No Equitable Tolling for Post-Order Eligibility: Second Circuit Denies Untimely Reopening for Non-LPR Cancellation in Wang v. Bondi

Court: U.S. Court of Appeals for the Second Circuit (Summary Order – nonprecedential)

Date: November 5, 2025

Panel: Circuit Judges Bianco, Menashi, and Robinson

Docket: 23-7169

Introduction

In Wang v. Bondi, the Second Circuit denied a petition for review challenging the Board of Immigration Appeals’ (BIA) refusal to reopen removal proceedings so that the petitioner, Lan Fang Wang, could apply for non–lawful permanent resident (non-LPR) cancellation of removal. Wang, a citizen of China, entered the United States in 2001, was ordered removed in 2005, and moved to reopen in 2021—more than sixteen years after her removal order became final. She argued that developments in stop-time jurisprudence (Niz-Chavez v. Garland) and the hardship standard (as reviewed under Wilkinson v. Garland) warranted reopening, and that the BIA erred both in finding her motion untimely and in declining to exercise its sua sponte authority.

The case presents familiar, recurring issues in post–Niz-Chavez litigation: whether a defective notice to appear (NTA) that omits a hearing date allows continued accrual of presence for cancellation purposes; whether new eligibility that arises years after a final order supports equitable tolling of the 90-day reopening deadline; the scope of judicial review over hardship determinations after the Supreme Court’s decision in Wilkinson; and the strict regulatory requirements for motions to reopen (including the obligation to submit the application for relief with the motion).

Although this is a summary order and thus not precedential under the Second Circuit’s rules, it is a clear, comprehensive reaffirmation of several controlling principles that will influence future litigation strategy in motions to reopen for cancellation of removal.

Summary of the Opinion

Untimeliness: The motion to reopen, filed in 2021, was far outside the 90-day deadline under 8 U.S.C. § 1229a(c)(7)(C)(i). Cancellation-based reopening does not fall within any statutory or regulatory exception to the deadline.
No equitable tolling: Tolling requires an “extraordinary circumstance” that prevented timely filing (e.g., ineffective assistance, fraud). Wang identified none. Crucially, her ineligibility at the time of the final order and during the 90-day window—not any legal error later corrected by Niz-Chavez—prevented timely reopening.
Stop-time and eligibility timing: Even crediting continued accrual of presence due to a defective NTA under Niz-Chavez, Wang lacked the required 10 years of continuous presence before the 2005 final order or before the reopening deadline elapsed. Her claimed qualifying relatives (U.S.-citizen children) were not in existence during the reopening window; the oldest child was born after the time to reopen expired.
Regulatory noncompliance and abandonment: Wang did not submit the cancellation application with her motion as required by 8 C.F.R. § 1003.2(c)(1). She did not challenge this independent ground on petition, thereby abandoning it.
No prima facie case for cancellation: The BIA permissibly found that Wang’s hardship assertions—financial and emotional impact on children—did not distinguish her case from the “ordinary” hardship attendant to a parent’s removal. The agency is presumed to have considered the evidence.
Sua sponte reopening unreviewable: The BIA’s denial of sua sponte reopening under 8 C.F.R. § 1003.2(a) is “entirely discretionary” and generally unreviewable. No remand was warranted under the limited misperception-of-law exception; the BIA did not misapprehend governing standards.
Jurisdictional limits post-Wilkinson: The court may review legal questions, including application of the hardship standard to established facts, but it lacks jurisdiction to review the agency’s underlying factual findings about hardship.

Detailed Analysis

Precedents and Authorities Cited

Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008): Sets the standard of review for motions to reopen (abuse of discretion for the ultimate denial; substantial evidence for factual findings) and articulates the “realistic chance” prima facie standard for reopening.
Luna v. Holder, 637 F.3d 85 (2d Cir. 2011): Confirms de novo review for constitutional claims and questions of law.
Wilkinson v. Garland, 601 U.S. 209 (2024): Clarifies that courts may review application of the “exceptional and extremely unusual hardship” standard to established facts as a legal question. But courts still lack jurisdiction over disputes about underlying factual determinations embedded in hardship decisions. The panel relies on Wilkinson both to recognize review of mixed questions and to reaffirm the jurisdictional bar over pure factual disputes.
Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005): Jurisdictional provisions applicable to final orders also apply to motions to reopen, limiting review to legal and constitutional issues for discretionary relief.
8 U.S.C. § 1252(a)(2)(B), (D): Statutory limits on judicial review of discretionary relief, with a carve-out for constitutional claims and questions of law.
8 U.S.C. § 1229a(c)(7)(C)(i): The 90-day deadline for motions to reopen final removal orders; cancellation is not an enumerated exception.
Doe v. United States, 76 F.4th 64 (2d Cir. 2023); Jin Bo Zhao v. INS, 452 F.3d 154 (2d Cir. 2006); Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000): Set the framework for equitable tolling in immigration reopening: tolling applies only where an “extraordinary circumstance” prevented timely filing and the petitioner exercised due diligence.
8 U.S.C. § 1229b(b)(1): Statutory criteria for non-LPR cancellation: 10 years’ continuous physical presence, good moral character, no disqualifying offenses, and “exceptional and extremely unusual hardship” to a qualifying relative (U.S. citizen or LPR spouse, parent, or child).
Niz-Chavez v. Garland, 593 U.S. 155 (2021): The “single document” rule for the stop-time provision; a deficient NTA that lacks date/time does not trigger the stop-time rule.
8 C.F.R. § 1003.2(c)(1), (3): A motion to reopen for new relief must attach the application and supporting evidence; cancellation-based reopening is not within the regulatory exceptions to time/number limitations.
Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Issues not argued in the petitioner's brief are abandoned.
In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001): Seminal BIA decision defining “exceptional and extremely unusual hardship” as hardship “substantially beyond” the ordinary consequences of removal.
Xiao Ji Chen v. DOJ, 471 F.3d 315 (2d Cir. 2006): Presumption that the agency considered all evidence unless the record compellingly suggests otherwise.
8 C.F.R. § 1003.2(a); Li Chen v. Garland, 43 F.4th 244 (2d Cir. 2022); Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009); Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006): Sua sponte reopening is “entirely discretionary” and generally unreviewable; remand is permissible only where the BIA declines to exercise discretion due to a misperception of the law.
In re J-J-, 21 I. & N. Dec. 976 (BIA 1997): Sua sponte authority is not a “general cure for filing defects”; newly arising eligibility does not, standing alone, constitute an “exceptional circumstance.”

Legal Reasoning

Timeliness and the absence of exceptions:
The statutory 90-day deadline for motions to reopen in § 1229a(c)(7)(C)(i) controlled. Non-LPR cancellation is not within any enumerated exception in § 1229a(c)(7)(C) or 8 C.F.R. § 1003.2(c)(3). Wang’s 2021 filing thus required equitable tolling to proceed.
Equitable tolling and post-order eligibility:
Applying Doe, Jin Bo Zhao, and Iavorski, the court held that tolling requires an extraordinary circumstance that prevented timely filing. The opinion identifies two obstacles that are not “extraordinary circumstances”:
- Lack of eligibility during the 90-day window: Even accepting that the NTA’s defect meant presence continued accruing under Niz-Chavez, Wang entered in 2001 and had not accrued 10 years by 2005 (final order) or by the end of the 90-day reopening period. She therefore could not have filed a meritorious motion within the deadline, and her ineligibility—not any legal impediment—explains the delay.
- Post-deadline qualifying relatives: Wang’s cancellation theory hinged on hardship to U.S.-citizen children. But her oldest child was born after the reopening deadline expired. Post-deadline emergence of a qualifying relative does not toll the deadline.
The court also rejected the notion that Niz-Chavez furnishes tolling here: even if the NTA was defective, Niz-Chavez did not change the dispositive fact that Wang lacked 10 years of presence and a qualifying relative during the relevant time frame.
Regulatory compliance and abandonment:
Independently, 8 C.F.R. § 1003.2(c)(1) requires that a motion to reopen “for the purpose of submitting an application for relief” be accompanied by that application and supporting evidence. Wang did not attach her cancellation application. On petition, she failed to challenge this ground, rendering it abandoned (Debique).
Prima facie case for cancellation:
As an alternative ground, the BIA found no prima facie showing of “exceptional and extremely unusual hardship.” The Second Circuit affirmed. Wang’s assertions of financial and emotional/psychological harm were generic and indistinguishable from the ordinary hardship inherent in a parent’s removal (Monreal-Aguinaga). Under Jian Hui Shao’s “realistic chance” standard, such cursory allegations do not justify reopening. The panel also invoked Xiao Ji Chen’s presumption that the agency considered all evidence absent a compelling contrary indication—none was shown.
Scope of review after Wilkinson:
The court recognized that, under Wilkinson, it may review the application of the hardship standard to established facts as a legal question. But it cannot review factual findings underlying hardship, including in the reopening context. Wang’s contentions did not identify a legal error in the BIA’s articulation or application of the hardship standard; they essentially contested the weight and sufficiency of her evidence, which is not reviewable.
Sua sponte reopening:
The BIA’s refusal to exercise sua sponte authority under § 1003.2(a) is “entirely discretionary” and unreviewable (Li Chen; Ali), subject to a narrow exception where the BIA declines to act based on a misperception of the law (Mahmood). The panel found no misperception: the BIA correctly understood the hardship standard, the prima facie threshold, and its discretion to deny sua sponte reopening even where a prima facie showing exists. Consistent with In re J-J-, the BIA concluded that becoming eligible for relief after a final order is not an exceptional circumstance justifying sua sponte reopening.

Impact and Practical Implications

No tolling for “eligibility ripening” after final orders: Petitioners cannot rely on the fact that time-based eligibility or new qualifying relatives materialize years after a final order to toll the reopening deadline. The window for equitable tolling remains tied to extraordinary circumstances preventing timely filing, not later life developments.
Niz-Chavez is not a universal key to reopening: Even where a deficient NTA is conceded, Niz-Chavez will not rescue a motion to reopen if the noncitizen could not have satisfied statutory eligibility within the original 90-day window.
Strict compliance with 8 C.F.R. § 1003.2(c)(1): Always file the completed application (e.g., Form EOIR-42B for cancellation) and supporting documentation with the motion. Failure to do so is an independent—and potentially dispositive—basis for denial. If not challenged on petition, it is abandoned.
Hardship pleading standards matter: Prima facie showings must delineate how the claimed hardship exceeds the ordinary consequences of removal, with specific, individualized evidence (e.g., unique medical, educational, or caretaking factors). Generic hardship allegations will fail.
Jurisdictional guardrails post-Wilkinson: While courts may review whether the agency correctly applied the hardship standard to established facts, they will not second-guess the agency’s underlying factual findings. Litigants should frame arguments as legal misapplications (if supportable) rather than as disputes over evidence weighing.
Sua sponte is not a backstop: Because sua sponte reopening is largely unreviewable and reserved for exceptional cases, parties should not bank on it to cure untimeliness or to reach newly ripened eligibility.
Planning and timing for cancellation claims: This order underscores the importance of filing for cancellation while proceedings are pending if the 10-year presence and qualifying-relative criteria will be met before finality, or promptly moving to reopen within 90 days once eligibility exists and extraordinary circumstances can be shown.

Complex Concepts Simplified

Motion to reopen: A request to the BIA to reopen a concluded case so new evidence or new relief can be considered. It must be filed within 90 days of the final order unless an exception or equitable tolling applies.
Equitable tolling: A doctrine allowing late filings when an extraordinary circumstance (like ineffective assistance or fraud) prevented timely filing and the person acted diligently. Simply becoming eligible later does not qualify.
Stop-time rule and Niz-Chavez: Normally, service of a proper NTA stops the clock for continuous physical presence. Under Niz-Chavez, an NTA lacking the hearing date does not stop the clock. Still, a noncitizen must meet the 10-year requirement within relevant procedural windows.
Non-LPR cancellation of removal: Discretionary relief requiring: (1) 10 years of continuous physical presence, (2) good moral character, (3) no disqualifying crimes, and (4) “exceptional and extremely unusual hardship” to a qualifying relative (U.S. citizen or LPR spouse, parent, or child).
Prima facie showing for reopening: The petitioner must show a realistic chance of success on the merits. For cancellation, that means specific, individualized facts indicating hardship far beyond what a family ordinarily experiences from a parent’s removal.
Sua sponte reopening: The BIA’s discretionary power to reopen a case on its own motion in exceptional situations. Courts generally cannot review denials of this relief.
Review of hardship after Wilkinson: Courts can review whether the agency correctly applied the legal standard for hardship to the established facts, but cannot reweigh or reassess the facts themselves.

Conclusion

The Second Circuit’s summary order in Wang v. Bondi reinforces several bedrock principles in reopening jurisprudence. First, the 90-day deadline for motions to reopen is strict, and equitable tolling will not rescue a motion premised on eligibility that ripened years after finality. Second, Niz-Chavez’s stop-time clarification does not support reopening where the petitioner lacked statutory eligibility during the relevant period. Third, the regulatory requirement to submit the relief application with the motion is mandatory and independently dispositive if ignored. Fourth, prima facie hardship for cancellation requires more than generalized allegations of financial and emotional strain. Finally, the decision traces the post-Wilkinson jurisdictional boundary: appellate courts may review legal applications of the hardship standard but not factual findings, and they cannot review discretionary denials of sua sponte reopening absent a misperception of law.

Though nonprecedential, the order offers a precise roadmap for practitioners: verify eligibility timelines, meet strict filing and evidentiary requirements, articulate individualized hardship, and recognize the limited utility of post-order developments and sua sponte reopening to overcome untimeliness. As such, Wang serves as a salient reminder that cancellation strategies must be planned and pursued within the constraints of both statutory eligibility and procedural deadlines.