No Fee, No Appeal: The Third Circuit Re-Affirms Strict Compliance with BIA Filing Requirements in De La Cruz-Leonardo v. Attorney General (2025)

1. Introduction

Luis Ramon De La Cruz-Leonardo, a Dominican national and lawful permanent resident of the United States, was convicted in 2023 of federal cocaine-trafficking charges. The Department of Homeland Security initiated removal proceedings, charging him as an aggravated felon (8 U.S.C. § 1101(a)(43)(B)) and as a controlled-substance offender (§ 1227(a)(2)(B)(i)). After two continuances, the Immigration Judge (IJ) denied a third continuance, sustained removability, and ordered removal.

Instead of filing a timely Board of Immigration Appeals (BIA) appeal with the required filing fee or fee-waiver request, De La Cruz-Leonardo filed a motion to reconsider the IJ’s decision. The IJ denied the motion. When the BIA dismissed his subsequent appeal—largely because his notice of appeal had lacked the fee—he petitioned the Third Circuit. The Circuit denied in part and dismissed in part, holding that:

The BIA did not violate due process by rejecting an appeal that did not include the fee or fee-waiver form.
The court lacked jurisdiction to review discretionary denial of a continuance or unexhausted challenges to the removal order.

2. Summary of the Judgment

The Third Circuit, in a non-precedential per curiam opinion, held:

Its review was limited to the BIA’s dismissal of the motion to reconsider; aggravated-felony jurisdictional bars (8 U.S.C. § 1252(a)(2)(C)) restricted review to constitutional and pure legal questions.
There was no due-process violation because the regulations expressly require a filing fee or fee-waiver form (8 C.F.R. §§ 1003.3(a)(1), 1003.38(d)), which the petitioner concededly failed to provide.
Claims attacking the IJ’s continuance ruling sounded in discretion, not law, and thus fell outside the court’s limited jurisdiction.
Equitable tolling of the 30-day appeal deadline did not apply; the petitioner identified no “extraordinary circumstances” preventing timely filing.

3. Analysis

3.1 Precedents Cited and Their Role

Paredes v. Attorney General, 528 F.3d 196 (3d Cir. 2008) – confirmed that a conviction remains final for immigration purposes despite pending collateral attacks; used to sustain removability.
Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) – set abuse-of-discretion standard for motions to reconsider; provided review lens.
Kamara v. Attorney General, 420 F.3d 202 (3d Cir. 2005) – articulated limitation of jurisdiction for aggravated felons; framework for court’s authority.
Hoxha v. Holder, 559 F.3d 157 (3d Cir. 2009) – recognized theoretical due-process review for denied continuances; court distinguished petitioner’s claim as non-colorable.
Mirambeaux v. Attorney General, 977 F.3d 288 (3d Cir. 2020) – reiterated that continuance denials are discretionary; directly on point.
Jarbough v. Attorney General, 483 F.3d 184 (3d Cir. 2007) – warned against re-casting factual/discretionary issues as due-process claims; applied to dismiss petitioner’s arguments.
Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. 2010) – persuasive authority that continuance denials do not raise legal questions; cited for comparative support.
In re Morales-Morales, 28 I. & N. Dec. 714 (BIA 2023) – BIA’s own precedent allowing equitable tolling of 30-day deadline; court found no extraordinary circumstances here.
Santos-Zacaria v. Garland, 598 U.S. 411 (2023) – Supreme Court clarified § 1252(d)(1) as non-jurisdictional but mandatory; used to bar unexhausted claims.

3.2 Legal Reasoning

The panel’s analysis proceeded in three steps:

Scope of Review. Because the petitioner was removable for an aggravated felony, § 1252(a)(2)(C) stripped jurisdiction except for constitutional issues or pure questions of law. Challenges to factual findings or discretionary decisions (such as continuances) were statutorily barred.
Proper Filing Requirements. The BIA regulations unambiguously state that a notice of appeal “must” be accompanied by (a) the filing fee or (b) a fee-waiver request. The petitioner neither paid nor requested a waiver. Consequently, the BIA properly rejected the appeal, and no due-process violation occurred because the petitioner was afforded notice of, and opportunity to comply with, the rule (Mathews v. Eldridge hearing notice prong satisfied).
Continuance Denial. The IJ’s refusal to grant a third continuance, after two previous ones and five months of preparation, fell squarely within the IJ’s discretionary docket-management authority (8 C.F.R. § 1003.29). Absent a colorable constitutional deficiency—none was articulated—the court dismissed this portion for lack of jurisdiction.

3.3 Likely Impact

Strict Enforcement of Filing Formalities. The decision underscores that even pro se litigants must comply with fee/waiver requirements. Counsel and clinics should anticipate stricter BIA gatekeeping when the fee element is missing.
Continuance Jurisprudence. Reinforces existing Third Circuit and nationwide trend: challenges to IJ continuance denials by aggravated felons rarely succeed unless grounded in specific due-process violations (e.g., inability to present evidence).
Equitable Tolling Clarity. Although the BIA allows tolling (Morales-Morales), the Third Circuit makes clear it will not override BIA discretion absent “extraordinary circumstances,” effectively putting the burden squarely on the appellant to document impediments.
Procedural Discipline in Post-Conviction Context. Criminal aliens often pursue collateral attacks in federal court; the panel reiterated (Paredes) that such attacks do not interfere with removal timelines, signaling to practitioners that status-preserving strategies must move faster.

4. Complex Concepts Simplified

Aggravated Felony. A category of offenses listed in § 1101(a)(43) that triggers near-automatic removal and strips most forms of relief.
Motion to Reconsider (Immigration). A request to the IJ or BIA to re-examine a decision for legal error; must be filed within 30 days, raising arguments previously unavailable due to oversight or error.
Continuance. Postponement of a hearing; in immigration court, granted for “good cause.” Abuse-of-discretion standard means that unless denial is arbitrary or deprives due process, appellate courts will not interfere.
Equitable Tolling. Doctrine allowing filing deadlines to be extended when extraordinary circumstances outside the litigant’s control prevent timely action.
Due Process (Immigration). Predominantly procedural: notice of the charges and a meaningful opportunity to be heard. Substantive fairness is rarely recognized in removal proceedings.

5. Conclusion

De La Cruz-Leonardo’s case did not generate sweeping new doctrine, yet it crystallizes two critical procedural principles:

Payment (or waiver) is jurisdictional at the BIA level. A notice of appeal without the required fee is a legal nullity, and its rejection does not offend due process.
Continuance denials are effectively unreviewable for aggravated felons, absent genuine constitutional infirmity.

For future litigants, the decision is a stark reminder that formal compliance with appellate rules is non-negotiable, and that discretionary docket-management decisions by IJs will rarely be second-guessed on petition for review. Although “Not Precedential,” the opinion will likely inform agency practice and counsel strategy within the Third Circuit and beyond, reinforcing a procedural rigor that shapes the immigration removal landscape.