“Diligence or Dismissal” – Third Circuit Re-affirms Strict Equitable-Tolling Standards and Post-Niz-Chavez NTA Challenges in Brown v. Attorney General (3d Cir. 2025)

1. Introduction

The Third Circuit’s non-precedential opinion in Gartor Kiki Brown v. Attorney General United States, No. 24-1092 (Aug. 14 2025), clarifies several intertwined procedural doctrines governing immigration motions to reopen. Although styled as “not precedential,” the panel’s thorough application of equitable-tolling principles, its treatment of defective Notice-to-Appear (NTA) arguments after Niz-Chavez v. Garland, and its reaffirmation of the near-impossibility of judicial review of sua sponte reopening, together provide a valuable roadmap for practitioners and future litigants.

The petitioner, Ms. Gartor Kiki Brown, a Liberian national and lawful permanent resident, sought to breathe new life into a 2013 final removal order—first before a new Immigration Judge (IJ), then before the Board of Immigration Appeals (BIA), and finally before the Third Circuit—based on changed circumstances (gender identity, family political fallout, ethnic discrimination), alleged NTA deficiencies, and the Supreme Court’s decision in Sessions v. Dimaya. All efforts failed.

2. Summary of the Judgment

• The Third Circuit dismissed portions of the petition for lack of jurisdiction (chiefly the request to compel sua sponte reopening).
• The Court denied the remainder, holding that:
  • Both motions to reopen were untimely and unsupported by adequate evidence of changed country conditions.
  • Equitable tolling was unavailable because Brown showed no “diligent pursuit” of her rights over a decade.
  • Post-Niz-Chavez NTA defects are waived when first raised after the merits have been fully litigated.
  • Dimaya-based aggravated-felony challenges were likewise time-barred and not tolled.
  • No indicia of past mental incompetency justified remand under Matter of M-A-M-.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• INS v. Doherty, 502 U.S. 314 (1992) – Established abuse-of-discretion review for motion-to-reopen denials; forms the backbone of the panel’s deferential posture.
• Holland v. Florida, 560 U.S. 631 (2010) – Two-part equitable tolling test (diligence + extraordinary circumstance); extensively quoted.
• Nkomo v. Attorney General, 986 F.3d 268 (3d Cir. 2021) – Applied Holland to immigration context; cited for the “diligence” requirement.
• Darby v. Attorney General, 1 F.4th 151 (3d Cir. 2021) & Bamaca-Cifuentes v. Attorney General, 870 F.3d 108 (3d Cir. 2017) – Explain the “changed country conditions” exception; guided the Court’s comparative-evidence requirement.
• Sessions v. Dimaya, 584 U.S. 148 (2018) – Void-for-vagueness ruling on 18 U.S.C. § 16(b); Brown’s attempted springboard for challenging removability.
• Niz-Chavez v. Garland, 593 U.S. 155 (2021) – Held the NTA must be a single document; cited for analogy to claim-processing rules subject to forfeiture (Kontrick v. Ryan).
• Matter of M-A-M-, 25 I.&N. Dec. 474 (BIA 2011) – Framework for competency assessments; used to reject remand request.
• Pllumi v. Attorney General, 642 F.3d 155 (3d Cir. 2011) & Sang Goo Park v. Attorney General, 846 F.3d 645 (3d Cir. 2017) – Discuss limited review of BIA’s sua sponte power; applied to dismiss jurisdictional claim.

3.2 The Court’s Legal Reasoning

1. Timeliness and Evidence Gap. Under 8 U.S.C. § 1229a(c)(7)(A) and 8 C.F.R. § 1003.23, a motion to reopen must be filed within 90 days unless predicated on changed country conditions. Brown’s submissions (2017 and 2019 State-Department reports) lacked a “before-and-after” comparison with 2013 conditions; hence, no genuine “change” was shown.
2. Equitable Tolling Stringency. Citing Holland and Nkomo, the panel emphasized that a decade of inaction, unaccompanied by efforts to locate counsel or file pro se challenges, defeats diligence. The decision underscores that incarceration, identity evolution (gender transition), and familial hardship do not automatically constitute “extraordinary circumstances.”
3. Waiver of NTA Objections. Borrowing from civil-procedure doctrine (Kontrick), the Court treated defective NTAs as “claim-processing” rules: forfeitable if not raised before litigating the merits. This constriction effectively limits use of Niz-Chavez as a late-stage defense strategy in the Third Circuit.
4. Dimaya Retroactivity. Even assuming Dimaya applies retroactively, the Court held Brown’s attack on the aggravated-felony ground untimely and not tolled—again due to lack of diligence.
5. Mental Competency. Presumption of competence stands absent record “indicia.” Brown’s 2023 mental-health diagnoses shed no light on her 2012–13 condition; hence no remand under M-A-M-.
6. Sua Sponte Reopening. Following Calle-Vujiles and progeny, the Court declined jurisdiction absent (a) legal-error premise or (b) deviation from a settled course. Petitioner identified neither.

3.3 Impact of the Decision

• Heightened Diligence Standard. The opinion signals to practitioners that long dormancy of rights—particularly where the non-citizen is at liberty and capable—will doom equitable-tolling arguments.
• Post-Niz-Chavez Strategy. Litigants in the Third Circuit must raise defective-NTA arguments at the earliest procedural stage. Attempting to assert them post-merits will likely be deemed forfeited.
• Mental Competency Pleadings. Documentary evidence tying alleged incompetency to the time of the original proceedings is indispensable. Diagnoses years later will not suffice.
• Sua Sponte Limitations. The Court continues to cabin review of BIA refusals to reopen sua sponte, reinforcing that such motions should be a last resort and must articulate a specific misapplication of law or departure from precedent.

4. Complex Concepts Simplified

• Motion to Reopen vs. Motion to Reconsider – Reopen introduces new facts or evidence; reconsider alleges legal or factual error in the prior decision.
• Changed Country Conditions Exception – A statutory carve-out allowing late reopening if new evidence shows materially different conditions in the home country since the original removal hearing.
• Equitable Tolling – A judicial doctrine that pauses a filing deadline when (1) the party pursued her rights diligently, and (2) extraordinary circumstances prevented timely action.
• Notice to Appear (NTA) – Document initiating removal proceedings. After Niz-Chavez, it generally must contain all statutorily required information in one document, but failures are subject to waiver.
• Sua Sponte Reopening – The BIA’s inherent authority to reopen a case on its own initiative in “exceptional situations.” Courts rarely disturb refusals to exercise this power.
• Indicia of Incompetence – Observable signs (medical records, behavior in court, psychiatric reports) that a respondent cannot meaningfully participate in proceedings.

5. Conclusion

Although labeled “not precedential,” Brown v. Attorney General crystallizes the Third Circuit’s stance on four recurrent immigration-procedure flashpoints:

1. Equitable tolling demands demonstrable, contemporaneous diligence.
2. Niz-Chavez NTA challenges are forfeited if raised only after an adverse merits ruling.
3. Mental-competency remands require historical, not merely current, evidence.
4. Judicial review of the BIA’s refusal to reopen sua sponte remains narrowly circumscribed.

For attorneys, the decision serves as a cautionary tale: rights unasserted in real time may become rights forever lost. For scholars, it offers further proof that “non-precedential” does not mean unimportant—especially when the opinion synthesizes and hardens doctrinal boundaries that shape everyday immigration practice.