Post-Order Eligibility Under Pereira/Niz-Chavez Does Not Equitably Toll Time- and Number-Barred Reopening for Non-LPR Cancellation

1. Introduction

Petitioner Ying Zhang, a citizen of the People’s Republic of China, sought Second Circuit review of a BIA decision denying her motion for reconsideration of the denial of her third motion to reopen. The reopening effort aimed (as relevant on appeal) to pursue cancellation of removal for nonpermanent residents under 8 U.S.C. § 1229b(b)(1).

The core issues were procedural rather than merits-based: whether Zhang could overcome the strict time and number limits on motions to reopen by invoking equitable tolling and stop-time developments following Pereira v. Sessions and Niz-Chavez v. Garland; and whether the BIA abused its discretion in denying reconsideration.

2. Summary of the Opinion

The Second Circuit denied the petition for review, holding that its review was confined to the BIA’s denial of reconsideration and that the BIA did not abuse its discretion. Zhang’s 2018 motion to reopen was both untimely (filed far beyond 90 days after the final removal order) and number-barred (her third motion), and her reliance on Pereira/Niz-Chavez did not justify equitable tolling.

Even accepting that a defective notice to appear did not trigger the stop-time rule, the court emphasized that Zhang was independently ineligible for non-LPR cancellation during her 2006 proceedings and during the 90-day reopening window thereafter because she lacked a qualifying relative and had not accrued ten years’ continuous physical presence. The court further noted that it lacked jurisdiction to review the BIA’s “entirely discretionary” decision not to reopen sua sponte, and it declined to reach the BIA’s alternative merits rationale under INS v. Bagamasbad.

3. Analysis

3.1. Precedents Cited

• Kaur v. BIA, 413 F.3d 232 (2d Cir. 2005): Used to define the scope of review—when a petition challenges only the denial of reconsideration, the court reviews only that determination, not the underlying removal order or earlier reopening denials.
• Jin Ming Liu v. Gonzales, 439 F.3d 109 (2d Cir. 2006): Provides the functional definition of reconsideration: a request for the Board to reexamine its decision due to additional legal arguments, change in law, or an overlooked aspect. This frames Zhang’s burden to identify specific legal or factual error in the prior BIA ruling.
• Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008): Supplies the abuse-of-discretion standard for denial of reconsideration, reinforcing the deference owed to the agency on such procedural motions.
• Poradisova v. Gonzales, 420 F.3d 70 (2d Cir. 2005): Elaborates what constitutes abuse of discretion (arbitrary/capricious action, no rational explanation, unexplained departure from policy, or conclusory reasoning). The court relied on this benchmark to conclude the BIA’s decision was adequately reasoned.
• Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Applied to abandonment: arguments raised to the agency but not pursued in the court of appeals are deemed abandoned. This narrowed the issues to non-LPR cancellation and tolling.
• Cupete v. Garland, 29 F.4th 53 (2d Cir. 2022): Foreclosed Zhang’s jurisdictional challenge premised on a notice to appear omitting hearing information; the omission does not deprive the immigration court of jurisdiction if later cured by a hearing notice.
• Doe v. United States, 76 F.4th 64 (2d Cir. 2023): Cited for the “extraordinary circumstance” requirement for equitable tolling, anchoring the court’s analysis that tolling is exceptional, not routine.
• Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000): Identifies paradigmatic extraordinary circumstances (e.g., ineffective assistance of counsel, fraud, or concealment preventing timely filing). The court used this to underscore that mere later eligibility for relief is not comparable.
• Pereira v. Sessions, 585 U.S. 198 (2018): Recognized that an NTA must include time and place information to trigger the “stop-time rule” for cancellation; the court accepted the premise that Zhang’s NTA defect meant her presence continued to accrue.
• Niz-Chavez v. Garland, 593 U.S. 155 (2021): Held a later hearing notice cannot cure an NTA defect for stop-time purposes; this strengthened Zhang’s stop-time position but did not solve her reopening/tolling problem.
• Yan Lan Hong v. McHenry, No. 23-7028, 2025 WL 384713 (2d Cir. Feb. 4, 2025) (summary order): Used as persuasive, on-point support: Niz-Chavez does not justify equitable tolling when the petitioner did not accrue the required continuous presence until after the reopening deadline had already expired.
• Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006): Establishes that denials of sua sponte reopening are “entirely discretionary” and generally unreviewable, limiting judicial oversight once statutory reopening is unavailable.
• INS v. Bagamasbad, 429 U.S. 24 (1976): Supports the court’s choice not to reach issues unnecessary to the result—here, the BIA’s alternative finding that Zhang failed to establish a prima facie case for cancellation.

3.2. Legal Reasoning

The court’s reasoning proceeds in a structured sequence typical of Second Circuit immigration motion practice:

• Step 1: Constrain the inquiry to reconsideration. Under Kaur v. BIA, the petition placed only the reconsideration denial before the court, requiring Zhang to show the BIA committed legal or factual error in refusing to reconsider its prior reopening denial.
• Step 2: Apply reopening’s strict procedural bars. The governing statutes permit one motion to reopen within 90 days of the final order (8 U.S.C. § 1229a(c)(7)(A), (C)(i)). Zhang’s 2018 motion was her third and filed more than a decade after finality in October 2006; it did not fall within statutory/regulatory exceptions (8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)).
• Step 3: Treat stop-time doctrine as analytically distinct from reopening deadlines. The court accepted that, under Pereira v. Sessions and Niz-Chavez v. Garland, Zhang’s defective NTA did not stop her continuous presence for cancellation calculations. But that only affected substantive eligibility timing; it did not itself create a statutory exception to reopening’s time/number limits.
• Step 4: Reject equitable tolling because no “extraordinary circumstance” prevented timely reopening. Drawing on Doe v. United States and Iavorski v. INS, the court held that becoming newly eligible for relief after removal proceedings (outside the changed-country-conditions asylum context) is not an extraordinary circumstance. Critically, Zhang was not eligible during the original proceedings or the 90-day reopening window anyway—she lacked a qualifying relative and could not have accrued ten years’ presence until 2008 (based on a 1998 entry after a prior removal order). The stop-time cases did not change those independent timing facts.
• Step 5: Note, but do not review, sua sponte reopening. Without tolling, the only remaining pathway would have been sua sponte reopening “at any time” (8 C.F.R. § 1003.2(a)), but Zhang did not challenge that denial and, in any event, Ali v. Gonzales bars jurisdictional review of that discretionary call.
• Step 6: Avoid unnecessary merits determinations. Having affirmed the dispositive procedural basis (untimely/number-barred without tolling), the court invoked INS v. Bagamasbad to bypass the BIA’s alternative prima facie merits ruling.

3.3. Impact

Although nonprecedential, the order reflects (and reinforces) several operational realities in Second Circuit practice:

• Stop-time victories do not equal reopening victories. Even where Pereira/Niz-Chavez improves cancellation eligibility calculations, petitioners must still satisfy reopening’s time/number rules or show genuine equitable-tolling grounds.
• Equitable tolling remains narrowly cabined. The court treated later-arising eligibility (e.g., acquiring a qualifying relative, accruing ten years) as common and insufficiently “extraordinary,” signaling that tolling will usually require impediments like ineffective assistance, fraud, or concealment that actually prevented timely filing.
• Procedural posture drives outcomes. By limiting review to reconsideration and applying abandonment principles, the court underscores that issue preservation and framing can be dispositive in petitions for review.
• Sua sponte reopening is a thin reed on appeal. With Ali v. Gonzales limiting judicial review, petitioners often cannot obtain appellate correction of the BIA’s refusal to exercise sua sponte authority.

4. Complex Concepts Simplified

• Motion to reopen vs. motion to reconsider: A motion to reopen asks to restart proceedings based on new facts or evidence; a motion to reconsider argues the agency made a legal or factual mistake in its prior decision (8 U.S.C. § 1229a(c)(6)(A)).
• Time and number limits: Generally, a person may file only one motion to reopen, and it must be filed within 90 days of the final removal order (8 U.S.C. § 1229a(c)(7)(A), (C)(i)).
• Equitable tolling: A judge-made doctrine that can excuse a missed deadline only when an “extraordinary circumstance” prevented timely filing (e.g., ineffective assistance or fraud), and not merely because the person later became eligible for relief.
• Non-LPR cancellation of removal: A discretionary remedy requiring (among other things) ten years of continuous physical presence and “exceptional and extremely unusual hardship” to a qualifying relative (8 U.S.C. § 1229b(b)(1)(A), (D)).
• Stop-time rule: A statutory rule that can cut off accrual of physical presence when certain events occur. Pereira and Niz-Chavez limit when an NTA triggers stop-time if it lacks required hearing information.
• Sua sponte reopening: The BIA’s discretionary power to reopen “at any time” (8 C.F.R. § 1003.2(a)); denials are generally not reviewable in the Second Circuit.

5. Conclusion

The Second Circuit upheld the BIA’s denial of reconsideration because Zhang’s third motion to reopen was untimely and number-barred, and Pereira/Niz-Chavez did not supply equitable tolling where she was independently ineligible for non-LPR cancellation during the original proceedings and within the statutory reopening window. The decision highlights a recurrent post-Niz-Chavez theme: correcting stop-time calculations may matter for substantive eligibility, but it does not, by itself, unlock long-expired reopening deadlines absent truly extraordinary tolling circumstances.