Background
Patricio Nieves Tenecela, a native and citizen of Ecuador, entered the United States without inspection in 2003. He was served with a Notice to Appear that did not list the date or time of his hearing. He failed to appear at a subsequent hearing notified by a separate Notice of Hearing and was ordered removed in absentia. He filed multiple motions to reopen, arguing the defective Notice to Appear triggered the stop-time rule differently under recent Supreme Court precedent and that he became eligible for cancellation of removal after the removal order was entered.
The court’s reasoning
The court reviewed the BIA’s denial of the fourth motion to reopen for abuse of discretion. It found that the BIA reasonably concluded that Nieves Tenecela’s potential eligibility for relief did not excuse the time and number limitations. The court noted that a defective Notice to Appear does not deprive the immigration court of jurisdiction and that the petitioner received adequate notice of the hearing he missed. The court also held that changes in decisional law are not extraordinary circumstances for equitable tolling. Regarding the request for sua sponte reopening, the court stated it lacks jurisdiction to review the BIA’s discretionary decision not to exercise that power.
What it means going forward
The decision reinforces that equitable tolling is generally unavailable for motions to reopen based solely on changes in legal interpretation that occur after a removal order is entered. It also confirms the Eleventh Circuit’s lack of jurisdiction over BIA decisions declining to reopen cases sua sponte.
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