Tenth Circuit Reinforces Timeliness and Non-Jurisdictional Treatment of Defective NTAs
Commentary on Lopez-Vega v. Garland, No. 24-9537 (10th Cir. July 2 2025)

Introduction

Lopez-Vega v. Garland is the latest decision in the wake of Niz-Chavez v. Garland, addressing whether a Notice to Appear (NTA) that omits the date and time of a first hearing deprives an Immigration Court of jurisdiction. The petitioner, José Manuel Lopez-Vega, a Mexican national who arrived in the United States as a child, asked the Tenth Circuit to overturn the Board of Immigration Appeals’ (BIA) refusal to reopen his completed removal case. The issues raised included:

  • Whether Niz-Chavez constitutes a “change in law” requiring reopening when the alleged NTA defect was never timely raised;
  • Whether an NTA lacking date and time information is a jurisdictional defect after Martinez-Perez v. Barr;
  • Whether the BIA abused its discretion by declining to accept a five-month–late appeal brief; and
  • The limited reviewability of the BIA’s refusal to reopen sua sponte.

Summary of the Judgment

A unanimous Tenth Circuit panel (Judges Bacharach, Carson, and Rossman) denied Lopez-Vega’s petition for review, holding that:

  1. The absence of date and time on the 2013 NTA is a non-jurisdictional, claim-processing defect under binding circuit precedent (Martinez-Perez v. Barr).
  2. Because Lopez-Vega did not object to the NTA until after his case was completed, the objection was untimely and therefore waived under BIA precedents Matter of Nchifor and Matter of Fernandes.
  3. Niz-Chavez did not supply “new facts” or a change in law that justified reopening; it pre-dated the petitioner’s own decision to forgo other relief and seek voluntary departure.
  4. The court lacked jurisdiction to second-guess the BIA’s refusal to reopen sua sponte because the denial was not premised on legal error.
  5. The BIA did not abuse its discretion or violate due process when it refused to accept a brief filed five months after the (already-extended) deadline.

Detailed Analysis

A. Precedents Cited and Their Influence

  1. Martinez-Perez v. Barr, 947 F.3d 1273 (10th Cir. 2020)
    Established that defects in NTAs (such as missing date/time) are non-jurisdictional; they are “claim-processing” rules. The Tenth Circuit followed this case rigidly, binding both the BIA and itself to the same conclusion.
  2. Niz-Chavez v. Garland, 593 U.S. 155 (2021)
    Held that, for “stop-time” purposes in cancellation of removal, the government must serve a single document containing all required NTA information. Lopez-Vega attempted to enlarge Niz-Chavez to jurisdictional territory; the court resisted, noting that Niz-Chavez did not overrule Martinez-Perez on jurisdiction.
  3. Estrada-Cardona v. Garland, 44 F.4th 1275 (10th Cir. 2022)
    A post-Niz-Chavez decision clarifying “stop-time” consequences, but the petitioner never cited it below; therefore it could not assist him on appeal.
  4. BIA precedents: Matter of Nchifor & Matter of Fernandes
    Provide that objections to defective NTAs must be raised before pleadings close, otherwise the objection is waived.
  5. Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019)
    Petitioner sought its lenient view on forfeiture, but the BIA explicitly rejects its application outside the Seventh Circuit.

B. The Court’s Legal Reasoning

The panel’s reasoning unfolded in three concentric layers:

  1. Binding Circuit Precedent Controls – Regardless of Niz-Chavez, Martinez-Perez remains dispositive on the jurisdictional question. Lower tribunals (IJ/BIA) and the circuit panel are bound to follow it unless overruled en banc or by the Supreme Court.
  2. Waiver and Timeliness – Claim-processing rules confer a benefit only if timely invoked. By waiting nine years and only acting after he overstayed a voluntary-departure order, Lopez-Vega forfeited any NTA-based objection.
  3. Motions to Reopen: Heavy Burden – Reopening requires new, previously unavailable, material facts. A Supreme Court decision that was already eleven months old when the petitioner withdrew his application is neither “new” nor “unavailable.”

C. Practical Impact of the Judgment

  • Affirms Strict Timeliness – Immigrants must raise NTA defects at the earliest stage or risk forfeiture in the Tenth Circuit.
  • Maintains Circuit Split – The Tenth Circuit continues to diverge from the Seventh Circuit’s more forgiving view in Ortiz-Santiago, solidifying a geographical divide likely to encourage further Supreme Court review.
  • Limits Niz-Chavez Reach – The decision cabines Niz-Chavez to the stop-time context and discourages litigants from asserting it as a jurisdictional silver bullet.
  • Message to Practitioners – Counsel delay can jeopardize both statutory rights and equitable claims; late briefs will rarely be forgiven absent exceptional diligence.

Complex Concepts Simplified

Notice to Appear (NTA)
The charging document that starts removal proceedings. By statute (8 U.S.C. § 1229(a)), it should list the nature of proceedings, charges, and the date and time of the first hearing.
Stop-Time Rule
For cancellation of removal, continuous physical presence ends when a complete NTA is served. Niz-Chavez clarified “complete” means one document.
Claim-Processing Rule vs. Jurisdiction
Violating a claim-processing rule (like omitting date/time) can be forfeited if not timely raised; a jurisdictional defect can be raised at any time. The Tenth Circuit marks NTA defects as the former.
Motion to Reopen
A request to restart finished immigration proceedings. Generally must show new, material, previously unavailable evidence. Time- and number-limited.
Voluntary Departure
A discretionary privilege allowing a noncitizen to leave the U.S. at their own expense, avoiding a removal order. Failure to depart converts it into a removal order and bars certain future relief.
Sua Sponte Reopening
Reopening initiated by the BIA on its own. Pure grace; courts rarely review refusals absent legal error.

Conclusion

Lopez-Vega v. Garland reinforces two core propositions within Tenth Circuit immigration jurisprudence: (1) an NTA’s failure to include the date and time of the initial hearing is a waivable, claim-processing defect that does not strip the Immigration Court of jurisdiction; and (2) litigants must act with alacrity—objections untimely raised are forfeited, and late filings will not be indulged absent exceptional circumstances. By cementing these principles, the court both narrows the practical application of Niz-Chavez and signals that procedural diligence remains paramount in removal defense within the Tenth Circuit.