Appellate Case: 23-9586 Document: 52-1 Date Filed: 08/05/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 5, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
ANA SOFIA CORTEZ; M.Y.A.C.,
Petitioners,
v. No. 23-9586 PAMELA J. BONDI, United States Attorney General,
Respondent. _________________________________
Petition for Review from the Board of Immigration Appeals _________________________________
Mark Robert Barr, Lichter Immigration, Denver, Colorado, for Petitioners.
M. Samer Budeir (Cindy S. Ferrier, Assistant Director, and Andrew N. O’Malley, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. _________________________________
Before HARTZ, McHUGH, and MORITZ, Circuit Judges. _________________________________
HARTZ, Circuit Judge. _________________________________
At proceedings before an immigration judge (IJ), Petitioners admitted that they
were removable but sought relief from removal on several grounds. When the IJ
denied relief, they tried to appeal to the Board of Immigration Appeals (the Board or
BIA). The BIA dismissed their appeal for failure of their attorney to sign the proof- Appellate Case: 23-9586 Document: 52-1 Date Filed: 08/05/2025 Page: 2
of-service form. They now petition this court to review a later decision of the BIA,
which rejected a second notice of appeal and an accompanying motion to accept their
initial notice of appeal.
Petitioners do not challenge the BIA’s rejection of their second notice of
appeal, so we affirm the rejection. Petitioners’ principal contention in this court is
that the BIA erred in holding that a signature was required in the proof-of-service
section of their initial notice-of-appeal form, while the government defends the BIA’s
holding and contends that, in any event, Petitioners waited too long to challenge the
BIA’s rejection of that filing. We conclude that Petitioners are correct on the
signature-requirement issue because the BIA’s holding was wrong as a matter of law.
And we decline to consider the government’s argument that the challenge to the
rejection was untimely because the BIA did not rely on that argument below.
Exercising jurisdiction under 8 U.S.C. § 1252, we vacate the BIA’s order and remand
for further proceedings not inconsistent with this opinion.
I. BACKGROUND
Petitioners Ana Sofia Cortez and M.Y.A.C., 1 her minor son, are natives and
citizens of El Salvador. Shortly after they entered the United States without
permission in 2021, the Department of Homeland Security (DHS) initiated removal
proceedings against them. In response, Ms. Cortez filed an application for asylum,
1 We refer to the child by his initials, in keeping with our policy of protecting minor children from public disclosure. 2 Appellate Case: 23-9586 Document: 52-1 Date Filed: 08/05/2025 Page: 3
withholding of removal, and protection under the Convention Against Torture. Her
son was listed as a derivative beneficiary on her application for asylum.
On June 21, 2022, the IJ denied Petitioners’ applications and ordered them
removed to El Salvador. Any notice of appeal had to be filed with the BIA “within 30
calendar days.” 8 C.F.R. § 1003.38(b).
Near the end of that 30-day window, on July 20, 2022, Petitioners’ attorney
filed a notice-of-appeal form. He did so via the Electronic Courts and Appeals
System (ECAS) of the Executive Office for Immigration Review (EOIR). After
specifying the reasons for the appeal, he signed his name on a signature line.
Regarding the proof of service, the form’s instructions stated: “Complete and, if
applicable, sign the ‘Proof of Service’ to show you did this . . . .” Admin. R. at 60
(emphasis added). In the proof-of-service section, below another signature line, the
attorney checked a box indicating: “No service needed. I electronically filed this
document, and the opposing party is participating in ECAS.” Id. at 113. He left blank
the signature line above the box. This section of the notice-of-appeal form is depicted
below:
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Id.
On August 1, 2022, the BIA sent Petitioners a “Rejected Filing” notice. Id. at
115. It said that their notice of appeal was “rejected for the following reasons”:
“Document(s) not signed or improperly signed (e.g. wrong person signed it).” Id. The
notice gave them 15 days to correct the error and request certification to permit a
discretionary appeal to the BIA. It stated:
We have rejected your appeal or motion for correction of the defect(s). If you correct and refile this appeal or motion, YOU MUST ATTACH THIS REJECTION NOTICE to the corrected document. THIS DOES NOT EXTEND THE ORIGINAL STRICT TIME LIMIT within which you must file your appeal or motion unless otherwise noted above. Where a stay attaches to the filing of an appeal, there is no automatic stay of removal beyond the 30-day limit unless an appeal is properly filed at the BIA. Any corrected appeal or motion refiled after the original time limit must be filed within 15 days from the date of this rejection and include this notice. If you make a request to the BIA to accept the appeal or motion by certification, you must also include this notice. The BIA will consider whether to certify each request in the exercise of discretion.
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Id. at 116. By this point, Petitioners’ original 30-day window to appeal had passed.
They did not refile within 15 days, nor did they ever move for certification.
On September 16, 2022, DHS sent Petitioners a “bag and baggage” letter
ordering them to appear at one of its offices on October 31 “to discuss and provide
[DHS] with travel arrangements” back to El Salvador. Id. at 76. Two weeks later,
Petitioners filed a motion asking the IJ to “exercise her sua sponte authority and
reopen removal proceedings and reissue” her June 21 decision. Id. at 98. They argued
that “[t]ime [was] of the essence” because they had to appear at the end of October,
and that their proposed “procedural mechanism” was “perhaps the easiest way to
address an apparent agency processing error.” Id. at 98, 101. After stating that the
BIA had rejected their notice-of-appeal form because the “[d]ocument[]” was either
“not signed or improperly signed (e.g. wrong person signed it),” they asserted that it
had been signed. Id. at 100. They said that they therefore inferred that it was rejected
because the BIA did not recognize their attorney as counsel of record. And if the
rejection was related to the proof of service, they argued, that was “clear error”
because “no proof of service is required when filing electronically through ECAS and
when [DHS] is the opposing party.” Id.
On November 3, 2022, the IJ denied their motion. She explained that a
“motion to reopen sua sponte is not meant to cure filing defects or circumvent
regulations.” Id. at 82.
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Meanwhile, in late October 2022, Petitioners had filed with the BIA a motion
to accept their July 2022 notice of appeal as timely, and a few days later they had
filed a notice of appeal of the IJ’s June 21 removal order together with their
attorney’s notice of entry of appearance. But on October 31 the BIA rejected each
filing as an “Improperly Combined Submission.” Id. at 89, 91.
A lot happened on December 5. First, Petitioners tried to file a notice of appeal
of the IJ’s November denial of their motion to reopen, but the BIA promptly rejected
it, noting that it was an “improperly combined submission,” and stating explicitly
that the “proof of service signature [was] missing.” Id. at 32. Counsel for Petitioners
called the BIA to ask why his filings were being rejected and was informed that there
was no signature on the proof-of-service page. Finally, later that afternoon, four
months after the BIA’s dismissal of Petitioners’ original appeal of the IJ’s denial of
their application for relief from removal, Petitioners filed another notice of appeal of
the IJ’s denial. This time, their counsel signed the proof-of-service section. Filed
with that notice of appeal was a motion for reconsideration, styled as a “Motion to
Accept Timely Appeal Erroneously Rejected by Board.” Id. at 56. As the motion’s
caption suggests, Petitioners contended that their July 2022 appeal had been timely
and the BIA’s rejection had been in error. Although the rejection had been “due to
the lack of a signature on the Proof of Service page,” id. at 59, they argued that no
service was required and thus no signature was required, because they had filed the
form electronically via ECAS. Not only that, they said, but signing the proof of
service would have violated the form’s instructions.
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On August 25, 2023, the BIA rejected Petitioners’ December 5 appeal of the
IJ’s June 2022 order and their motion to accept their July 2022 notice of appeal. First,
it said their December 5 appeal came too late:
The respondents’ appeal is untimely. A notice of appeal (“NOA”) must be filed within 30 calendar days of the Immigration Judge’s decision. 8 C.F.R. § 1003.38. The respondents’ appeal was due on July 21, 2022. The respondents submitted an appeal on July 20, 2022. However, that appeal was rejected for filing defects on August 1, 2022. Ultimately, the respondents submitted a properly completed and executed appeal on December 5, 2022. As such, the December 5, 2022, appeal was untimely filed. The respondents have not requested that the Board accept the appeal by certification, and we are unaware of any extraordinary circumstances that would warrant such an exercise of discretion.
Id. at 86. Second, the BIA rejected Petitioners’ argument (which had been made only
in the motion to accept the July 2022 notice of appeal) that it had erred in rejecting
their initial notice of appeal for lack of a signature in the proof of service:
The respondents argue that their NOA was filed timely but was rejected on August 1, 2022, in error (as were their subsequent motions to accept the appeal as timely filed). Specifically, they argue that they filed the NOA electronically through [ECAS] and, as such, they were not required to serve the NOA on DHS. Because they were not required to separately serve the NOA on DHS, they argue, the certificate of service did not have to be signed (though they point out that their attorney did sign the NOA). The respondents argue that the requirement that the certificate of service be signed is inconsistent with the NOA instructions which only require a signature “if applicable,” and that it is not applicable where service is effectuated through ECAS.
We are unpersuaded by the respondents’ argument. Specifically, although the respondents are correct that ECAS will effectuate service of the NOA on DHS, the Board nonetheless requires that the certificate of service be signed by the person executing the document, in addition to have [sic] having the appropriate box marked to reflect electronic filing. See BIA Practice Manual § 3.2(d) (Proof of Service); ECAS User Manual § 4. The Board does not deem the certificate of service ‘completed’ unless the appropriate box is marked and the form is signed.
7 Appellate Case: 23-9586 Document: 52-1 Date Filed: 08/05/2025 Page: 8
Id. at 86–87. As we understand the BIA decision, the first above-quoted paragraph is
its disposition of Petitioners’ December 5 notice of appeal, and the next two
paragraphs dispose of Petitioners’ motion to reconsider, which requested the BIA to
accept the July notice of appeal.
Petitioners timely petitioned for review of this decision.2 Their brief in this
court, however, does not challenge the rejection of their December notice of appeal.
Thus, we review only the denial of their motion to reconsider.
II. DISCUSSION
“The decision to grant or deny a motion to . . . reconsider is within the
discretion of the Board, subject to [restrictions in the regulations, not at issue in this
case].” 8 C.F.R. § 1003.2(a). “We review BIA decisions on motions to reopen and
motions to reconsider for an abuse of discretion.” Zapata-Chacon v. Garland, 51
F.4th 1191, 1195 (10th Cir. 2022) (internal quotation marks omitted). “If the BIA
commits a legal error—a determination we make de novo—it necessarily follows that
the BIA abused its discretion.” Estrada-Cardona v. Garland, 44 F.4th 1275, 1282
(10th Cir. 2022).
A motion to reconsider a decision must be filed within 30 days of the mailing
of the decision. See 8 C.F.R § 1003.2(b)(2). But “[t]he Board may at any time reopen
or reconsider on its own motion any case in which it has rendered a decision.” Id.
2 The BIA’s dismissal of Petitioners’ appeal from the IJ’s denial of their motion to reopen is not before us. See Pet. Br. at 7 (“That Board decision is not at issue here.”); Resp. Br. at 12 (same). 8 Appellate Case: 23-9586 Document: 52-1 Date Filed: 08/05/2025 Page: 9
§ 1003.2(a). Thus, an untimely motion to reconsider may be viewed by the BIA as a
motion to exercise its sua sponte authority to reconsider, which is the situation before
us. See Oral Arg. at 14:50–15:15 (Petitioners’ Counsel: “I’ve interpreted my motion
as a request for the Board to exercise its sua sponte authority to reconsider or reopen
a decision which it has made, and I’ve interpreted its ultimate denial of the motion,
and of the timeliness of the original notice of appeal, as its decision not to exercise its
discretionary, sua sponte authority.”). At least for the purposes of this appeal, our
standard of review is the same regardless of whether Petitioners’ motion was timely.
See Berdiev v. Garland, 13 F.4th 1125, 1130 (10th Cir. 2021) (“[T]his Court
generally lacks jurisdiction to review a BIA decision as to whether to reopen sua
sponte, because there are no standards by which to judge the agency’s exercise of
discretion. We may, however, remand where the BIA bases its discretionary decision
on an incorrect legal premise.” (citation and internal quotation marks omitted)).
Therefore, for simplicity we will refer to Petitioners’ motion as a motion to
reconsider rather than as a motion to exercise sua sponte authority.
A. Purported Signature Requirement
Petitioners contend that the BIA erred as a matter of law in holding that their
attorney was required to sign their notice-of-appeal form’s proof-of-service section,
even though he filed electronically and checked a box confirming that no separate
service was needed. Based on the BIA form and its regulations at that time, we agree.
Because the BIA predicated its denial of Petitioners’ motion to reconsider on an
9 Appellate Case: 23-9586 Document: 52-1 Date Filed: 08/05/2025 Page: 10
erroneous view of the law, we must reverse that denial and remand for further
proceedings.
To begin with, the instructions for the form itself indicate that no signature is
required for the proof of service when service is made electronically. The instructions
state that electronic filers need not serve the opposing party:
Mail or give a copy of the completed Notice of Appeal and any attached documents to the opposing party, if applicable. Electronic filers are not required to serve the opposing party if the opposing party is participating in ECAS. EOIR’s ECAS system will provide an electronic service notification to participating parties.
Admin. R. at 60 (emphasis added). And they also indicate (rather logically) that there
is no signing requirement when the appellant is not responsible for service:
Complete and, if applicable, sign the ‘Proof of Service’ to show you did this . . . .
Id. (emphasis added); see General Instructions for Form EOIR-26 at 2 (revised Nov.
2022), available at https://www.justice.gov/eoir/eoir-forms (current version using
identical language).
The government admits that the if-applicable sentence “injects a degree of
ambiguity into the process.” Resp. Br. at 22. But that is an understatement. The form
clearly implies that there are situations where signing the proof of service is
inapplicable. And the obvious situation is where it is unnecessary to “show you did
this”—serve the opposing party—because you filed electronically. Admin. R. at 60.
Petitioners did not violate the form’s inartful instructions by checking the
“[n]o service needed” box and leaving the signature line above it blank. Id. at 113.
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The later revision of the form’s proof-of-service section does not help the
government’s argument. The revision places the signature line below the checkbox,
which better suggests that a signature is required even if the box is checked. See
Form EOIR-26 (revised Nov. 2022). This move only cements our conclusion.3
The government also relies on official publications, which it claims require the
signature not provided by Petitioners’ attorney. Even if we accepted this argument,
due-process concerns would make us hesitate to penalize Petitioners for complying
with the most reasonable interpretation of the form’s instructions. But we need not
address that issue because we do not accept the government’s interpretation of its
documents. Nothing in the relevant regulations or agency manuals suggests that a
signature was required on the proof-of-service section in the circumstances presented
here.
3 The government points to two notice-of-entry-of-appearance forms that Petitioners’ counsel filed with the BIA the day before he filed the initial notice of appeal, where, in the proof-of-service sections, he checked the boxes saying “[n]o service needed” and signed the signature lines. Admin. R. at 108, 110. Based on these filings, the government asserts that “Petitioners cannot reasonably claim that they were unaware that their proof of service should include a signature or that they were confused by the requirement.” Resp. Br. at 23. This argument is unpersuasive. It ignores that the format of the entry-of-appearance forms was different from that of the original notice-of-appeal form, in that their signature lines were placed below the no-service-needed checkboxes, instead of above them. Again, this layout better suggested that a signature was required even if the box was checked, whereas the latter design suggested the opposite. More importantly, however, Petitioners’ understanding of these forms is irrelevant to our conclusion that, as a matter of law, the proof-of-service section in the original notice-of-appeal form did not require a signature if the box was checked. 11 Appellate Case: 23-9586 Document: 52-1 Date Filed: 08/05/2025 Page: 12
To begin with, the BIA cited the “Notice of appeal” regulation providing that
an “appeal must reflect proof of service of a copy of the appeal and all attachments
on the opposing party.” 8 C.F.R. § 1003.3(a)(1). The regulation also provides,
however, that “[i]f all parties are using EOIR’s electronic filing application in a
specific case, the parties do not need to serve a document that is filed through EOIR’s
electronic filing application on the opposing party,” because the “application will
effectuate service by providing a notification of all electronically filed documents on
all parties by email.” Id. § 1003.3(g)(6)(i) (emphasis added). On the subject of
signatures, the regulation just says that “[a]ll documents filed with the Board that
require a signature must have an original, handwritten ink signature, an encrypted
digital signature, or an electronic signature,” and that “[e]lectronic filings submitted
through EOIR’s electronic filing application that require the user’s signature may
have a conformed signature.” Id. § 1003.3(g)(5) (emphasis added). This language
does not support the BIA’s position, because it describes only how to submit a
signature, not when a signature is required. Here, Petitioners’ counsel did sign the
“document[],” i.e., the notice-of-appeal form. Id. And to nail the lid shut on the
government’s reliance on § 1003.3, the regulation in any event defers to the language
on the form, saying in the final sentence, “This paragraph is subject to the
requirements of the application or document being submitted.” In short, 8 C.F.R.
§ 1003.3 is silent on whether the proof of service must be signed. The government
concedes as much—for this regulation as well as all others. See Resp. Br. at 20
12 Appellate Case: 23-9586 Document: 52-1 Date Filed: 08/05/2025 Page: 13
(“[T]he regulations in effect, as now, did not expressly state that the proof of service
must bear a signature.”).
The agency manuals that the BIA relied on do not support its holding either.
True, the version of the BIA’s Practice Manual available when Petitioners filed their
original notice of appeal stated, “Every Proof of Service must be signed by the
person serving the document.” EOIR, Board of Immigration Appeals Practice
Manual § 3.2(d) at 36 (Jan. 8, 2021). But the directive “must be signed” is limited by
the phrase “by the person serving the document.” Id. (emphasis added). It does not
address the situation at hand, where a person did not serve the document—a machine
automatically did—and the document therefore indicated that no separate service was
necessary.
Moreover, the manual said almost nothing about electronic filing and, in
particular, it did not recognize electronic filing of notices of appeal. All it said about
filing was: (1) “All filings to the Board must be sent to [a specified] street address,”
id. § 3.1(a)(iii) at 31 (emphasis added); (2) “The Board does not accept faxes or other
electronic transmissions without prior authorization,” id. § 3.1(a)(v)(A) at 32; and (3)
“The Board does not have electronic filing for any other forms or documents” besides
notices of entries of appearance, id. § 3.1(a)(vi) at 33. And regarding signatures on
notices of appearance, the manual said that “the electronic acknowledgment and
submission of the Form EOIR-27 constitutes the signature of the alien’s
representative,” and that “[o]ther computer-generated signatures . . . are not
acceptable on documents filed with the Board.” Id. § 3.3(b)(ii) at 38. The manual
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does not even recognize the method of service expressly allowed by Form EOIR-26.
It hardly supports the government’s argument.
The government also relies on manuals issued after Petitioners filed their
initial notice of appeal with the BIA. Of course, they could not be binding on
Petitioners. In short, the BIA’s rejection of Petitioners’ motion for reconsideration
was predicated on an error of law and must be set aside.
B. Timeliness of the Challenge
Alternatively, the government contends that Petitioners failed to take “timely
action” after the BIA rejected their initial notice of appeal. Resp. Br. at 15. The
government asserts that they had the opportunity to raise the signature-requirement
issue with the BIA in a “timely pleading,” but they did not. Id. at 11. Instead, the
government says, they “chose not to take corrective action for months.” Id. at 16. The
government thus implies that the motion to reconsider could have been properly
denied as untimely.
But the BIA did not state that ground for denying the motion. And ordinarily
we “are not at liberty to search the law and the record for reasoning to support the
BIA’s decision because a court may not uphold an agency action on grounds not
relied on by the agency.” Zapata-Chacon, 51 F.4th at 1196 (internal quotation marks
omitted) (noting, however, that “we can avoid a remand if it would be futile”); see
Sarr v. Gonzales, 474 F.3d 783, 791 (10th Cir. 2007) (“By refraining from deciding
immigration appeals on the basis of grounds not expressly or impliedly adopted by
the BIA, we safeguard agency decision making by ensuring that the agency itself
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makes the decisions entrusted to its authority based on grounds articulated by that
entity.” (internal quotation marks omitted)). Because the sole ground stated by the
BIA for denying Petitioners’ motion to reconsider was legally unsound, we must set
aside that denial.
III. CONCLUSION
We VACATE the BIA’s decision and REMAND to the BIA for such further
proceedings, not inconsistent with this opinion, as may be appropriate.