Carhuamaca-Vilcahuaman v. Bondi

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 26, 2025
• Docket: 25-9533
• Status: Unpublished

Opinion

Appellate Case: 25-9533 Document: 21-1 Date Filed: 11/26/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 26, 2025 _________________________________ Christopher M. Wolpert Clerk of Court CATALINA CARHUAMACA- VILCAHUAMAN; AYELEN Z. DE LA CRUZ-CARHUAMACA; KATLYN V. DE LA CRUZ-CARHUAMACA; JHON DE LE CRUZ-ESCOBAR,

Petitioners,

v. No. 25-9533 (Petition for Review) PAMELA J. BONDI, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges. _________________________________

Petitioners seek review of a decision of the Board of Immigration Appeals

(“Board”) denying their motion for reconsideration of the Board’s denial of their

motion to reopen. We dismiss the petition in part for lack of jurisdiction and,

After examining the briefs and appellate record, this panel has determined *

unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-9533 Document: 21-1 Date Filed: 11/26/2025 Page: 2

exercising jurisdiction over the remainder of the petition under 8 U.S.C.

§ 1252(a)(1), 1 deny the petition for review.

I. BACKGROUND

Petitioners are natives and citizens of Peru who entered the United States in

2022 without admission or inspection by an immigration official. They were served

Notices to Appear charging each of them with removability pursuant to 8 U.S.C.

§ 1182(a)(6)(A)(i) as noncitizens present in the United States without admission or

parole. They admitted the charges and applied for asylum, withholding of removal,

and relief under the United Nations Convention Against Torture. An immigration

judge denied relief and ordered them removed to Peru. Petitioners timely appealed to

the Board. On May 3, 2024, the Board dismissed the appeal (May 3 Order).

On June 5, 2024, Petitioners filed a motion with the Board seeking to extend

their June 3, 2024, deadline for filing with this court a petition for review of the

Board’s dismissal of their appeal. 2 See R. vol. 3 at 501–03. They argued that

although their counsel had drafted a petition for review prior to June 3, he had “an

intervening medical issue requiring surgery and was on medical leave at the time of

the due date for Petitioner[s’] appeal.” Id. at 502. On August 23, 2024, the Board

See Mata v. Lynch, 576 U.S. 143, 147 (2015) (explaining that § 1252(a)(1) 1

“encompasses review of decisions refusing to reopen or reconsider”). 2 See 8 U.S.C. § 1252(b)(1) (“The petition for review must be filed not later than 30 days after the date of the final order of removal”). The Supreme Court has recently clarified that this “30-day filing rule is not jurisdictional.” Riley v. Bondi, 606 U.S. 259, 277 (2025). 2 Appellate Case: 25-9533 Document: 21-1 Date Filed: 11/26/2025 Page: 3

rejected that motion, stating that it had “rendered a decision on this case on

5-3-2024” and that if Petitioners “intend to file a motion to reopen or reconsider[,] it

needs to be filed as an initiating document.” R. vol. 1 at 101.

On September 18, 2024, Petitioners filed a motion to reopen with the Board.

They asked the Board to reopen the case and reissue the May 3 Order so that they

could timely file a petition for review with this court. In support, they reiterated the

details of their attorney’s medical leave and stated that on September 6, counsel had

spoken “with a member of the Board’s Clerk staff to gather more detailed

information about the reason” the Board had rejected their June 5 motion. Id. at 77.

On December 19, 2024, the Board denied the motion to reopen as untimely.

The Board explained that under 8 U.S.C. § 1229a(c)(7)(C)(i) and associated

regulations, a motion to reopen must generally be filed no later than 90 days after

entry of a final administrative order of removal. The Board observed that Petitioners

failed to meet that deadline because they filed their motion to reopen more than four

months after the May 3 Order and they had “not shown that any statutory or

regulatory exception to the time . . . limitations for motions to reopen apply in this

case.” Id. at 71. The Board found that the case did not present an “exceptional

situation” warranting the exercise of the Board’s authority to reopen proceedings sua

sponte. Id. The Board stated it had “no authority to extend the time limit for filing a

petition for review.” Id. at 72. The Board further stated that although it had on

occasion “reissued [its] decisions,” it had “generally” done so “only due to error by

the Board or administrative problems involving receipt of the decision,” and

3 Appellate Case: 25-9533 Document: 21-1 Date Filed: 11/26/2025 Page: 4

Petitioners had not alleged that the Board had erred or that they had not received the

May 3 Order. Id. Petitioners did not file a petition for review of the denial of their

motion to reopen.

On January 21, 2025, Petitioners filed a motion for reconsideration of the

Board’s denial of their motion to reopen. See id. at 9–13. Petitioners argued that the

Board should apply equitable tolling to their motion to reopen based on their

attorney’s May 28 surgery, his associated medical leave until June 4, 2024, and the

diligence shown by the June 5 motion seeking an extension of time to file a petition

for review of the May 3 Order. See id. at 12–13. They also asked the Board to

exercise its discretion to reopen the proceedings sua sponte and reissue the May 3

Order so they could file a timely petition for review, arguing that the Board should

not count the time their June 5 motion was pending before the Board against the

90-day deadline for motions to reopen. See id. at 13.

The Board denied the motion to reconsider. The Board observed that although

a motion to reconsider must “‘specify the errors of law or fact in the previous order’”

and must “‘be supported by pertinent authority,’” R. vol. 1 at 3 (quoting 8 U.S.C.

§ 1229a(c)(6)(C)), Petitioners did not present any errors of fact or law in the Board’s

order denying their motion to reopen. Instead, Petitioners asked for “equitable

tolling of the filing deadline for their prior motion to reopen, but they did not raise

this issue in that motion,” and “[a] motion to reconsider is not an opportunity to make

new arguments that could have been raised earlier.” Id. (citing In re O-S-G-,

24 I. & N. Dec. 56, 58 (B.I.A. 2006)). The Board also rejected Petitioners’ renewed

4 Appellate Case: 25-9533 Document: 21-1 Date Filed: 11/26/2025 Page: 5

request for sua sponte reopening because “a motion to reconsider is not a process by

which a party may present the same argument that was previously raised and

rejected.” Id. at 4 (citing In re O-S-G-, 24 I. & N. Dec. at 58). The Board stated that

Petitioners had “not identified any factors that were overlooked or alleged any

specific errors of fact or law in [the Board’s] decision declining to reopen

proceedings.” Id. In addition, the Board declined to exercise its sua sponte authority

to reconsider its denial of Petitioners’ motion to reopen because its “sua sponte

authority ‘is not meant to be used as a general cure for filing defects or to otherwise

circumvent the regulations, where enforcing them might result in hardship.’”

Id. (quoting In re J-J-, 21 I. & N. Dec. 976, 984 (B.I.A. 1997)).

Petitioners now seek review of the Board’s order denying their motion to

reconsider.

II. DISCUSSION

We first address the Board’s denial of the motion to reconsider then turn to its

denial of sua sponte reopening and reconsideration.

A. Denial of motion to reconsider

We review the Board’s denial of a motion to reconsider for an abuse of

discretion. Berdiev v. Garland, 13 F.4th 1125, 1130 (10th Cir. 2021). “The [Board]

abuses its discretion when its decision provides no rational explanation, inexplicably

departs from established policies, is devoid of any reasoning, or contains only

summary or conclusory statements.” Id. at 1130–31 (internal quotation marks

5 Appellate Case: 25-9533 Document: 21-1 Date Filed: 11/26/2025 Page: 6

omitted). “Committing a legal error . . . is necessarily an abuse of discretion.” Id.

at 1131 (brackets and internal quotation marks omitted).

Petitioners contend that in denying their motion for reconsideration, the Board

“overlooked the factual indicators and circumstances” they raised in their motion to

reopen that “could lead the [Board] to apply the doctrine of equitable tolling,”

namely, their “diligent efforts to pursue [their] immigration claims” since entry into

the United States, their attorney’s surgery, and their attorney’s diligence in

attempting to preserve their rights. Pet’r’s Br. at 6–7. They admit that their motion

to reopen did not explicitly refer to equitable tolling, but they claim the motion to

reopen referenced equitable tolling by mentioning “the best interest of justice,” R.

vol. 1 at 77, and therefore the express request for equitable tolling set out in their

motion for reconsideration was not a “new argument,” Pet’r’s Br. at 8.

We are not persuaded that the Board abused its discretion in deeming the

equitable-tolling argument a new argument and therefore not a basis for granting

reconsideration. First, in their motion for reconsideration, Petitioners did not argue

(as they do here) that the Board should have construed their motion to reopen as

requesting equitable tolling of the 90-day deadline to file the motion to reopen.

Instead, they simply asked the Board to apply equitable tolling to their untimely

motion to reopen. Second, to the extent the motion to reopen could be read as

invoking equitable tolling through its general reference to “the best interest of

justice,” R. vol. 1 at 77, it did so only with respect to the deadline to file the petition

for review, not with respect to the motion to reopen itself. Specifically, in the motion

6 Appellate Case: 25-9533 Document: 21-1 Date Filed: 11/26/2025 Page: 7

to reopen, Petitioners did not advance any explanation why their attorney’s surgery

and medical leave, which ended on June 4, 2024, prevented him from filing a motion

to reopen within 90 days of the May 3 Order. In fact, they did not even acknowledge

that the motion to reopen was untimely.

For these reasons, we conclude that the Board did not abuse its discretion in

denying the motion to reconsider on the ground that Petitioners did not specify any

errors of fact or law in the order denying the motion to reopen but instead raised a

new argument that could have been presented in the motion to reopen. The Board’s

ruling was consistent with Board precedent. See In re O-S-G-, 24 I. & N. Dec. at 58

(“A motion to reconsider based on a legal argument that could have been raised

earlier in the proceedings will be denied.”).

B. Denial of sua sponte reopening and reconsideration

“The Board may at any time reopen or reconsider on its own motion any case

in which it has rendered a decision.” 8 C.F.R. § 1003.2(a). We generally lack

jurisdiction to review the Board’s decision not to exercise this sua sponte authority

“because there are no standards by which to judge the agency’s exercise of

discretion.” Reyes-Vargas v. Barr, 958 F.3d 1295, 1300 (10th Cir. 2020) (internal

quotation marks omitted). But under a narrow exception, we may review whether the

Board relied “on an incorrect legal premise” or “misperceived the legal background.”

Id. (internal quotation marks omitted).

Petitioners do not acknowledge the jurisdictional impediment at all, let alone

argue that the Board relied on an incorrect legal premise or misperceived the legal

7 Appellate Case: 25-9533 Document: 21-1 Date Filed: 11/26/2025 Page: 8

background. Instead, they seem to argue that the Board should have granted

reopening sua sponte in the interests of justice because the Board allegedly

overlooked the equitable-tolling argument they claim they made in their motion to

reopen. See Pet’r’s Br. at 9. This argument asks only whether the Board should have

decided that the renewed request for sua sponte reopening presented the sort of

exceptional situation for which the Board’s sua sponte authority is reserved. See,

e.g., In re G-D-, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999) (en banc) (explaining

that the Board’s “sua sponte authority” is “an extraordinary remedy reserved for truly

exceptional situations”). Because the argument does not implicate the concerns that

fall within the narrow jurisdictional exception, we lack jurisdiction to review it. 3

More fundamentally, Petitioners’ argument ignores the reasons the Board gave

for declining to exercise its sua sponte authority. Nonetheless, we have reviewed

those reasons, and to the extent we have jurisdiction under the narrow exception set

out in Reyes-Vargas, we see no error. The Board denied Petitioners’ request to

reopen sua sponte because they had previously requested reopening, and “a motion to

reconsider is not a process by which a party may present the same argument that was

previously raised and rejected.” R. vol. 1 at 4. In support of that rationale, the Board

cited In re O-S-G-, 24 I. & N. Dec. at 58, which explains: “[A] motion to reconsider

is not a process by which a party may submit, in essence, the same brief presented on

3 In addition, the argument’s premise is flawed given our determination that the Board did not abuse its discretion in concluding Petitioners did not argue in the motion to reopen that equitable tolling should excuse the untimeliness of that motion. 8 Appellate Case: 25-9533 Document: 21-1 Date Filed: 11/26/2025 Page: 9

appeal and seek reconsideration by generally alleging error in the prior Board

decision.” And the Board refused to exercise its sua sponte authority to reconsider its

denial of Petitioners’ motion to reopen because that authority “‘is not meant to be

used as a general cure for filing defects or to otherwise circumvent the regulations,

where enforcing them might result in hardship.’” R. vol. 1 at 4 (quoting In re J-J-,

21 I. & N. Dec. at 984). In addition to quoting from In re J-J-, the Board cited In re

G-D-, apparently for the principle that “[a]s a general matter,” the Board “invoke[s]

[its] sua sponte authority sparingly, treating it not as a general remedy for any

hardships created by enforcement of the time and number limits in the motions

regulations, but as an extraordinary remedy reserved for truly exceptional situations,”

22 I. & N. Dec. at 1133–34.

Because the Board’s reasons are consistent with the precedent the Board relied

on, we conclude that the Board did not rely “on an incorrect legal premise” or

“misperceive[] the legal background,” Reyes-Vargas, 958 F.3d at 1300 (internal

quotation marks omitted), in declining to exercise its sua sponte authority to reopen

or reconsider.

III. CONCLUSION

We dismiss the petition for review in part for lack of jurisdiction and

otherwise deny the petition.

Entered for the Court

Gregory A. Phillips Circuit Judge