Umarov v. Bondi: Second Circuit Reaffirms Nonreviewability of BIA’s Sua Sponte Reopening and Declines to Treat Pereira/Niz‑Chavez Eligibility as Exceptional

Introduction

In a nonprecedential summary order, the United States Court of Appeals for the Second Circuit dismissed the petition for review filed by Khusan Baltabaevich Umarov, a native and citizen of Uzbekistan, who sought to overturn a Board of Immigration Appeals (BIA) decision denying (1) termination of removal proceedings to pursue adjustment of status, and (2) a remand to apply for non‑LPR cancellation of removal. The panel, composed of Circuit Judges Richard J. Sullivan, Alison J. Nathan, and Maria Araújo Kahn, concluded that the BIA did not abuse its discretion in denying relief and that the court largely lacked jurisdiction to review the BIA’s refusal to exercise its sua sponte reopening authority.

The case sits at the intersection of several recurring issues in post‑order immigration practice: the strict time and number limits governing motions to reopen, the narrow scope of judicial review over the BIA’s sua sponte reopening authority, the limited effect of the Supreme Court’s notice‑to‑appear rulings in Pereira v. Sessions (2018) and Niz‑Chavez v. Garland (2021) on reopening, and the continuing vitality of circuit precedent that a defective notice to appear (NTA) does not divest an immigration judge of jurisdiction once a later hearing notice issues.

Although this is a summary order without precedential effect within the Second Circuit, it consolidates and re‑applies governing principles in a way that provides practical guidance for practitioners navigating post‑order motions in the wake of Pereira and Niz‑Chavez.

Summary of the Opinion

The court reviewed the BIA’s denial of reopening/remand for abuse of discretion and dismissed the petition. It held:

Umarov’s motions (filed in 2018 and 2019, renewed in 2021) were untimely under 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c)(2), given that the BIA affirmed his removal order in 2014. No statutory or regulatory exception applied; Matter of Yauri confirms that untimely motions to reopen to pursue adjustment do not fall within the exceptions.
The court lacked jurisdiction to review the BIA’s refusal to reopen sua sponte under 8 C.F.R. § 1003.2(a) absent a legal misperception (Mahmood v. Holder). The BIA did not misapprehend its authority; it acknowledged it but found no “exceptional” circumstances.
The BIA reasonably concluded that post‑order equities—including a marriage contracted after the removal order—and newfound eligibility linked to Pereira/Niz‑Chavez do not, without more, amount to the “truly exceptional circumstances” necessary for sua sponte reopening (Matter of H‑Y‑Z‑; Yauri).
The BIA also found that Umarov failed to establish a prima facie case for cancellation due to insufficient evidence of “exceptional and extremely unusual hardship” to his U.S. citizen spouse and, in the alternative, that he had not shown grounds for a favorable exercise of discretion. The latter, discretionary ground is dispositive and independently supports denial (INS v. Abudu; Hernandez v. Garland). Umarov did not meaningfully challenge that alternative ground on appeal, thereby abandoning it.
The BIA did not improperly engage in factfinding by evaluating whether the existing record made out a prima facie case on a motion to reopen; that is a permissible gatekeeping function (Xian Tuan Ye; Huilin Zhu).
The contention that a defective NTA (omitting the initial hearing date) deprived the immigration court of jurisdiction is foreclosed in the Second Circuit: a subsequent notice of hearing preserves jurisdiction (Chery v. Garland). Any different, non‑jurisdictional claim‑processing argument was not exhausted before the BIA (Punin v. Garland).

Because the BIA did not abuse its discretion, did not misperceive the law governing its sua sponte authority, and because certain arguments were abandoned or unexhausted, the court dismissed the petition for review and vacated all stays.

Analysis

Precedents Cited and Their Role

Penaranda Arevalo v. Bondi, 130 F.4th 325, 335 (2d Cir. 2025) and Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008): Reaffirm the deferential abuse‑of‑discretion standard for review of BIA denials of motions to reopen and remand. The panel invoked these to frame its review.
Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) and Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146 (2d Cir. 2007): Explain that an abuse of discretion exists when the agency’s decision is arbitrary or capricious—for example, devoid of reasoning. The court found the BIA’s explanation “reasoned,” satisfying these benchmarks.
8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2), (c)(3): Establish the one‑motion/90‑day limits and narrow exceptions for motions to reopen. Umarov identified no applicable exception, and the BIA relied on these provisions.
Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009): Holds untimely motions to reopen to pursue adjustment typically fall outside statutory/regulatory exceptions. The BIA and court applied Yauri to reject reopening for adjustment based solely on post‑order eligibility.
Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009): Limits judicial review of the BIA’s refusal to reopen sua sponte to cases of legal misperception. The court found no misperception—only a discretionary judgment that circumstances were not “exceptional.”
Pereira v. Sessions, 585 U.S. 198 (2018) and Niz‑Chavez v. Garland, 593 U.S. 155 (2021): These Supreme Court decisions address the stop‑time rule for cancellation of removal. The BIA assumed arguendo that, under these cases, Umarov satisfied the 10‑year physical‑presence requirement, but still held reopening was unwarranted and that he had not made the requisite hardship showing or warranted discretion. Thus Pereira/Niz‑Chavez did not supply “exceptional” grounds for sua sponte reopening.
Matter of H‑Y‑Z‑, 28 I. & N. Dec. 156, 161 (BIA 2020): Emphasizes that equities accrued while remaining in the United States after a removal order generally do not constitute the “truly exceptional circumstances” needed for sua sponte reopening. The BIA relied on this principle in discounting the post‑order marriage.
Xian Tuan Ye v. Dep't of Homeland Sec., 446 F.3d 289, 296 (2d Cir. 2006) and Huilin Zhu v. Garland, No. 20‑2217, 2022 WL 4350110, at *1 (2d Cir. Sept. 20, 2022): Authorize the BIA, at the motion stage, to assess whether the submitted evidence establishes a prima facie case, without engaging in impermissible factfinding. This rebuts the claim that the BIA erred by not allowing testimony from the U.S. citizen spouse.
Hernandez v. Garland, 66 F.4th 94, 100 (2d Cir. 2023): Cancellation of removal involves both statutory eligibility and a favorable exercise of discretion. Even if eligibility exists, the agency may deny as a matter of discretion.
INS v. Abudu, 485 U.S. 94, 105 (1988): The BIA may deny reopening on discretionary grounds without first deciding whether the movant has established a prima facie case. The BIA explicitly relied on this alternative ground; the Second Circuit treated it as dispositive and unchallenged.
Li Chen v. Garland, 43 F.4th 244, 251–52 (2d Cir. 2022): Reiterates that the Second Circuit lacks jurisdiction to review a denial of sua sponte reopening except for legal misunderstandings. The panel cited this to explain why it could not second‑guess the BIA’s exceptional‑circumstances analysis.
Chery v. Garland, 16 F.4th 980, 986–87 (2d Cir. 2021): An NTA’s omission of date/time does not strip the immigration court of jurisdiction if a later hearing notice is sent. This foreclosed termination based on a jurisdictional theory.
Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024): Strict exhaustion rule: arguments not fairly presented to the BIA cannot be raised for the first time in the court of appeals. Any pivot away from a jurisdictional challenge to a non‑jurisdictional, claim‑processing violation was unexhausted.

Legal Reasoning

The court’s analysis proceeds in three principal steps.

Timeliness and the lack of exceptions. The court agreed with the BIA that the 2018/2019 motions, renewed in 2021, were untimely under the 90‑day rule and that no enumerated exception applied to permit the pursuit of adjustment or cancellation based on post‑order eligibility. Matter of Yauri squarely addresses this scenario, and the petitioner expressly abandoned equitable tolling based on Pereira. That strategic choice left only an appeal to the BIA’s sua sponte authority.
Limited review of sua sponte reopening; no misperception of law. Under Mahmood and Li Chen, the court may review a denial of sua sponte reopening only if the BIA misperceived the legal landscape. Here, the BIA recognized its power to reopen “in exceptional situations” (8 C.F.R. § 1003.2(a)) but explained that (a) the petitioner’s marriage occurred after he was ordered removed, and post‑order equities generally do not qualify as “truly exceptional” (Matter of H‑Y‑Z‑), and (b) even assuming Pereira/Niz‑Chavez meant he had accrued sufficient physical presence for cancellation, new eligibility is not itself an exceptional circumstance warranting sua sponte reopening. Those are quintessential discretionary assessments, not legal errors. The court thus lacked jurisdiction to revisit them.
Independent grounds regarding cancellation: no prima facie hardship and discretionary denial. The BIA found two additional barriers to reopening for cancellation: (a) the evidence did not establish prima facie “exceptional and extremely unusual hardship” to a qualifying relative; and (b) in the alternative, even if eligibility were assumed, the agency would deny cancellation as a matter of discretion. Under Abudu and Hernandez, the discretionary basis alone sustains denial. The petitioner did not meaningfully challenge that alternative ground on appeal, abandoning it (Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.1 (2d Cir. 2005)).

The court also rejected two procedural objections:

Improper factfinding: No error. On a motion to reopen, the BIA may evaluate the existing record and new motion evidence to decide whether the movant has presented a prima facie case. That evaluative function does not amount to prohibited factfinding (8 C.F.R. § 1003.1(d)(3)(iv); Xian Tuan Ye; Huilin Zhu).
Jurisdictional defect due to a defective NTA: Foreclosed by Chery. The absence of a hearing date in the original NTA does not void jurisdiction where a subsequent notice of hearing issues. A re‑styled, non‑jurisdictional claim‑processing argument was not exhausted (Punin) and could not be considered for the first time on appeal.

Impact and Practical Implications

While this order is nonprecedential, it has several noteworthy implications for post‑order litigation strategies in the Second Circuit:

Stop‑time rule developments do not, by themselves, open the reopening window. Pereira and Niz‑Chavez may affect statutory eligibility calculations (for example, by allowing accrual of 10 years’ physical presence), but they do not create an exception to motion‑to‑reopen time limits, nor do they automatically constitute “exceptional circumstances” for sua sponte reopening. Petitioners must still satisfy timeliness requirements or demonstrate true exceptionality beyond newfound eligibility.
Post‑order equities carry little weight on sua sponte reopening. Marriages and other favorable equities acquired after a final order are “ordinarily” insufficient to merit reopening sua sponte (Matter of H‑Y‑Z‑). Counsel should temper client expectations and develop alternative pathways, such as consular processing where appropriate.
Discretion looms large at the motion stage. The BIA may deny reopening by concluding that, even if all eligibility elements are met, the relief would be denied as a matter of discretion. Practitioners should submit robust, well‑documented equities and address adverse factors head‑on at the motion stage, not just at a hypothetical merits hearing.
Preserve equitable tolling with diligence. If relying on an intervening change in law, counsel must articulate equitable tolling with evidence of diligence and causation. Abandoning tolling narrows the available avenues to the largely unreviewable sua sponte route.
Frame BIA error as a legal misperception to obtain review. Given Mahmood/Li Chen, judicial review of sua sponte denials is exceptionally limited. Where possible, identify and develop a record showing that the BIA misapprehended governing law or adopted an erroneous legal premise.
NTA‑jurisdiction arguments remain foreclosed in the Second Circuit. Chery continues to control: a later hearing notice preserves immigration court jurisdiction despite an initial defective NTA. If advancing claim‑processing theories, ensure they are squarely raised and preserved before the BIA to satisfy exhaustion (Punin).
Importance of a complete hardship record. For cancellation, “exceptional and extremely unusual hardship” is a high bar. Affidavits, medical/educational records, financial documentation, and expert reports are vital. Merely invoking a qualifying relative’s citizenship or generalized hardship is unlikely to suffice.

Complex Concepts Simplified

Motion to Reopen (timing/number limits): A noncitizen generally has only one chance to file a motion to reopen, and it must be filed within 90 days of the final removal order. There are narrow, enumerated exceptions (for example, changed country conditions for certain claims). Seeking to adjust status or apply for cancellation after that window typically does not qualify for an exception.
Equitable Tolling: A doctrine that can pause a filing deadline when the petitioner was prevented from filing on time despite diligent efforts (for instance, due to deception or an extraordinary change in law). To succeed, one must show diligence and a causal link between the impediment and the delay.
Board’s Sua Sponte Reopening: The BIA has a discretionary power to reopen a case on its own (or on request) in “exceptional situations.” Courts generally cannot review denials of sua sponte reopening unless the BIA declined reopening because it misunderstood the law.
Stop‑Time Rule (Pereira/Niz‑Chavez): For non‑LPR cancellation of removal, a person must show 10 years of physical presence before the “stop‑time” trigger. The Supreme Court held that a defective NTA lacking time/place does not trigger stop‑time (Pereira), and that the government must provide the required information in a single document to trigger stop‑time (Niz‑Chavez). These rulings can affect eligibility calculations but do not, by themselves, reopen closed cases or excuse motion deadlines.
Exceptional and Extremely Unusual Hardship: A stringent standard for cancellation of removal. The hardship to a qualifying relative (U.S. citizen or LPR spouse, parent, or child) must be substantially beyond what would ordinarily result from a family member’s removal. Detailed, individualized evidence is essential.
Prima Facie Case on a Motion to Reopen: The applicant must present evidence that, if accepted as true, would establish eligibility for the relief sought. The BIA can evaluate whether the submission meets this threshold without conducting a new hearing or making credibility determinations.
Discretion vs. Eligibility: Many forms of relief (like cancellation) have two steps: (1) meet statutory eligibility and (2) convince the agency to grant relief as a discretionary matter. Even if eligible, relief can be denied on discretionary grounds.
Jurisdiction vs. Claim‑Processing Rules: A jurisdictional rule goes to the court’s power to hear a case; claim‑processing rules direct how parties must proceed but do not affect the tribunal’s power. In the Second Circuit, a defective NTA is not jurisdictional if a later notice cures the defect; any claim‑processing argument must be preserved before the BIA.
Post‑Order Equities: Favorable factors acquired after a final removal order (marriage, children, community ties) are generally given little weight when asking the BIA to reopen sua sponte, absent truly exceptional circumstances.

Conclusion

Umarov v. Bondi reinforces several entrenched principles in the Second Circuit’s immigration jurisprudence. Timeliness and one‑motion constraints on reopening remain firm, and the court will not treat Pereira and Niz‑Chavez as automatic gateways for out‑of‑time motions. The BIA’s sua sponte reopening power remains tightly cabined: absent a misperception of law, its refusal to reopen is largely unreviewable, particularly where the equities were acquired after a final order. The decision also underscores the BIA’s prerogative to deny cancellation at the motion stage on discretionary grounds—an independently sufficient basis that demands targeted, persuasive equities evidence early.

Although this is a nonprecedential summary order, its reasoning tracks published Second Circuit law and BIA precedent. Practitioners should heed its practical lessons: preserve tolling arguments with evidence of diligence, develop robust hardship and equitable records, frame reviewable legal errors where possible, and ensure that any claim‑processing theories are properly exhausted before the BIA. In short, post‑order relief premised on stop‑time developments will rarely succeed without compelling, exceptional circumstances and meticulous preservation of legal and factual grounds.

Case: Umarov v. Bondi, No. 23‑6893 (2d Cir. Sept. 24, 2025) (summary order). Panel: Sullivan, Nathan, Kahn, JJ. Disposition: Petition dismissed; pending motions denied; stays vacated.