Flavia Coatl-Chiquito entered the United States in 2004 without documentation. After a traffic accident involving other migrants, she was detained and served with a notice-to-appear that did not specify the date or time of her hearing. She was later mailed a notice of hearing for December 2004 but failed to appear, leading to an in absentia removal order. For sixteen years, the case remained dormant until the Supreme Court issued decisions in Pereira v. Sessions and Niz-Chavez v. Garland, which clarified that a notice-to-appearing missing the date and time is defective and cannot be cured by a subsequent notice. Relying on these rulings, Coatl-Chiquito filed a motion to reopen, arguing the deadline should be equitably tolled. When that was denied, she filed a second motion claiming she never received proper notice. The Immigration Judge and the Board of Immigration Appeals denied both motions, holding that Niz-Chavez did not toll the deadline and that her second motion was barred by the one-motion limit. Coatl-Chiquito appealed, also challenging the Board's refusal to reopen the case sua sponte.
The Seventh Circuit addressed three primary arguments. First, regarding equitable tolling, the court held that while the statutory deadlines are non-jurisdictional claim-processing rules subject to tolling, an 'extraordinary circumstance' must block the petitioner's path. The court found that Niz-Chavez did not constitute such a circumstance for Coatl-Chiquito because the defect in her notice-to-appear—the missing date and time—was ascertainable when she was personally served in 2004. Citing precedent from Pereira, the court reasoned that petitioners cannot wait for a favorable change in law to challenge defects that were identifiable at the time of their initial hearing. By failing to raise the objection earlier, she did not diligently pursue her rights. Second, the court addressed the numerical bar. The Immigration and Nationality Act limits an alien to one motion to reopen. Coatl-Chiquito argued that regulations excusing the numerical limit for lack of notice applied to her. The court clarified that while regulations for deportation proceedings excuse both time and numerical limits for lack of notice, the regulations governing her removal proceedings only excused the time limit, not the numerical limit. Since she had already filed one motion, her second was barred. Third, regarding sua sponte reopening, the court noted that the Board's decision to deny such a motion is generally unreviewable. The court found no constitutional transgression or legal error in the Board's brief explanation that the claims did not persuade them to exercise their discretionary power.
The final order of removal against Flavia Coatl-Chiquito remains in effect. The decision reinforces the Seventh Circuit's precedent that statutory deadlines for motions to reopen are strict when the underlying defect was knowable at the time of the initial hearing, regardless of subsequent Supreme Court clarifications. It also clarifies that the numerical bar on motions to reopen applies strictly to removal proceedings, even when a lack-of-notice claim is raised. The ruling leaves open the question of whether a petitioner could have raised the issue earlier, but confirms that waiting for a change in law does not excuse the failure to act diligently.
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