Separate Diligence Required: Sixth Circuit Holds Petition-for-Review Efforts Do Not Excuse Untimely Motions to Reopen After Niz‑Chavez

Introduction

This commentary analyzes the Sixth Circuit’s unpublished decision in Enrique Perez‑Rodriguez v. Bondi (No. 24‑3798, decided March 26, 2025), denying a petition for review from a Board of Immigration Appeals (BIA) order that rejected an untimely motion to reopen. The case sits at the intersection of two recurring themes in removal defense: (1) the consequences of a defective Notice to Appear (NTA) under Pereira v. Sessions and Niz‑Chavez v. Garland, and (2) the strict requirements for equitable tolling of the 90‑day deadline to move to reopen.

The petitioner argued that Niz‑Chavez provided a change in law bearing on his eligibility for voluntary departure and warranted equitable tolling of the reopening deadline. The Board disagreed, and the Sixth Circuit affirmed, emphasizing that diligence in pursuing a petition for review does not, without more, demonstrate diligence in pursuing a motion to reopen. The court also underscored that arguments not raised to the BIA are unexhausted and that generalized assertions about “developing” a new legal theory are insufficient to carry the tolling burden.

Summary of the Opinion

The court reviewed the BIA’s denial of a motion to reopen for abuse of discretion and found no abuse.
The motion to reopen was filed more than two years after the 90‑day deadline, rendering it facially untimely (8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2)).
Equitable tolling failed because the petitioner did not show due diligence: Niz‑Chavez issued roughly two months after the BIA’s final decision, yet the motion to reopen was not filed until 2023. Pursuing a petition for review did not excuse inaction on reopening, and the petitioner did not explain why both could not have been pursued concurrently.
An additional argument—that two years were needed to develop legal theories after Niz‑Chavez—was unexhausted (not raised to the BIA) and, in any event, undeveloped in the Sixth Circuit briefing.
The court noted that, in this circuit, Niz‑Chavez “did not change the law” but explained what the stop‑time rule has always meant (citing Santizo‑Soto v. Garland).
Because the petition lacked merit, the motion for a stay of removal was also denied.

Background and Procedural History

2014: Petitioner, a Guatemalan national, entered without inspection and was charged as removable under 8 U.S.C. § 1182(a)(6)(A)(i). His NTA (dated May 18, 2014) lacked the time and date of the hearing.
2019: The Immigration Judge denied asylum, withholding of removal, and CAT relief after an October 8, 2019 hearing.
2021 (Feb. 26): The BIA dismissed the appeal and issued the final administrative order.
2021 (Mar. 24): Petitioner filed a petition for review in the Sixth Circuit, but it was dismissed for failure to prosecute on November 1, 2021.
2021 (Apr. 29): The Supreme Court decided Niz‑Chavez v. Garland, clarifying that a single compliant NTA with time and place is required to trigger the stop‑time rule.
2023 (Sept. 11): Petitioner moved to reopen before the BIA, arguing (i) Niz‑Chavez’s implications for his eligibility for voluntary departure and (ii) equitable tolling. (He did not pursue a jurisdictional challenge before the Sixth Circuit.)
The BIA denied reopening as untimely and declined equitable tolling. The Sixth Circuit affirmed.

Issues Presented

Did the BIA abuse its discretion by denying an untimely motion to reopen where the petitioner invoked Niz‑Chavez and requested equitable tolling?
Does diligence in pursuing a petition for review suffice to establish diligence for equitable tolling of the separate 90‑day deadline to file a motion to reopen?
What is the significance of Niz‑Chavez for voluntary departure and the stop‑time (or analogous timing) questions in removal cases?

Holdings

No abuse of discretion: the motion to reopen, filed more than two years late, was untimely and not equitably tolled.
Diligence in pursuing a petition for review does not, by itself, demonstrate diligence in pursuing a motion to reopen, particularly absent any explanation why both could not be pursued at the same time.
Arguments not raised to the BIA (e.g., that time was needed to “develop” Niz‑Chavez arguments) are unexhausted and, even if considered, undeveloped on appeal.
The panel noted circuit authority that Niz‑Chavez clarified rather than changed the law on the stop‑time rule.

Detailed Analysis

1) Precedents and Authorities Cited

Dada v. Mukasey, 554 U.S. 1 (2008) – Defines a motion to reopen as procedural relief premised on new evidence or changed circumstances since the hearing. It frames reopening as exceptional and emphasizes the regulatory 90‑day deadline.
8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2) – Establish the 90‑day deadline for motions to reopen after a final administrative decision.
Guerrero‑Lasprilla v. Barr, 589 U.S. 221 (2020) – Confirms federal court jurisdiction to review the application of equitable tolling in the immigration context (mixed questions of law and fact fall within “questions of law”).
Alizoti v. Gonzalez, 477 F.3d 448 (6th Cir. 2007); Santos‑Santos v. Barr, 917 F.3d 486 (6th Cir. 2019); Lopez v. Garland, 990 F.3d 1000 (6th Cir. 2021) – Establish the abuse‑of‑discretion standard and describe when the BIA’s decision may be disturbed (lack of rational explanation, departure from established policies, or impermissible basis).
Pereira v. Sessions, 585 U.S. 198 (2018); Niz‑Chavez v. Garland, 593 U.S. 155 (2021) – Require that an NTA include time and place information to trigger the stop‑time rule for cancellation of removal under 8 U.S.C. § 1229b(d)(1). The opinion notes this framework and its statutory anchors in § 1229(a)(1)(G)(i) and 8 C.F.R. § 1003.14(a).
Ramos Rafael v. Garland, 15 F.4th 797 (6th Cir. 2021) – Clarifies that Pereira and Niz‑Chavez do not speak to immigration court jurisdiction, undercutting jurisdictional attacks predicated on defective NTAs.
Barry v. Mukasey, 524 F.3d 721 (6th Cir. 2008); Tapia‑Martinez v. Gonzales, 482 F.3d 417 (6th Cir. 2007) – Provide the diligence‑focused framework for equitable tolling and exemplify denials where petitioners delayed despite knowing the need to act.
Santos‑Zacaria v. Garland, 598 U.S. 411 (2023); 8 U.S.C. § 1252(d)(1); Mazariegos‑Rodas v. Garland, 122 F.4th 655 (6th Cir. 2024) – Establish the exhaustion rule for issues to be preserved for judicial review.
INS v. Phinpathya, 464 U.S. 183 (1984) – Holds that counsel’s unsupported assertions in briefing do not satisfy evidentiary burdens; used here to reject bare assertions about the need for time to develop arguments.
Reyes‑Rodriguez v. Garland, No. 23‑3548, 2024 WL 1574673 (6th Cir. Apr. 11, 2024) – Confirms that failure to show diligence is independently fatal to equitable tolling.
Santizo‑Soto v. Garland, No. 23‑3468, 2024 WL 4512534 (6th Cir. Oct. 17, 2024) – States that Niz‑Chavez did not “change the law” but clarified what the stop‑time rule has always required.
Porter v. Bondi, 127 F.4th 993 (6th Cir. 2025) – Cited for the principle that undeveloped arguments are forfeited on appeal.

2) The Court’s Legal Reasoning

Untimeliness was clear. The BIA’s final order issued on February 26, 2021. Under statute and regulation, the motion to reopen was due by May 27, 2021. Filing on September 11, 2023, was well beyond the deadline. That alone required a persuasive tolling showing.
No equitable tolling because no diligence. Applying Barry/Tapia‑Martinez, the court focused on diligence, which is essential to equitable tolling. Niz‑Chavez arrived in April 2021—two months after the BIA decision—but petitioner waited more than two years to move to reopen. The Board reasonably concluded this was not diligence.
- The petitioner argued he had been diligent because he timely pursued a petition for review. The Board and the court rejected that argument: diligence in one procedural path does not automatically establish diligence in another, especially without any explanation why both could not be pursued simultaneously.
- The court cited analogous diligence cases where far shorter delays defeated tolling.
Unexhausted and undeveloped arguments. On appeal, petitioner asserted he needed two years to develop a “new” argument after Niz‑Chavez. The court refused to consider this rationale because it was not presented to the BIA (exhaustion), and in any event, it was not supported with specifics or authority in the Sixth Circuit briefing (undeveloped and forfeited).
Niz‑Chavez as clarification, not change. The panel noted circuit authority that Niz‑Chavez did not change the law but explained what the stop‑time rule has always meant. This observation further undermines any tolling claim premised on the need to await “new law.”
Voluntary departure issue not reached on the merits. The petitioner’s theory—that an NTA deficient under Niz‑Chavez/Pereira could not cut off or fix the measuring date relevant to the one‑year physical‑presence requirement for pre‑conclusion voluntary departure (8 U.S.C. § 1229c(b)(1)(A))—was never addressed on the merits. The motion failed at the threshold (untimeliness and no tolling).
Stay denied. Having determined the petition lacked merit, the court denied the motion to stay removal proceedings as a corollary outcome.

3) What This Decision Adds

Although unpublished and therefore non‑precedential, the opinion concretizes several practical rules in the Sixth Circuit:

Filing or pursuing a petition for review does not itself demonstrate diligence for purposes of equitably tolling the separate 90‑day motion‑to‑reopen deadline.
Unexplained multi‑year delays following Niz‑Chavez will not satisfy diligence.
Arguments about why delay was necessary must be exhausted before the BIA and supported with specifics; unsupported assertions will not suffice.
Within the Sixth Circuit, practitioners should treat Niz‑Chavez as a clarification rather than a “change in law” for tolling purposes.

Impact and Practical Implications

A. For Motions to Reopen Based on Defective NTAs

Act quickly. If relying on Pereira/Niz‑Chavez to challenge stop‑time effects or timing relevant to discretionary relief (such as voluntary departure), file within 90 days of the final order or build a detailed, documented case for equitable tolling.
Document diligence. A successful tolling record typically includes dated evidence of steps taken: consultations, record requests, research tasks, filing attempts, and obstacles encountered, with explanations for any gaps.
Do not rely on parallel litigation alone. Pursuit of a petition for review, standing alone, does not prove diligence on a motion to reopen. Explain why both could not be pursued concurrently, if that is the claim.
Exhaust theories before the BIA. Any rationale for delay (e.g., need to await clarifying decisions, inability to gather evidence, or counsel transition) must be presented to the Board to preserve it.

B. On Voluntary Departure and Defective NTAs

Pre‑conclusion voluntary departure requires, among other things, at least one year of continuous physical presence “immediately preceding the date the notice to appear was served” (8 U.S.C. § 1229c(b)(1)(A)). A practitioner theory post‑Niz‑Chavez is that only a compliant NTA under § 1229(a) fixes that “service” date.
This opinion does not decide the merits of that theory; it frames the issue but resolves the case on timeliness and tolling. The Sixth Circuit’s treatment leaves open that litigants must reach the merits by complying with procedural gates first.

C. Framing “Change in Law” After Niz‑Chavez

In this circuit, Niz‑Chavez is viewed as clarifying what the stop‑time rule has always required. That framing makes tolling harder for those who argue they waited for a “new” rule before acting.
Practitioners should expect courts to ask why meaningful action was not taken promptly after Pereira (2018) or, at the latest, soon after Niz‑Chavez (2021), and to demand specific evidence of diligence.

Complex Concepts Simplified

Motion to Reopen: A request to the BIA (or IJ) to revisit a final decision due to new facts or changed circumstances, ordinarily filed within 90 days. It is discretionary and strictly time‑limited.
Equitable Tolling: A doctrine that allows a late filing if the applicant shows both (1) exceptional circumstances that prevented timely filing and (2) diligence in attempting to comply. Diligence requires active, documented effort throughout the period of delay.
Notice to Appear (NTA): The charging document that initiates removal proceedings. Under Pereira and Niz‑Chavez, to trigger the stop‑time rule for cancellation of removal, it must include the time and place of the hearing.
Stop‑Time Rule (8 U.S.C. § 1229b(d)(1)): For cancellation of removal, a noncitizen’s continuous presence or residence in the U.S. ends when a proper NTA is served. An NTA lacking time/place does not trigger stop‑time under Pereira/Niz‑Chavez.
Voluntary Departure (8 U.S.C. § 1229c): Discretionary permission to depart the U.S. at one’s own expense in lieu of a removal order. Pre‑conclusion voluntary departure has specific eligibility criteria, including one year of continuous presence before service of a compliant NTA. The interaction between Niz‑Chavez and that timing requirement remains the subject of ongoing litigation, but this case does not reach the merits due to untimeliness.
Exhaustion (8 U.S.C. § 1252(d)(1)): A party must present issues to the BIA before asking a court of appeals to review them. Arguments raised for the first time in the court of appeals are generally unreviewable.
Abuse of Discretion: A deferential standard under which the court asks whether the BIA’s decision had a rational explanation, adhered to established policies, and avoided impermissible bases (e.g., discrimination). If yes, the decision stands.

Key Takeaways

Deadlines matter. The 90‑day clock for reopening is unforgiving absent a well‑supported showing of equitable tolling.
Diligence is distinct and must be shown for the specific filing at issue. Work on a separate litigation track (like a petition for review) does not automatically establish diligence for reopening.
Exhaustion and development are essential. Reasons for delay must be presented to the BIA and supported with concrete facts and authority.
In the Sixth Circuit, do not premise tolling on the claim that Niz‑Chavez “changed” the law. The court views Niz‑Chavez as clarifying existing statutory meaning, tightening the path to tolling.
This decision does not resolve how Niz‑Chavez affects eligibility for voluntary departure on the merits; it underscores that reaching that question depends first on satisfying procedural thresholds.

Conclusion

Perez‑Rodriguez reinforces a stringent, process‑first message: even potentially meritorious arguments grounded in Pereira/Niz‑Chavez will not be heard if courts conclude that reopening efforts were dilatory and inadequately explained. The Sixth Circuit’s emphasis on separate diligence for each procedural vehicle, its insistence on issue exhaustion, and its understanding of Niz‑Chavez as a clarification rather than a legal sea change collectively signal a high bar for equitable tolling in late reopening cases. For practitioners, the opinion is a roadmap of what must be done—and documented—if one hopes to overcome the 90‑day deadline and present Pereira/Niz‑Chavez‑based claims, including those tied to voluntary departure timing.