No Reset of the Reopening Clock After Withdrawal: IJ’s Decision Is the Final Administrative Order for the 90‑Day Motion-to-Reopen Deadline under 8 C.F.R. § 1003.4

Case: Julio Connor-Molina v. U.S. Attorney General (11th Cir., Aug. 29, 2025) — unpublished, non-argument calendar, per curiam

Introduction

This petition for review stems from the Board of Immigration Appeals’ (BIA) denial of a motion to reopen removal proceedings filed by Julio Cesar Connor‑Molina, a Honduran national. The motion sought to revive his proceedings to apply for cancellation of removal and to press a defect-in-Notice-to-Appear (NTA) objection under Pereira v. Sessions and Niz‑Chavez v. Garland. The Eleventh Circuit denied the petition, upholding the BIA’s determination that the motion was untimely.

The decision squarely addresses a recurring procedural question: when a noncitizen voluntarily withdraws a BIA appeal, from which date does the 90‑day deadline to file a motion to reopen run? Relying on 8 C.F.R. § 1003.4, the panel confirms that the immigration judge’s (IJ’s) decision is the final administrative order “as if no appeal had been taken,” and the clock for reopening runs from the IJ’s order—not from the later BIA notice acknowledging withdrawal. The court also rejects attempts to reset the clock based on intervening case law, and clarifies that Clement v. U.S. Attorney General (which deemed a BIA order recognizing a withdrawn appeal to be a reviewable “final order” under 8 U.S.C. § 1252) does not alter the motion-to-reopen deadline analysis.

Parties: - Petitioner: Julio Cesar Connor‑Molina - Respondent: U.S. Attorney General

Summary of the Judgment

Holding: The BIA did not abuse its discretion in denying Connor‑Molina’s motion to reopen as untimely. Under 8 C.F.R. § 1003.4, when an administrative appeal is withdrawn, the IJ’s decision becomes the “final” administrative order “to the same extent as if no appeal had been taken,” and the 90‑day reopening period under INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i) runs from the IJ’s decision date.
Clement distinguished: Clement decided a different question—reviewability under § 1252 of a BIA order recognizing withdrawal—not how to measure the reopening deadline after a withdrawal. It does not displace § 1003.4 for timeliness purposes.
Equitable tolling: Not warranted. The petitioner withdrew his appeal and delayed raising his NTA-based claim well after controlling decisions (Pereira, Niz‑Chavez, and Perez‑Sanchez) were available. No “extraordinary circumstances” and diligence were shown.
Other issues: Because the motion was untimely, the court did not reach the petitioner’s prima facie eligibility for cancellation of removal or the NTA-defect arguments.
Result: Petition for review denied.

Factual and Procedural Background

1999: DHS’s predecessor (INS) serves an NTA lacking date/time; venue later transferred to Miami. Certificate of service notes in‑person service and oral Spanish advisals.
2001: Petitioner fails to appear; IJ issues in absentia removal order. Later that year, IJ grants an unopposed motion to reopen; proceedings administratively closed in 2002 at both parties’ request.
2019–2020: Case recalendared at petitioner’s request for adjustment of status; IJ denies adjustment and orders removal (June 29, 2020), finding negative discretionary factors and adverse credibility.
2022: Petitioner voluntarily withdraws his BIA appeal; BIA records the withdrawal on June 21, 2022. He does not seek judicial review of that BIA order.
September 2022: Petitioner moves to reopen, asserting NTA defects under Pereira and Niz‑Chavez, and seeks cancellation of removal based on continuous presence and hardship to his elderly U.S.-citizen mother.
BIA (single-member) denies reopening as untimely; notes forfeiture of the NTA claim; finds no prima facie case for cancellation. Petitioner seeks Eleventh Circuit review.

Key Issues Presented

Does a voluntary withdrawal of a BIA appeal make the IJ’s order the final administrative order for the 90‑day reopening deadline under INA § 240(c)(7)(C)(i)?
Does Clement v. U.S. Attorney General reset or affect that deadline?
Is equitable tolling available where the petitioner withdrew his appeal and waited to raise NTA-defect arguments after Pereira, Niz‑Chavez, and Perez‑Sanchez?
Must the court reach cancellation-of-removal eligibility if the motion is untimely?

The Court’s Legal Analysis

1) Timeliness: 8 C.F.R. § 1003.4 controls when an appeal is withdrawn

The court affirms the BIA’s application of 8 C.F.R. § 1003.4, which provides that when an appeal is withdrawn (and no decision has issued), the “initial decision shall be final to the same extent as if no appeal had been taken.” Accordingly, the 90‑day filing period for a motion to reopen runs from the IJ’s June 29, 2020 decision—rendering the September 2022 motion untimely. The panel notes the petitioner did not challenge the regulation’s validity or applicability. Given that omission, it was neither arbitrary nor capricious for the BIA to follow its rule.

Standard of review principles underscored this approach: - Denials of motions to reopen are reviewed for abuse of discretion, with underlying legal conclusions reviewed de novo (Dacostagomez-Aguilar). - Motions to reopen are “disfavored,” and the petitioner bears a heavy burden (Mei Ya Zhang). - The court reviews only the grounds invoked by the BIA (Gonzalez, recognizing Loper Bright’s partial abrogation on other grounds).

2) Clement does not reset the reopening clock

The petitioner relied on Clement v. U.S. Attorney General to argue his motion was within 90 days of the BIA’s June 2022 notice acknowledging his withdrawal. The Eleventh Circuit distinguished Clement as addressing a different question—whether a BIA order deeming an appeal withdrawn is a reviewable “final order” under § 1252—not how to compute the 90‑day reopening deadline. Clement did not discuss § 1003.4 or the effect of a withdrawal on reopening timeliness. Thus, it posed no obstacle to the BIA’s reliance on § 1003.4 here.

Notably, the panel acknowledged that Clement “arguably sits in some tension” with § 1003.4, because Clement treats the BIA’s withdrawal order as a reviewable “final order,” while § 1003.4 treats the case as if no appeal had been taken for administrative finality. But the court did not resolve that tension because the petitioner did not challenge § 1003.4’s validity or applicability.

3) Equitable tolling: not warranted on this record

Although the petitioner referenced intervening BIA decisions—Matter of Fernandes (2022) and Matter of Aguilar Hernandez (2024)—the panel treated this argument, at most, as an undeveloped request for equitable tolling. The court reiterated that the 90‑day deadline is a non-jurisdictional claim-processing rule subject to equitable tolling (Avila‑Santoyo), but tolling requires “extraordinary circumstances” beyond the litigant’s control, coupled with diligence (Sandvik; Hunter; Lawrence).

Two facts proved fatal: - The petitioner himself withdrew his administrative appeal “after careful review,” a choice within his control. - He waited to raise Pereira/Niz‑Chavez/Perez‑Sanchez arguments until well after those decisions were issued, and he did not explain his delay or why he failed to raise the issues in his now-withdrawn appeal.

Given the lack of diligence and the absence of extraordinary circumstances, tolling was unwarranted.

4) Other arguments rendered moot by untimeliness

Because untimeliness independently supported the BIA’s decision, the court did not reach: - The BIA’s alternative holding that the petitioner failed to show prima facie eligibility for cancellation of removal; or - The merits of the NTA-defect claim (including waiver/forfeiture).

Consistent with INS v. Bagamasbad, courts and agencies need not decide issues unnecessary to the outcome.

Precedents and Authorities Discussed

Procedural standards and scope of review - Dacostagomez‑Aguilar v. U.S. Att’y Gen., 40 F.4th 1312 (11th Cir. 2022) — abuse-of-discretion review of reopening denials; legal issues de novo. - Ferreira v. U.S. Att’y Gen., 714 F.3d 1240 (11th Cir. 2013) — arbitrary/capricious standard in discretionary review. - Mei Ya Zhang v. U.S. Att’y Gen., 572 F.3d 1316 (11th Cir. 2009) — motions to reopen are disfavored. - Gonzalez v. U.S. Att’y Gen., 820 F.3d 399 (11th Cir. 2016), abrogated in part on other grounds by Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024) — review limited to BIA’s stated grounds.
Timeliness and finality - INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i) — 90‑day deadline for motions to reopen. - 8 C.F.R. § 1003.4 — effect of appeal withdrawal: IJ decision becomes final “as if no appeal had been taken.”
Reviewability - Clement v. U.S. Att’y Gen., 75 F.4th 1193 (11th Cir. 2023) — a BIA order deeming an appeal voluntarily withdrawn is a reviewable “final order” under § 1252; does not govern the reopening deadline calculation post‑withdrawal.
Equitable tolling - Avila‑Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc) — 90‑day deadline is claim‑processing and subject to equitable tolling. - Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999); Hunter v. Ferrell, 587 F.3d 1304 (11th Cir. 2009); Lawrence v. Florida, 421 F.3d 1221 (11th Cir. 2005), aff’d, 549 U.S. 327 (2007) — tolling requires extraordinary circumstances and diligence; applied sparingly.
Defective NTA jurisprudence and claim-processing - Pereira v. Sessions, 585 U.S. 198 (2018); Niz‑Chavez v. Garland, 593 U.S. 155 (2021) — strict statutory notice requirements under INA § 239(a). - Perez‑Sanchez v. U.S. Att’y Gen., 935 F.3d 1185 (11th Cir. 2019) — NTA defects are claim‑processing, not jurisdictional, and can be forfeited if not timely raised. - Matter of Fernandes, 28 I. & N. Dec. 605 (BIA 2022); Matter of Aguilar Hernandez, 28 I. & N. Dec. 774 (BIA 2024) — BIA’s evolving treatment of § 239(a) objections; not relevant to reset the statutory deadline.
BIA sua sponte reopening - Lenis v. U.S. Att’y Gen., 525 F.3d 1291 (11th Cir. 2008); Butka v. U.S. Att’y Gen., 827 F.3d 1278 (11th Cir. 2016); 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) — limited or no jurisdiction to review BIA’s refusal to reopen sua sponte absent a constitutional claim.

Why the Court Reached This Result

Textual anchor in the regulation: Section 1003.4 unambiguously instructs that upon withdrawal of an appeal, the IJ’s decision is final for agency purposes. The petitioner did not argue the regulation conflicts with the statute (a potentially opening post‑Loper Bright question in other cases), so the BIA correctly applied it.
Doctrinal clarity on distinct “finality” concepts: A “final order” for judicial review under § 1252 (as in Clement) is not the same inquiry as the “final administrative order” that triggers the statutory 90‑day reopening period. The panel cabined Clement to its reviewability holding.
Equitable tolling requires diligence: New or clarifying decisions alone seldom justify tolling. Here, controlling precedent predated the motion by years, and the petitioner chose to withdraw an appeal that could have been a vehicle for timely raising the claim-processing objection (cf. the panel’s practice note observing that a motion to remand could have avoided timeliness issues).
Judicial restraint: Having a dispositive untimeliness ground, the court declined to reach alternative grounds (prima facie eligibility, NTA defect forfeiture), consistent with Bagamasbad.

Impact and Practical Implications

No “reset” of the reopening clock upon withdrawal: In the Eleventh Circuit, practitioners should assume that voluntarily withdrawing a BIA appeal makes the IJ’s decision the operative “final administrative order” for the 90‑day reopening deadline under § 240(c)(7)(C)(i), by force of § 1003.4. Filing a motion to reopen more than 90 days later will generally be untimely.
Clement is not a timeliness escape hatch: While a BIA order acknowledging withdrawal may be a reviewable “final order” under § 1252, it does not change the reopening deadline calculation post‑withdrawal. Counsel should not rely on the BIA’s “withdrawal notice date” to compute the 90‑day period.
Raise Pereira/Niz‑Chavez objections early and preserve them: Because NTA defects are claim‑processing, not jurisdictional, they can be waived/forfeited if not timely raised. Delaying until a motion to reopen—especially far beyond 90 days—risks forfeiture and untimeliness.
Equitable tolling demands specifics: To even have a chance, develop a detailed chronology demonstrating diligence and an extraordinary impediment beyond the client’s control. Mere changes in decisional law usually won’t suffice, particularly after long delays or strategic withdrawals.
Use motions to remand strategically: If new arguments or evidence arise while an appeal is pending, consider a motion to remand to the IJ rather than withdrawing the appeal and later attempting to reopen. As the panel noted, this approach can avoid timeliness traps.
Potential future litigation: The panel flagged a possible “tension” between Clement and § 1003.4 but did not resolve it. A litigant who squarely challenges § 1003.4’s validity post‑Loper Bright might prompt a more direct reconciliation of reviewability-finality and administrative-finality in a future published case.
Unpublished but persuasive: Although nonprecedential, the decision aligns with established Eleventh Circuit doctrine on motions to reopen, equitable tolling, and claim‑processing rules, and thus is likely to be persuasive authority.

Complex Concepts Simplified

Motion to Reopen: A request to the immigration court/BIA to re-open a closed case to consider new facts, evidence, or legal arguments. Generally must be filed within 90 days of the final administrative order.
Final Administrative Order: For reopening purposes, the decision that triggers the 90‑day deadline. After a BIA appeal is withdrawn, 8 C.F.R. § 1003.4 treats the IJ’s decision as that final order “as if no appeal had been taken.”
Final Order for Judicial Review: The decision that allows a federal court to take jurisdiction under 8 U.S.C. § 1252. Clement held that a BIA order acknowledging withdrawal is reviewable, but that does not govern the reopening deadline.
Claim‑Processing vs. Jurisdictional Rules: Claim‑processing rules (like many notice requirements) govern the orderly processing of a case and can be waived or forfeited. Jurisdictional rules cannot be waived. The Eleventh Circuit treats NTA defects as claim‑processing (Perez‑Sanchez), meaning late-raised objections can be lost.
Equitable Tolling: A rare exception that pauses a filing deadline when (1) extraordinary circumstances beyond the litigant’s control prevented timely filing, and (2) the litigant acted diligently. It is applied sparingly.
Sua Sponte Reopening: The BIA’s discretionary power to reopen cases on its own, even if untimely. Courts rarely have jurisdiction to review refusals to exercise this power, absent a constitutional claim.

Conclusion

This decision crystallizes a practical and important procedural rule in the Eleventh Circuit: after a voluntary withdrawal of a BIA appeal, the IJ’s decision is the operative “final administrative order” for purposes of the 90‑day motion-to-reopen deadline. The reopening clock does not restart upon the BIA’s later acknowledgment of the withdrawal, and Clement—addressing reviewability—does not change that. Equitable tolling remains available in theory but demands concrete, extraordinary circumstances and diligent pursuit; neither was present here.

For practitioners, the message is clear. Preserve claim-processing objections early, avoid strategic withdrawals that foreclose timely reopening, and use motions to remand when appropriate. While unpublished, the ruling coheres with established Eleventh Circuit doctrine and will likely guide future litigation strategy and BIA practice across the circuit.