Niz-Chavez Does Not Equitably Toll Time/Number Bars for Successive Motions to Reopen When Cancellation Eligibility Arose Only After an In Absentia Order

Introduction

In Patricio Nieves Tenecela v. U.S. Attorney General (11th Cir. May 8, 2026) (unpublished), the Eleventh Circuit reviewed the Board of Immigration Appeals’ (“BIA”) denial of Patricio Luciano Nieves Tenecela’s fourth motion to reopen an in absentia removal order entered in 2007. Nieves Tenecela, a native and citizen of Ecuador, was initially served with a Notice to Appear (“NTA”) that did not list a hearing date or time, and later received a Notice of Hearing (“NOH”) (served on counsel) specifying the date, time, and place of the hearing he ultimately missed.

The central issues were: (1) whether the BIA abused its discretion by refusing to equitably toll the time and numerical limits on motions to reopen based on Niz-Chavez v. Garland, given that a defective NTA does not trigger the “stop-time” rule for cancellation of removal; and (2) whether the court could review (or remand regarding) the BIA’s refusal to reopen sua sponte.

Summary of the Opinion

The court denied the petition insofar as it challenged the BIA’s application of the time and number bars and the refusal to equitably toll. The court held the BIA acted within its discretion in concluding that Niz-Chavez did not constitute an “extraordinary circumstance” warranting equitable tolling where the petitioner’s eligibility for cancellation of removal arose only through the natural passage of time after the final order.

The court dismissed the petition insofar as it sought review of the BIA’s refusal to reopen sua sponte, holding that such decisions are generally unreviewable in the Eleventh Circuit and that no colorable constitutional claim was presented.

Analysis

Precedents Cited

1) Standards of review and the disfavored nature of reopening

  • Flores-Panameno v. U.S. Att'y Gen., 913 F.3d 1036 (11th Cir. 2019) and Jiang v. U.S. Att'y Gen., 568 F.3d 1252 (11th Cir. 2009): The court applied abuse-of-discretion review, asking whether the BIA acted arbitrarily or capriciously.
  • Zhang v. U.S. Att'y Gen., 572 F.3d 1316 (11th Cir. 2009): Reinforced that motions to reopen are “particularly disfavored,” increasing the petitioner’s burden.

2) Time/number limits and equitable tolling

  • Bing Quan Lin v. U.S. Att'y Gen., 881 F.3d 860 (11th Cir. 2018), overruled in part on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Cited for the “one motion” rule (with the partial overruling noted as unrelated to that point).
  • Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc) and Hamilton v. U.S. Att'y Gen., 138 F.4th 1312 (11th Cir. 2025): Established that time and number limits are generally subject to equitable tolling upon diligence plus extraordinary circumstances.
  • Arthur v. Thomas, 739 F.3d 611 (11th Cir. 2014) and Outler v. United States, 485 F.3d 1273 (11th Cir. 2007): Provided the key principle the panel applied here—changes in decisional law generally are not “extraordinary circumstances” for tolling.

3) In absentia rescission and notice

  • Campos-Chaves v. Garland, 602 U.S. 447 (2024): The opinion relies heavily on this case to interpret 8 U.S.C. § 1229a(b)(5)(C)(ii), emphasizing that rescission for lack of notice requires showing non-receipt of the notice corresponding to the hearing that was missed.
  • Dacostagomez-Aguilar v. U.S. Att'y Gen., 40 F.4th 1312 (11th Cir. 2022): Used to distill the notice rule: “only one form of notice is required” for a lawful in absentia removal, and it must be for the missed hearing.

4) Stop-time rule and defective NTAs

  • Pereira v. Sessions, 585 U.S. 198 (2018) and Niz-Chavez v. Garland, 593 U.S. 155 (2021): The panel accepted the stop-time holdings: a defective NTA lacking time/place does not trigger stop-time, and a later NOH cannot cure that defect for stop-time purposes.
  • Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019): Provided procedural history: the BIA previously relied on it to treat a later NOH as curing the NTA for stop-time—an approach later rejected by Niz-Chavez.
  • Perez-Sanchez v. U.S. Att'y Gen., 935 F.3d 1148 (11th Cir. 2019): Crucial to rejecting the jurisdictional argument: a defective NTA does not strip the immigration court of jurisdiction to enter a valid removal order.

5) Petition-for-review timing and scope; and sua sponte reopening reviewability

  • Riley v. Bondi, 606 U.S. 259 (2025): Cited to explain that the 30-day filing rule in 8 U.S.C. § 1252(b)(1) is non-jurisdictional but enforceable when invoked by the government, which limited review to the March 31, 2025 denial.
  • Butka v. U.S. Att'y Gen., 827 F.3d 1278 (11th Cir. 2016) and Lenis v. U.S. Att'y Gen., 525 F.3d 1291 (11th Cir. 2008): Established that the court lacks jurisdiction to review the BIA’s refusal to reopen sua sponte.
  • Arias v. U.S. Att'y Gen., 482 F.3d 1281 (11th Cir. 2007): Prevented recharacterizing a discretionary dispute as a constitutional claim to create jurisdiction.

Legal Reasoning

  1. No jurisdictional defect from the defective NTA. Even if the NTA lacked time and date, Perez-Sanchez v. U.S. Att'y Gen. foreclosed the argument that this defect deprived the immigration court of jurisdiction to order removal.
  2. No statutory rescission basis for the in absentia order was shown. The court emphasized the statutory rescission pathways in 8 U.S.C. § 1229a(b)(5)(C):
    • Exceptional circumstances rescission requires a motion within 180 days; this motion was filed many years later and did not tie the NTA defect to the failure to appear.
    • Lack of notice rescission requires showing non-receipt of the notice for the missed hearing. Under Campos-Chaves v. Garland and Dacostagomez-Aguilar v. U.S. Att'y Gen., receipt of the NOH identifying the time/place for the May 2007 hearing (served on counsel) was enough to render the in absentia order lawful.
  3. Equitable tolling was reasonably denied. The BIA concluded, and the court agreed, that Niz-Chavez did not create an “extraordinary circumstance” warranting tolling here. The key factual point was timing: Nieves Tenecela was ordered removed in 2007—before he accumulated ten years’ physical presence and before he acquired qualifying relatives. Thus, his later eligibility for cancellation of removal was not something he was prevented from timely pursuing by stop-time doctrine; it arose only through the passage of time after a final order.
  4. Successive litigation reinforced the BIA’s discretion. The court noted the petitioner had already raised substantially similar Niz-Chavez arguments in a third motion to reopen (denied in July 2023), and he did not seek judicial review of that denial. The fourth motion largely rehashed the same theory, supporting the BIA’s reliance on the number bar and its refusal to toll.
  5. No review of sua sponte reopening refusal. Under Butka v. U.S. Att'y Gen. and Lenis v. U.S. Att'y Gen., the court dismissed the request to remand for sua sponte reopening, and under Arias v. U.S. Att'y Gen. rejected the attempt to frame the dispute as a due process violation without a colorable constitutional error tied to the denial of the fourth motion.

Impact

  • Limits on “Niz-Chavez-as-tolling” arguments. The decision underscores that, in the Eleventh Circuit, Niz-Chavez (a favorable stop-time ruling) will not automatically excuse untimely or successive reopening attempts—particularly where the petitioner was not eligible for cancellation at the time of the original proceedings and became eligible only later through accrued time and new family ties.
  • Reinforces the post-Campos-Chaves notice framework for in absentia rescission. Even if an NTA is defective, a later NOH for the missed hearing can defeat a “lack of notice” rescission theory, shifting litigation away from NTA defects and toward proof of non-receipt (or other statutory bases) tied to the missed hearing.
  • Confirms the wall against judicial review of sua sponte reopening denials. The dismissal portion reiterates that discretionary sua sponte reopening is largely insulated from appellate review absent a genuine, colorable constitutional claim.
  • Procedural lesson on preserving review. The opinion’s reliance on Riley v. Bondi highlights that, while the 30-day filing deadline may be non-jurisdictional, it will still be enforced when the government invokes it—narrowing review to the most recent BIA order and preventing collateral attacks on older denials.

Complex Concepts Simplified

In absentia removal
A removal order entered because the noncitizen did not appear at the scheduled hearing after being given legally sufficient notice.
Motion to reopen (time and number limits)
A request to restart removal proceedings. Typically, a person gets only one such motion and must file it within strict deadlines, unless an exception applies.
Equitable tolling
A doctrine that can excuse late filing if the person acted diligently and some extraordinary obstacle prevented timely action. The court emphasized that a later change in case law is usually not “extraordinary.”
Stop-time rule
A rule that can stop the accumulation of continuous physical presence needed for cancellation of removal when the government serves a qualifying “notice to appear.” After Niz-Chavez, that notice must be a single document containing required information.
Paragraph (1) vs. Paragraph (2) notice
The statute allows notice via different provisions. After Campos-Chaves, rescinding an in absentia order for “lack of notice” requires showing non-receipt of the notice that corresponds to the hearing that was missed; receiving a proper NOH for that hearing can be enough even if the original NTA was defective.
Sua sponte reopening
The BIA’s discretionary power to reopen a case on its own initiative. In the Eleventh Circuit, denials of such reopening are generally not reviewable by the courts.

Conclusion

The Eleventh Circuit’s decision delivers a clear, practice-shaping message: even though Niz-Chavez v. Garland can preserve a noncitizen’s continuous-presence accrual for cancellation of removal by preventing stop-time from being triggered by a defective NTA, that doctrinal development does not necessarily translate into equitable tolling of the strict time and numerical limits governing motions to reopen—especially when eligibility for relief did not exist at the time of the in absentia order and arises only later through the natural passage of time.

Additionally, the court’s reliance on Campos-Chaves v. Garland confirms that a properly served NOH for the missed hearing generally defeats rescission efforts premised on NTA defects alone, and its jurisdictional holdings reiterate that appellate review does not extend to the BIA’s refusal to reopen sua sponte absent a truly colorable constitutional claim.