Procedural Bars Prevail: Untimely/Number-Barred Reopening and Forfeited NTA Defect Challenges in Removal Proceedings

1. Introduction

Lourdes Verenice Hernandez Sorto v. Attorney General United States of America concerns a Salvadoran national who entered the United States in 2011 as a minor and was charged as removable for being present without admission or parole under 8 U.S.C. § 1182(a)(6)(A)(i). After conceding removability, she pursued relief including asylum and withholding of removal. While her case was pending, she married a U.S. citizen in 2015 and sought administrative closure to pursue a provisional unlawful presence waiver (Form I-601A) based on an approved I-130 petition filed by her spouse. The Immigration Judge (IJ) denied administrative closure and denied relief; the Board of Immigration Appeals (BIA) dismissed her appeal on May 18, 2023. She did not petition for review of that 2023 BIA decision.

The litigation instead focuses on later, post-decision motions: (1) a 2023 motion to reopen to pursue nonpermanent-resident cancellation of removal under 8 U.S.C. § 1229b(b) premised on a defective Notice to Appear (NTA) theory tied to the stop-time rule; and (2) a 2024 motion to reconsider/reopen/terminate, invoking her approved I-130 and the then-announced “Keeping Families Together” (KFT) program. The Third Circuit’s opinion addresses whether the BIA abused its discretion in denying those motions and whether the court could review the BIA’s refusal to act sua sponte.

2. Summary of the Opinion

The Third Circuit denied in part and dismissed in part the petition for review. It held:

  • The BIA did not abuse its discretion in denying the motion to reconsider as untimely and the motion to reopen as time-barred and number-barred, and thus the BIA was not required to reach the underlying merits.
  • Equitable tolling did not assist petitioner because she did not properly present a tolling basis to the BIA that could overcome the procedural defaults; her KFT-based argument also failed because the program had been vacated.
  • The BIA did not abuse its discretion in denying termination based on an allegedly defective NTA because petitioner forfeited the objection by raising it only after proceedings concluded; moreover, she acknowledged the defect did not deprive the immigration court of jurisdiction and she showed no prejudice.
  • The court lacked jurisdiction to review the BIA’s refusal to reopen or reconsider sua sponte.

3. Analysis

A. Precedents Cited

1) Judicial review, standards, and jurisdictional limits

  • Nocon v. I.N.S., 789 F.2d 1028 (3d Cir. 1986): Cited in the court’s jurisdiction discussion under 8 U.S.C. § 1252(a), reinforcing that the petition for review route is governed by statutory and precedential constraints.
  • Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005): Supplies the abuse-of-discretion standard for reviewing denials of motions to reopen or reconsider—reversal only if “arbitrary, irrational, or contrary to law.”
  • Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir. 2003): Controls the court’s dismissal for lack of jurisdiction over the BIA’s discretionary decision not to reopen or reconsider sua sponte, because the BIA retains “unfettered discretion” to decline that relief.

2) Stop-time rule, defective NTAs, and timing of objections

  • Pereira v. Sessions, 585 U.S. 198 (2018): Recognizes that a defective NTA (missing time/place) does not trigger the stop-time rule for cancellation of removal. Petitioner relied on this to argue she accrued the ten years of continuous physical presence needed for 8 U.S.C. § 1229b(b).
  • Niz- Chavez v. Garland, 593 U.S. 155 (2021): Referenced in a harmless-error context; the Third Circuit noted any failure to discuss it in the later denial was harmless because the BIA had addressed it in the earlier motion-to-reopen denial and still found no prima facie eligibility.
  • In re Fernandes, 28 I. & N. Dec. 605 (BIA 2022) and In re Nchifor, 28 I. & N. Dec. 585 (BIA 2022): Cited for the proposition that objections to NTA defects can be forfeited/waived if not timely raised, supporting the BIA’s conclusion that raising the defect only after proceedings concluded was too late.
  • Nkomo v. Att'y Gen., 930 F.3d 129 (3d Cir. 2019): Confirms a defective NTA does not deprive the immigration court of jurisdiction—undercutting termination arguments framed as “jurisdictional.”
  • Penaranda Arevalo v. Bondi, 130 F.4th 325 (2d Cir. 2025): Used to support the standard of review (abuse of discretion) applicable to denial of a motion to terminate.

3) Reopening doctrine, prima facie eligibility, and equitable tolling

  • INS v. Abudu, 485 U.S. 94 (1988): Recognizes the agency may deny a motion to reopen for failure to establish a prima facie case for the relief sought; here, used to validate denial of reopening where the asserted basis (KFT) did not present viable relief.
  • Nkomo v. Att'y Gen., 986 F.3d 268 (3d Cir. 2021): Provides the equitable-tolling test for reopening deadlines (“diligently” pursued rights + “extraordinary circumstance” preventing timely filing) and notes petitioners need not use “magic words” to present tolling, but must still fairly put the issue before the BIA.
  • Texas v. U.S. Dep't of Homeland Sec., No. 6:24- cv-00306, 2024 WL 4711951 (E.D. Tex. Nov. 7, 2024): Cited for the fact that the KFT program had been vacated, undermining petitioner’s argument that a new DHS program justified reopening.
  • Yuan v. Att'y Gen., 642 F.3d 420 (3d Cir. 2011) and Suchite-Salguero v. Att'y Gen., 147 F.4th 355 (3d Cir. 2025): Applied to support harmless-error review in immigration cases, including after “the narrowing of the Chenery doctrine,” to conclude any omission about Niz-Chavez did not affect the outcome.

B. Legal Reasoning

1) Procedural default as a complete basis to deny reopening/reconsideration

The court accepted the BIA’s strict enforcement of statutory and regulatory limits on post-order motions:

  • Motion to reconsider: must be filed within 30 days of the challenged decision under 8 U.S.C. § 1229a(c)(6)(B). Petitioner’s reconsideration request was filed beyond that period.
  • Motion to reopen: generally must be filed within 90 days of the final administrative decision under 8 U.S.C. § 1229a(c)(7)(C)(i) and is generally limited to one motion under 8 U.S.C. § 1229a(c)(7)(A). The BIA found this motion both time- and number-barred, and that no statutory exceptions applied.

Because the motions were denied on those procedural grounds—and petitioner did not meaningfully challenge the correctness of those grounds—the court held the BIA was not required to reach the merits of her underlying claims. The court also rejected the framing of this as a due process violation: denial on valid procedural grounds does not itself create a due process problem.

2) Equitable tolling required proper presentation and a viable extraordinary circumstance

Under Nkomo v. Att'y Gen., 986 F.3d 268, equitable tolling requires diligence plus an extraordinary circumstance preventing timely filing. The court emphasized two practical barriers for petitioner:

  • Issue presentation: before the BIA, petitioner argued timeliness rather than building a tolling record; she also did not address the reconsideration deadline at the agency level.
  • Lack of a viable tolling anchor: petitioner’s arguable “new development” was the “Keeping Families Together” program, but the BIA noted it had been vacated (citing Texas v. U.S. Dep't of Homeland Sec.), and under INS v. Abudu reopening can be denied where prima facie eligibility is not shown.

3) Termination based on defective NTA was forfeited and non-jurisdictional

Petitioner sought termination because her NTA allegedly lacked time/place information required by 8 U.S.C. § 1229(a)(1). The BIA rejected this as forfeited because she raised it only after her proceedings concluded, relying on In re Fernandes and In re Nchifor.

The Third Circuit affirmed. Critically, it held petitioner’s argument that the “legal defect” became available only later was incorrect: Pereira v. Sessions was decided while her case was still before the IJ, so she could have timely raised the issue. The court also emphasized petitioner’s acknowledgment that defective NTAs do not strip jurisdiction under Nkomo v. Att'y Gen., 930 F.3d 129, and noted she did not show prejudice.

4) Harmless error foreclosed remand over Niz-Chavez discussion

Petitioner argued the BIA failed to analyze the “intervening law” of Niz- Chavez v. Garland. The court treated any omission as harmless because the BIA had addressed Niz-Chavez in the earlier motion-to-reopen denial and still found no prima facie cancellation eligibility, citing Yuan v. Att'y Gen. and Suchite-Salguero v. Att'y Gen.

C. Impact

  • Procedural rigor in motion practice: The opinion reinforces that time and number limits can be dispositive; a litigant who does not directly contest those limits on appeal is unlikely to obtain merits review.
  • Early assertion of NTA defects: Even where Pereira v. Sessions and Niz- Chavez v. Garland provide substantive leverage (stop-time arguments), failure to raise NTA objections during ongoing proceedings risks forfeiture under In re Fernandes and In re Nchifor.
  • Limited utility of evolving DHS programs as reopening grounds: The KFT-related discussion illustrates the fragility of relying on new policy initiatives—especially when vacated—and the continued centrality of INS v. Abudu prima facie requirements.
  • Sua sponte reopening remains largely insulated: The ruling reiterates, via Calle-Vujiles v. Ashcroft, that refusals to exercise sua sponte authority are generally unreviewable, narrowing appellate pathways when procedural deadlines lapse.

4. Complex Concepts Simplified

  • Motion to reopen vs. motion to reconsider: A motion to reopen usually presents new facts or evidence and is typically due within 90 days; a motion to reconsider argues the agency made a legal or factual error and is typically due within 30 days.
  • Time-barred / number-barred: “Time-barred” means filed after the statutory deadline; “number-barred” means the law generally allows only one motion to reopen.
  • Equitable tolling: A doctrine that can excuse late filing if the person diligently pursued their rights but an extraordinary obstacle prevented timely filing.
  • Notice to Appear (NTA): The charging document that starts removal proceedings. Some NTAs omit the hearing’s time/place, which matters for certain statutory consequences.
  • Stop-time rule: A rule that can stop a noncitizen from accruing the continuous physical presence needed for cancellation of removal; Pereira v. Sessions held a defective NTA does not trigger stop-time.
  • Jurisdiction vs. claim-processing/forfeiture: Even if an NTA is defective, it may not deprive the immigration court of power to hear the case (jurisdiction). Instead, it can be an objection that must be timely raised or it may be forfeited.
  • Prima facie eligibility: The requirement to show, at least on paper, enough facts to suggest eligibility for the relief sought; without it, reopening can be denied under INS v. Abudu.
  • Sua sponte reopening: The BIA’s discretionary power to reopen on its own initiative; under Calle-Vujiles v. Ashcroft, refusals are generally not reviewable by the court of appeals.
  • Harmless error: Even if the agency makes a mistake, the court will not remand if it is highly probable the error did not change the outcome (per Yuan v. Att'y Gen. and Suchite-Salguero v. Att'y Gen.).

5. Conclusion

This decision underscores a practical and often outcome-determinative principle in immigration litigation: procedural compliance in post-order motion practice is paramount. The Third Circuit affirmed that when motions to reconsider or reopen are untimely or number-barred—and no properly raised, viable equitable-tolling theory applies—the BIA may deny the motions without reaching underlying relief theories. It also reinforces that defective-NTA arguments tied to Pereira v. Sessions must be raised during proceedings or risk forfeiture, particularly where the defect is non-jurisdictional under Nkomo v. Att'y Gen., 930 F.3d 129. Finally, it reiterates that courts generally cannot review the BIA’s refusal to act sua sponte, leaving timely motion practice and issue preservation as the primary tools for litigants seeking reopening.