“Timeliness Is of the Essence” – Sixth Circuit Re-Affirms Forfeiture of Defective NTA Claims and Tightens Particular-Social-Group Analysis in Cobo-Lopez v. Bondi

Commentary on the United States Court of Appeals for the Sixth Circuit decision issued 28 July 2025 (No. 25-3001)

1 Introduction

The Sixth Circuit’s unpublished—but highly instructive—decision in Jacinto Salomon Cobo-Lopez v. Pamela Bondi addresses seven discrete challenges to an immigration removal order. Although styled “Not Recommended for Publication,” the opinion cements two practical rules that will reverberate in removal litigation within the Circuit:

A challenge to a deficient Notice to Appear (NTA) is a claim-processing rule subject to waiver and forfeiture; if the respondent does not raise the defect before pleadings close at the immigration-court level, the objection is lost.
Asserting persecution based on “particular social group” (PSG) membership remains an exacting task: the applicant bears the burden to show immutability, particularity, and social distinction, and generalized formulations built around gang recruitment or former membership—no matter how sympathetic—have little traction.

This commentary dissects the judgment, traces the precedents on which it rests, demystifies the legal doctrines in play, and anticipates its broader impact on immigration practice.

2 Summary of the Judgment

Petitioner: Jacinto Salomon Cobo-Lopez, a 27-year-old Guatemalan, former junior member of MS-13 (Mara Salvatrucha), claiming fear of retaliation upon return.
Respondent: Pamela Bondi, Attorney General of the United States.
Procedural posture: Petition for review of a December 2024 BIA order affirming an Immigration Judge’s denial of asylum, withholding of removal, CAT protection, and voluntary departure.
Holding: Petition denied.
- NTA defect waived because not timely raised (following Matter of Fernandes).
- Asserted PSG (“young ethnic Mayans from rural Guatemala who refused gang recruitment and are former gang members”) not cognizable—fails social-distinction test.
- No reversible error in IJ’s analysis of withholding, internal relocation, CAT claim, or voluntary-departure eligibility.

3 Detailed Analysis

3.1 Precedents Cited

Pereira v. Sessions, 585 U.S. 198 (2018) & Niz-Chavez v. Garland, 595 U.S. 155 (2021) – established that an NTA missing time/date is invalid for stop-time purposes but left open jurisdictional consequences.
Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022) – re-characterised NTA time-and-place requirement as a claim-processing rule; objections must be raised before pleadings close.
Sixth Circuit unpublished trio (Alvarenga-Canales 2023; Reyes-Rodriguez 2024; Palma-Campos 2025) – applied Fernandes forfeiture rule.
Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) & Meraz-Saucedo v. Rosen, 986 F.3d 676 (7th Cir. 2021) – illustrate alternative (but now foreclosed) approach to excusable untimeliness.
Guzman-Vazquez v. Barr, 959 F.3d 253 (6th Cir. 2020) – clarified different causation standards for asylum vs. withholding.
Cruz-Guzman v. Barr, 920 F.3d 1033 (6th Cir. 2019); Umana-Ramos v. Holder, 724 F.3d 667 (6th Cir. 2013) – rejected gang-related PSG formulations.
Reyes Galeana v. Garland, 94 F.4th 555 (6th Cir. 2024) – recent exposition of PSG “social distinction.”
Sabastian-Andres v. Garland, 96 F.4th 923 (6th Cir. 2024) – restated substantial-evidence review & CAT “willful blindness.”
Hernandez v. Garland, 59 F.4th 762 (6th Cir. 2023) – scope of review over voluntary-departure eligibility.

3.2 Court’s Legal Reasoning

3.2.1 Defective NTA – Waiver Through Untimely Objection

Although the Supreme Court deemed a time-and-place-less NTA invalid in Pereira, the Sixth Circuit—echoing Fernandes—treats the statutory defect as non-jurisdictional. Therefore:

If the non-citizen does not object before the IJ closes pleadings, the right to contest the NTA is forfeited.

Because Cobo-Lopez first raised the defect on appeal to the BIA, the challenge was untimely, and the Court declined to follow the Seventh Circuit’s “excusable timing + prejudice” doctrine.

3.2.2 Particular Social Group Analysis

The claimed PSG failed primarily on the social distinction prong—society (not just gangs) must view the class as a discrete group. The Court reiterated that:

Ethnicity alone (Mayan) is immutable but doesn’t automatically supply social distinction when blended with gang elements.
“Young rural former gang members who refused recruitment” is too compound and lacks evidence that Guatemalan society perceives the group as a discrete class.

3.2.3 Withholding vs. Asylum

The Sixth Circuit acknowledged differing causation language (“at least one central reason” v. “at least one reason”) but held the distinction irrelevant because failure to establish a cognizable PSG is fatal to both forms of relief.

3.2.4 Internal Relocation

Because the burden rests on the applicant absent past persecution, the IJ’s four-point rationale (language adaptability, lack of countrywide gang reach, no infrastructure barriers, and mother’s safety) satisfied substantial-evidence review.

3.2.5 Convention Against Torture (CAT)

The CAT claim faltered on probability: the record showed threats without follow-through, no contact in five years, and insufficient proof of governmental “acquiescence” beyond isolated non-response to police calls.

3.2.6 Voluntary Departure

Eligibility failed because the petitioner produced no passport or travel documents—clear-and-convincing evidence absent. The Sixth Circuit reaffirmed its jurisdiction to review this nondiscretionary prerequisite but found no error.

3.3 Impact of the Decision

Procedural vigilance: Practitioners must raise NTA-defect objections before pleadings close; otherwise, the issue is lost in the Sixth Circuit.
PSG pleadings: Applicants relying on gang-related formulations must marshal concrete sociological or country-conditions evidence demonstrating recognition by the wider community—not merely by gangs themselves.
Strategic filings: Counsel should anticipate producing passports or other exit documents early if voluntary departure is contemplated.
Inter-circuit divergence: The Sixth Circuit continues to diverge from the Seventh on excusable late NTA challenges, potentially inviting Supreme Court reconciliation.

4 Complex Concepts Simplified

Notice to Appear (NTA): The charging document that starts removal proceedings; by statute it must list the hearing’s date/time. A defective NTA can be challenged, but in the Sixth Circuit the objection must be prompt.
Claim-Processing Rule vs. Jurisdictional Rule: A jurisdictional defect voids the court’s power and can be raised anytime; a claim-processing defect is waived if not timely asserted.
Particular Social Group (PSG): A protected ground for asylum/withholding claims. The group must have (1) immutable traits, (2) clear boundaries (particularity), and (3) widespread societal recognition (social distinction).
Withholding of Removal: Harder to win than asylum on future-harm probability (must show “more likely than not”), but slightly easier on causation. If no protected ground exists, both claims fail.
Convention Against Torture (CAT): Protects against removal when torture is more likely than not, and the government is involved or deliberately indifferent (“willful blindness”). Mere criminal threats are not enough without state complicity or acquiescence.
Voluntary Departure: A privilege allowing self-removal. Applicant must prove, among other things, the actual ability (passport, funds) and intent to depart.

5 Conclusion

While unpublished, Cobo-Lopez v. Bondi is a cautionary tale. Procedural missteps—specifically the failure to contest a defective NTA at the IJ stage—can be outcome-determinative. Substantively, the opinion tightens the evidentiary screws on gang-related PSG theories, underscoring the Sixth Circuit’s insistence on genuine societal recognition rather than self-defined victim categories. For immigration advocates, the message is twofold: argue early and document thoroughly.