Third Circuit: A Change in Law Is Not a “New Fact” Supporting Statutory Reopening Under 8 U.S.C. § 1229a(c)(7)

I. Introduction

In Jose Aristy-Rosa v. Attorney General United States of America (3d Cir. Sept. 1, 2026), the Third Circuit addressed the latest in a long series of attempts by Jose Arcenio Aristy-Rosa (“Petitioner”), a lawful permanent resident ordered removed in 2011, to revisit that final order.

The 2011 removal order was entered on consent and rested primarily on Petitioner’s 1997 New York conviction for attempted third-degree criminal sale of cocaine under N.Y. Penal Law § 220.39(1). Over the ensuing years, Petitioner pursued multiple efforts to reopen proceedings, including ineffective-assistance theories (mirroring his Padilla-based state collateral attack), reliance on later-filed protection applications, and later a gubernatorial pardon. In 2024, he pivoted to a new theory: that the Second Circuit’s decision in United States v. Minter, 80 F.4th 406 (2d Cir. 2023), undermined the controlled-substance basis for removability under 8 U.S.C. § 1227(a)(2)(B)(i).

The case presented three key issues: (1) whether an intervening judicial decision can support a statutory motion to reopen under 8 U.S.C. § 1229a(c)(7); (2) whether it can support a statutory motion to reconsider under 8 U.S.C. § 1229a(c)(6) despite a 13-year delay via equitable tolling; and (3) whether the court can review the BIA’s denial of sua sponte reopening under 8 C.F.R. § 1003.2(a).

II. Summary of the Opinion

  • Statutory reopening (8 U.S.C. § 1229a(c)(7)): The court held that “a change in law is not a basis for statutory reopening.” A judicial decision is not “new facts” or “evidentiary material” as required by § 1229a(c)(7)(B). Therefore, equitable tolling does not enter the analysis for a law-change theory under reopening.
  • Statutory reconsideration (8 U.S.C. § 1229a(c)(6)): A change in law may support reconsideration in principle, but Petitioner’s reconsideration motion was plainly untimely (filed ~13 years late), and he failed to establish equitable tolling because a later statutory-interpretation decision is not an “extraordinary” circumstance—especially where the argument could have been raised earlier.
  • Sua sponte reopening (8 C.F.R. § 1003.2(a)): The court dismissed for lack of jurisdiction the challenge to the BIA’s refusal to reopen sua sponte, finding no “incorrect legal premise” that would trigger the narrow remand-only exception recognized in circuit precedent.

III. Analysis

A. Precedents Cited

1. Finality, delay, and the institutional posture toward reopening

  • INS v. Rios-Pineda, 471 U.S. 444 (1985): The court opened its analysis with the principle that appeals and post-order motions should not serve as “indefinite stalling of physical departure.” This frame supported the court’s emphasis on finality and skepticism toward repeated, serial motions.
  • INS v. Abudu, 485 U.S. 94 (1988), and INS v. Doherty, 502 U.S. 314 (1992): Both were invoked for the proposition that reopening is disfavored because it can enable “endless delay,” and that “every delay works to the advantage” of the removable noncitizen. These cases undergirded the Third Circuit’s strict reading of the motion statutes.
  • Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002): Cited to reinforce that reopening “implicate[s] important finality concerns,” justifying strict adherence to the statutory limits on motions.

2. Jurisdiction and standards of review over reopening/reconsideration

  • Mata v. Lynch, 576 U.S. 143 (2015): Used for the proposition that courts of appeals have jurisdiction to review denials of statutory motions to reopen.
  • Suchite-Salguero v. AG, 147 F.4th 355 (3d Cir. 2025): The court extended Mata’s reasoning to support jurisdiction over denials of statutory reconsideration motions.
  • Darby v. AG, 1 F.4th 151 (3d Cir. 2021): Cited for the BIA’s jurisdictional authority and for the “abuse of discretion” review applied to denials of reopening.

3. Statutory interpretation methodology driving the new rule

  • Mullin v. Doe, 146 S. Ct. 2121 (2026): Quoted for ordinary-meaning interpretive principles; it supported the court’s textual conclusion that “new facts” mean facts, not later judicial opinions.
  • Smith v. Spizzirri, 601 U.S. 472 (2024): Used to emphasize that “shall” imposes mandatory requirements, making § 1229a(c)(7)(B)’s evidentiary-material requirement non-discretionary.
  • Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Crucial to the court’s reopening/reconsideration distinction—reopening addresses “new facts,” while reconsideration addresses “errors of law or fact.”
  • Mullin v. Al Otro Lado, 146 S. Ct. 2079 (2026): Invoked for the canon that courts must give effect to Congress’s “inclusions and exclusions,” reinforcing that Congress channeled law-change arguments into reconsideration, not reopening.
  • Gonzalez Hernandez v. Garland, 9 F.4th 278 (5th Cir. 2021): The Third Circuit adopted its core reasoning: letting changes in law support reopening would “collapse” the statutory distinction and render the 30-day reconsideration deadline superfluous.
  • Essintial Enter. Sols., LLC v. SBA, 166 F.4th 380 (3d Cir. 2026): Cited to support the court’s insistence on the “single, best meaning” approach, confirming a text-first resolution.

4. Reconsideration and “change in law” as “pertinent authority”

  • In re O-S-G-, 24 I. & N. Dec. 56 (BIA 2006): Cited to confirm that, unlike reopening, reconsideration can be based on a change of law as “pertinent authority” addressing legal error under § 1229a(c)(6)(C).

5. Equitable tolling limits

  • Lozano v. Montoya Alvarez, 572 U.S. 1 (2014): Provided the doctrinal foundation (Congress presumed to incorporate equitable tolling into limitations), while stressing tolling is not free-floating fairness review.
  • Wallace v. Kato, 549 U.S. 384 (2007): Used to underscore that equitable tolling is “exceedingly rare.”
  • Luntungan v. AG, 449 F.3d 551 (3d Cir. 2006): Noted to emphasize the Third Circuit has not definitively extended equitable tolling to certain motion limitations (particularly number bars), reinforcing the restrictive landscape.
  • Enbridge Energy, LP v. Nessel ex rel. Michigan, 146 S. Ct. 1074 (2026): Cited to support skepticism about tolling outside its traditional home.
  • Garcia Morin v. Bondi, 152 F.4th 626 (5th Cir. 2025), and Estrada-Cardona v. Garland, 44 F.4th 1275 (10th Cir. 2022): Cited as additional authority cautioning against expansive tolling in the immigration motion context.
  • D.J.S.-W. ex rel. Stewart v. United States, 962 F.3d 745 (3d Cir. 2020), and Nkomo v. AG, 986 F.3d 268 (3d Cir. 2021): Provided the two-prong tolling test: diligence plus extraordinary prevention from asserting rights.
  • Rutherford v. United States, 146 S. Ct. 1320 (2026): Used to define “extraordinary” as highly unusual and uncommon.
  • Hedges v. United States, 404 F.3d 744 (3d Cir. 2005), and Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005): Examples of tolling-relevant circumstances (deceit/fraud), contrasted with Petitioner’s situation.
  • Omar v. Lynch, 814 F.3d 565 (1st Cir. 2016), and Shah v. Holder, 736 F.3d 1125 (7th Cir. 2013): Cited for the proposition that emerging precedent does not require reopening years later; agencies may prioritize finality.
  • Debeato v. AG, 505 F.3d 231 (3d Cir. 2007): Used by analogy to stress that collateral attacks typically proceed under the law as it existed at the time.
  • Penaranda Arevalo v. Bondi, 130 F.4th 325 (2d Cir. 2025): Quoted for the idea that someone must be first to raise a legal argument; Petitioner could have advanced the statutory-interpretation theory earlier.

6. Sua sponte reopening and judicial review limits

  • Herrera v. Bondi, 162 F.4th 617 (6th Cir. 2025): Used to demystify “sua sponte” reopening as a label for discretionary regulatory power typically invoked by motion but not meaningfully constrained.
  • In re G-D-, 22 I. & N. Dec. 1132 (BIA 1999) (en banc), and In re X-G-W-, 22 I. & N. Dec. 71 (BIA 1998) (en banc): Cited for the BIA’s framework: sua sponte reopening is discretionary; “new case law” typically is not a “fundamental change” justifying reopening.
  • Sang Goo Park v. AG, 846 F.3d 645 (3d Cir. 2017): Confirmed that even an “exceptional situation” does not compel the BIA to reopen sua sponte.
  • Pllumi v. AG, 642 F.3d 155 (3d Cir. 2011): Provided the Third Circuit’s jurisdictional rule—generally no review of sua sponte denials, with a narrow remand-only exception for “incorrect legal premise.”
  • Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001): Cited to validate reliance on BIA precedent in the Board’s reasoning.
  • Barajas-Salinas v. Holder, 760 F.3d 905 (8th Cir. 2014): Supported the view that deciding whether an intervening development is “exceptional” is a discretionary call with no meaningful judicial standard.

7. The underlying “change in law” Petitioner invoked

  • United States v. Minter, 80 F.4th 406 (2d Cir. 2023): The linchpin of Petitioner’s new theory. The Third Circuit treated it as a “change in law” for analysis, but stressed it was (i) out-of-circuit, (ii) an ACCA “serious drug offense” case rather than an immigration controlled-substance-removability case, and (iii) not a basis for reopening under § 1229a(c)(7).
  • Matter of M-N-I-, 28 I. & N. Dec. 803 (BIA 2024): Cited by the BIA for the proposition that decisions like Minter are not binding in the Third Circuit, supporting the Board’s refusal to treat it as a dispositive “fundamental change” for sua sponte reopening.

8. Background procedural history and related litigation

  • Padilla v. Kentucky, 559 U.S. 356 (2010), and People v. Aristy, 979 N.Y.S.2d 634 (N.Y. App. Div. 2014): The state collateral proceedings contextualized Petitioner’s ineffective-assistance strategy but were not central to the Third Circuit’s new statutory holding.
  • Aristy-Rosa v. AG, 994 F.3d 112 (3d Cir. 2021): The earlier Third Circuit decision held a New York gubernatorial pardon removed the aggravated-felony ground but not the controlled-substance ground under 8 U.S.C. § 1227(a)(2)(B)(i).
  • Aristy-Rosa v. AG, --- F.4th ----, 2026 WL 2363039 (3d Cir. 2026): The panel referenced its earlier precedential action vacating Petitioner’s removal stay, reinforcing the court’s view of protracted delay.
  • Blanche v. Lau, 146 S. Ct. 1981 (2026): Cited for a general definition of lawful permanent resident status.

B. Legal Reasoning

1. The core holding: § 1229a(c)(7) reopening requires “new facts,” not new law

The court’s most significant doctrinal move is a textual one: § 1229a(c)(7)(B) requires that reopening motions “state the new facts” and be supported by “evidentiary material” (e.g., affidavits). A judicial decision—even if it changes how a statute is interpreted—does not fit the ordinary meaning of “fact,” nor is it “evidentiary material.” Because “shall” makes these requirements mandatory, the court treated this as a categorical rule: a change in law cannot be the basis for statutory reopening.

The court reinforced this reading structurally: Congress created a neighboring mechanism—reconsideration—expressly focused on “errors of law or fact” and “pertinent authority.” Allowing law changes to justify reopening would erase the functional distinction between reopening and reconsideration and would make the reconsideration deadline (30 days) largely pointless.

2. Reconsideration can address changes in law—but not via routine equitable tolling

The opinion accepts that a change in law may be “pertinent authority” supporting reconsideration under § 1229a(c)(6)(C). But Petitioner confronted a 30-day deadline and filed 13 years late. To escape that, he sought equitable tolling.

Even assuming tolling is available for the time bar, the court held Petitioner failed the “extraordinary circumstance” requirement. The key move is to classify intervening statutory-interpretation decisions as ordinarily foreseeable litigation developments, not rare barriers preventing timely assertion of rights. The court stressed that Petitioner (or someone in his position) could have raised the argument earlier—before Minter—and that finality would be undermined if later cases routinely reopened long-settled removal orders.

3. Sua sponte reopening: discretionary space insulated from review

Turning to 8 C.F.R. § 1003.2(a), the court treated the BIA’s sua sponte reopening power as “unfettered discretion” with no meaningful judicial standard. Under Pllumi v. AG, the only narrow opening is when the BIA relies on an “incorrect legal premise,” which would allow remand. The panel found no such error: the BIA recognized its authority, considered Minter, and declined to reopen, consistent with BIA precedent that “new case law” is not typically a “fundamental change” warranting sua sponte action.

C. Impact

  • Bright-line channeling of law-change claims: In the Third Circuit, intervening judicial decisions (even if favorable) must be pursued, if at all, through reconsideration (subject to a tight 30-day deadline), not reopening. This sharply limits the utility of later case law for long-final orders.
  • Finality strengthened in removal proceedings: The court’s reasoning is explicitly finality-driven and likely to be cited to resist repeated attempts to relitigate removability years later.
  • Equitable tolling narrowed for late reconsideration: By holding that a later statutory-interpretation opinion is not “extraordinary,” the decision reduces the likelihood that noncitizens can revive old cases based on evolving precedent absent fraud, deception, or a comparable barrier.
  • Limited leverage from out-of-circuit decisions: The decision signals that out-of-circuit developments like United States v. Minter will not, standing alone, pressure the BIA into sua sponte reopening, especially when the decision arises in a non-immigration context.
  • Jurisdictional wall remains high for sua sponte denials: Petitioners remain largely unable to obtain appellate review of the BIA’s refusal to reopen sua sponte, except in the rare “incorrect legal premise” scenario.

IV. Complex Concepts Simplified

Motion to reopen (8 U.S.C. § 1229a(c)(7))
A request to restart proceedings because of new evidence or new factual developments (e.g., new country-conditions evidence, newly available facts). This case holds: a later court decision is not a “new fact.”
Motion to reconsider (8 U.S.C. § 1229a(c)(6))
A request to reexamine a prior decision because it contains an error of law or fact, supported by “pertinent authority.” A later judicial decision can qualify as that authority, but the motion must be filed within 30 days unless equitable tolling applies.
Equitable tolling
A rare doctrine that pauses a filing deadline when a person was diligent but was prevented in an “extraordinary” way from filing on time (often involving deception or comparable impediments). This decision treats later statutory-interpretation precedent as not extraordinary.
Sua sponte reopening (8 C.F.R. § 1003.2(a))
A discretionary power the BIA may use to reopen on its own authority. Courts generally cannot review denials because there is no meaningful standard to apply, absent a legal-premise error.

V. Conclusion

The Third Circuit’s opinion establishes a clear rule of procedure with substantive consequences: intervening changes in law do not qualify as “new facts” and therefore cannot support statutory reopening under 8 U.S.C. § 1229a(c)(7). While legal developments may support statutory reconsideration in theory, the decision sharply limits late reliance on new precedent by rejecting equitable tolling where the intervening opinion reflects statutory interpretation arguments that could have been raised earlier. Finally, the court reinforces that sua sponte reopening remains a largely unreviewable domain of agency discretion.