)(1) information to appear in a single NTA. Lux-Lux relied on it to argue his NTA was void. The Sixth Circuit agreed the NTA was defective but said the defect was claim-processing, not jurisdictional, and therefore waivable.
• Pereira v. Sessions, 585 U.S. 198 (2018)
  Earlier foundational decision clarifying the “stop-time rule.” It foreshadowed Niz-Chavez by stressing specificity in NTAs but left open whether subsequent notices could cure defects. Its logic undergirded Lux-Lux’s argument but was not dispositive.
• Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022)
  Announced that NTA defects must be challenged before pleadings close; failure to do so forfeits the claim. The Sixth Circuit adopted this timing requirement.
• Sixth Circuit cases: Santos-Santos (2019), Ramos Rafael (2021), Zuniga-Martinez (2022), Bains (2024), Palma-Campos (2025)
  These cases progressively characterized NTA defects as claim-processing issues rather than jurisdictional bars and required timely assertion.
• Other Circuits: Seventh (Meraz-Saucedo), Eighth (Amador-Morales), Ninth (Gomez-Ortuno), Fourth (Villagrana-Fernandez), Second (Penaranda Arevalo)
  The opinion collected cross-circuit authority showing a growing consensus that late-raised NTA defects are waived.

2. Legal Reasoning

The court’s reasoning is anchored in the distinction between jurisdictional rules (which cannot be waived) and claim-processing rules (which can). Although §1229(a)(1) sets out mandatory NTA requirements, the Sixth Circuit—following its own precedent—treats them as claim-processing because Congress did not clearly withdraw the agency’s jurisdiction for non- compliance. Therefore:

1. An NTA lacking date/time is defective but still vests the IJ with jurisdiction.
2. Because it is a claim-processing rule, the defect must be raised “at a specified time.” Under Fernandes, that time is prior to the close of pleadings.
3. Untimely objections are forfeited. Lux-Lux’s challenge, first raised in a motion to reopen months after the BIA’s merits decision, was too late.
4. A motion to reopen is discretionary and “disfavored”; the BIA’s refusal to reopen absent new evidence or extraordinary circumstances was rational.
5. The Sixth Circuit found no “inexplicable departure” from policy, nor any bias—hence no abuse of discretion.

3. Potential Impact

• Procedural Vigilance. Non-citizens and counsel must raise Niz-Chavez or Pereira challenges immediately, preferably at the master calendar hearing.
• Finality of Proceedings. The ruling buttresses administrative finality: motions to reopen cannot be used as “second bites” for previously available procedural arguments.
• Uniform National Approach. By aligning with other circuits, the decision reduces forum shopping and predicts eventual Supreme Court approval of the forfeiture principle.
• Attorney Malpractice Exposure. Practitioners who fail to timely object to NTA defects may face ineffective-assistance claims; this opinion heightens that risk.
• Voluntary Departure Strategy. Lux-Lux still gained a limited remand for voluntary departure. Counsel may increasingly request such relief when NTA challenges are deemed forfeited.

Complex Concepts Simplified

• Notice to Appear (NTA). The charging document that initiates removal proceedings. Think of it as the “summons and complaint” in immigration court.
• Claim-Processing Rule. A procedural rule that parties must follow, but that can be waived if not timely invoked—like a statute of limitations in civil cases.
• Motion to Reopen. A request for the immigration court to look at a closed case again because something significant has changed (new evidence or new law).
• Abuse of Discretion Review. The appellate court asks: did the agency act irrationally, ignore its own rules, or rely on impermissible factors? If not, it affirms even if it might have decided differently.
• Voluntary Departure. A discretionary benefit allowing a non-citizen to leave the U.S. at their own expense within a set time, avoiding some of the penalties associated with formal removal.

Conclusion

The Sixth Circuit’s decision in Lux-Lux v. Bondi crystallizes an emerging national consensus: defects in an NTA—no matter how fundamental post-Niz-Chavez—must be asserted during the initial removal proceedings. Failure to do so irrevocably forfeits the argument. This ruling promotes finality, underscores the procedural acumen expected of immigration practitioners, and signals that future litigants cannot rely on motions to reopen as a back-door remedy for earlier oversights. Going forward, the case will likely be cited whenever a petitioner belatedly invokes Niz-Chavez, reaffirming that timeliness is the linchpin of procedural defenses in immigration court.