NOT RECOMMENDED FOR PUBLICATION File Name: 25a0164n.06
No. 24-3798
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 26, 2025 KELLY L. STEPHENS, Clerk ) ENRIQUE PEREZ-RODRIGUEZ, ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS PAMELA BONDI, Attorney General, ) ) OPINION Respondent. )
Before: SUHRHEINRICH, MOORE, and NALBANDIAN, Circuit Judges.
SUHRHEINRICH, Circuit Judge: Enrique Perez-Rodriguez (“Petitioner”) seeks review
after the Board of Immigration Appeals (“Board”) denied his untimely motion to reopen. Because
the Board did not abuse its discretion, we deny the petition.
I.
Petitioner, a native and citizen of Guatemala, entered the United States without inspection
in 2014, and was charged with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner
conceded removability and applied for asylum, withholding of removal under the Immigration and
Nationality Act (“INA”), and protection under the regulations implementing the Convention
Against Torture (“CAT”) based on his membership in a particular social group. On October 8,
2019, the immigration judge held a hearing and issued an oral decision, finding Petitioner
removable as charged and denied his requests for asylum, withholding, and protection under the
CAT. No. 24-3798, Perez-Rodriguez v. Bondi
Petitioner appealed to the Board. The Board dismissed the appeal on February 26, 2021.
Petitioner filed a petition for review of the Board’s decision in a timely manner, on March 24,
2021. See Perez-Rodriguez v. Garland, No. 21-3285; 8 U.S.C. §1252(b)(1). But he failed to file
an Opening Brief within the allotted time, so we dismissed the petition for failure to prosecute on
November 1, 2021.
Meanwhile on April 29, 2021, the Supreme Court issued Niz-Chavez v. Garland, 593 U.S.
155 (2021), which reiterated the Court’s ruling in Pereira v. Sessions, 585 U.S. 198 (2018), that a
notice to appear missing the time or place of a removal hearing “is not a ‘notice to appear under
[8 U.S.C. §] 1229(a)’” for purposes of triggering the “stop-time rule” set forth in § 1229b(d)(1)(A),
which measures a nonpermanent resident’s continuous physical presence in the United States to
determine whether he qualifies for cancellation of removal. Pereira¸ 585 U.S. at 202; 8 U.S.C.
§ 1229b(b)(1)(A) (requiring ten years of continuous presence in the United States). Under
§ 1229b(d)(1)(A), continuous presence ends when the noncitizen is served a notice to appear under
§ 1229a. Pereira, 585 U.S. at 201. A proper notice to appear sufficient to trigger the stop-time
rule must include the time and place of the initial hearing. Id. at 202; see also 8 U.S.C.
§ 1229(a)(1)(G)(i) and 8 C.F.R. § 1003.14(a).
Petitioner filed a motion to reopen before the Board, arguing that the immigration judge
lacked jurisdiction1 because Petitioner’s original Notice to Appear (“NTA”) dated May 18, 2014,
omitted the time and date of his removal hearing. But he didn’t file the motion to reopen until
September 11, 2023, which was two and one-half years after the Board’s final order of removal
and more than a year after we had dismissed Petitioner’s first petition for review.
1 Petitioner rightly does not pursue this issue on appeal. See Ramos Rafael v. Garland, 15 F.4th 797, 800–01 (6th Cir. 2021) (holding that Pereira and Niz-Chavez do not address an immigration court’s jurisdiction).
-2- No. 24-3798, Perez-Rodriguez v. Bondi
As relevant here, Petitioner also contended that Niz-Chavez established that his initial NTA
in 2014 did not stop the time clock measuring his continuous presence in the United States for
purposes of voluntary departure, which requires that an alien be physically present in the United
States for at least one year before receiving a notice to appear. See 8 U.S.C. § 1229c(b)(1)(A).
Finally, Petitioner asserted that equitable tolling was warranted.
The Board denied the petition. Before us, Petitioner contends that the Board abused its
discretion in denying his motion to reopen because he is (1) eligible for voluntary departure due
to a change in the law and (2) a suitable candidate for equitable tolling. Petitioner also moves to
stay removal proceedings pending our resolution of his petition.
II.
We have jurisdiction over a petition for review of the Board’s denial of a motion to reopen.
8 U.S.C. § 1252(a)(1); Guerrero-Lasprilla v. Barr, 589 U.S. 221, 226 (2020).
“A motion to reopen is a form of procedural relief that asks the Board to change its decision
in light of newly discovered evidence or a change in circumstances since the hearing.” Dada v.
Mukasey, 554 U.S. 1, 12 (2008) (internal quotation marks omitted). Said motion must be filed
within 90 days of the final administrative decision at issue. 8 C.F.R. § 1003.2(c)(2). The Board
“retains broad discretion to grant or deny” a motion to reopen, Alizoti v. Gonzalez, 477 F.3d 448,
451 (6th Cir. 2007), and we review for abuse of discretion. Santos-Santos v. Barr, 917 F.3d 486,
489 (6th Cir. 2019). The Board abuses its discretion if its decision lacks a rational explanation,
departs from established policies, or rests on an impermissible basis like invidious discrimination.
Lopez v. Garland, 990 F.3d 1000, 1002 (6th Cir. 2021).
As the Board held, Petitioner’s motion to reopen missed the deadline by a long shot. The
Board entered its final order of removal on February 26, 2021. Petitioner’s motion was therefore
-3- No. 24-3798, Perez-Rodriguez v. Bondi
due by May 27, 2021. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). But he didn’t
file it until September 11, 2023.
To get around the timely filing requirement, Petitioner argues that the Board abused its
discretion when it refused to toll the motion because the Pereira/Niz-Chavez precedent provided
an exceptional circumstance that justified equitable relief. For that to happen, Petitioner had to
establish that he diligently pursued his rights yet was impeded by extraordinary circumstances.
Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008) (articulating five factors generally used to
determine equitable tolling, including due diligence). But, as the Board not unreasonably
concluded, Petitioner was not diligent because Niz-Chavez was decided “about two months after
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NOT RECOMMENDED FOR PUBLICATION File Name: 25a0164n.06
No. 24-3798
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 26, 2025 KELLY L. STEPHENS, Clerk ) ENRIQUE PEREZ-RODRIGUEZ, ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS PAMELA BONDI, Attorney General, ) ) OPINION Respondent. )
Before: SUHRHEINRICH, MOORE, and NALBANDIAN, Circuit Judges.
SUHRHEINRICH, Circuit Judge: Enrique Perez-Rodriguez (“Petitioner”) seeks review
after the Board of Immigration Appeals (“Board”) denied his untimely motion to reopen. Because
the Board did not abuse its discretion, we deny the petition.
I.
Petitioner, a native and citizen of Guatemala, entered the United States without inspection
in 2014, and was charged with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner
conceded removability and applied for asylum, withholding of removal under the Immigration and
Nationality Act (“INA”), and protection under the regulations implementing the Convention
Against Torture (“CAT”) based on his membership in a particular social group. On October 8,
2019, the immigration judge held a hearing and issued an oral decision, finding Petitioner
removable as charged and denied his requests for asylum, withholding, and protection under the
CAT. No. 24-3798, Perez-Rodriguez v. Bondi
Petitioner appealed to the Board. The Board dismissed the appeal on February 26, 2021.
Petitioner filed a petition for review of the Board’s decision in a timely manner, on March 24,
2021. See Perez-Rodriguez v. Garland, No. 21-3285; 8 U.S.C. §1252(b)(1). But he failed to file
an Opening Brief within the allotted time, so we dismissed the petition for failure to prosecute on
November 1, 2021.
Meanwhile on April 29, 2021, the Supreme Court issued Niz-Chavez v. Garland, 593 U.S.
155 (2021), which reiterated the Court’s ruling in Pereira v. Sessions, 585 U.S. 198 (2018), that a
notice to appear missing the time or place of a removal hearing “is not a ‘notice to appear under
[8 U.S.C. §] 1229(a)’” for purposes of triggering the “stop-time rule” set forth in § 1229b(d)(1)(A),
which measures a nonpermanent resident’s continuous physical presence in the United States to
determine whether he qualifies for cancellation of removal. Pereira¸ 585 U.S. at 202; 8 U.S.C.
§ 1229b(b)(1)(A) (requiring ten years of continuous presence in the United States). Under
§ 1229b(d)(1)(A), continuous presence ends when the noncitizen is served a notice to appear under
§ 1229a. Pereira, 585 U.S. at 201. A proper notice to appear sufficient to trigger the stop-time
rule must include the time and place of the initial hearing. Id. at 202; see also 8 U.S.C.
§ 1229(a)(1)(G)(i) and 8 C.F.R. § 1003.14(a).
Petitioner filed a motion to reopen before the Board, arguing that the immigration judge
lacked jurisdiction1 because Petitioner’s original Notice to Appear (“NTA”) dated May 18, 2014,
omitted the time and date of his removal hearing. But he didn’t file the motion to reopen until
September 11, 2023, which was two and one-half years after the Board’s final order of removal
and more than a year after we had dismissed Petitioner’s first petition for review.
1 Petitioner rightly does not pursue this issue on appeal. See Ramos Rafael v. Garland, 15 F.4th 797, 800–01 (6th Cir. 2021) (holding that Pereira and Niz-Chavez do not address an immigration court’s jurisdiction).
-2- No. 24-3798, Perez-Rodriguez v. Bondi
As relevant here, Petitioner also contended that Niz-Chavez established that his initial NTA
in 2014 did not stop the time clock measuring his continuous presence in the United States for
purposes of voluntary departure, which requires that an alien be physically present in the United
States for at least one year before receiving a notice to appear. See 8 U.S.C. § 1229c(b)(1)(A).
Finally, Petitioner asserted that equitable tolling was warranted.
The Board denied the petition. Before us, Petitioner contends that the Board abused its
discretion in denying his motion to reopen because he is (1) eligible for voluntary departure due
to a change in the law and (2) a suitable candidate for equitable tolling. Petitioner also moves to
stay removal proceedings pending our resolution of his petition.
II.
We have jurisdiction over a petition for review of the Board’s denial of a motion to reopen.
8 U.S.C. § 1252(a)(1); Guerrero-Lasprilla v. Barr, 589 U.S. 221, 226 (2020).
“A motion to reopen is a form of procedural relief that asks the Board to change its decision
in light of newly discovered evidence or a change in circumstances since the hearing.” Dada v.
Mukasey, 554 U.S. 1, 12 (2008) (internal quotation marks omitted). Said motion must be filed
within 90 days of the final administrative decision at issue. 8 C.F.R. § 1003.2(c)(2). The Board
“retains broad discretion to grant or deny” a motion to reopen, Alizoti v. Gonzalez, 477 F.3d 448,
451 (6th Cir. 2007), and we review for abuse of discretion. Santos-Santos v. Barr, 917 F.3d 486,
489 (6th Cir. 2019). The Board abuses its discretion if its decision lacks a rational explanation,
departs from established policies, or rests on an impermissible basis like invidious discrimination.
Lopez v. Garland, 990 F.3d 1000, 1002 (6th Cir. 2021).
As the Board held, Petitioner’s motion to reopen missed the deadline by a long shot. The
Board entered its final order of removal on February 26, 2021. Petitioner’s motion was therefore
-3- No. 24-3798, Perez-Rodriguez v. Bondi
due by May 27, 2021. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). But he didn’t
file it until September 11, 2023.
To get around the timely filing requirement, Petitioner argues that the Board abused its
discretion when it refused to toll the motion because the Pereira/Niz-Chavez precedent provided
an exceptional circumstance that justified equitable relief. For that to happen, Petitioner had to
establish that he diligently pursued his rights yet was impeded by extraordinary circumstances.
Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008) (articulating five factors generally used to
determine equitable tolling, including due diligence). But, as the Board not unreasonably
concluded, Petitioner was not diligent because Niz-Chavez was decided “about two months after
the Board’s final administrative decision” and “more than two years” before he filed the motion to
reopen. Petitioner contends that he in fact took timely action—he appealed the immigration
judge’s decision to the Board and filed a petition for review with this court. But, as the Board
noted, Petitioner’s “due diligence in pursuing a petition for review does not show due diligence in
filing a motion to reopen,” and Petitioner never explained “why he could not pursue both matters”
at the same time. This is a rational observation. See, e.g., Barry, 524 F.3d at 725 (holding that the
Board did not abuse its discretion in denying a motion to reopen where the petitioner failed to
inquire about her immigration status for over a year despite knowing that the Board had dismissed
her case, and, then waiting another three months after learning of the need to file a motion to
reopen); Tapia-Martinez v. Gonzales, 482 F.3d 417, 424 (6th Cir. 2007) (holding that the petitioner
failed to exercise due diligence because she waited fifteen months after discovering former
counsel’s deficient performance before filing a motion to reopen).
Petitioner now asserts that he needed the two years “to develop his new argument based on
the Supreme Court’s drastic change to existing law and the interpretations that followed that
-4- No. 24-3798, Perez-Rodriguez v. Bondi
decision.” Pet’r’s Br. at 9. But he did not advance this argument in his motion to reopen and
therefore did not exhaust it. 8 U.S.C. § 1252(d)(1); Santos-Zacaria v. Garland, 598 U.S. 411,
417–23 (2023); Mazariegos-Rodas v. Garland, 122 F.4th 655, 664 (6th Cir. 2024). Furthermore,
his brief before this court does not explain what efforts were made to develop the new argument
or cite (let alone discuss) the lower courts’ “interpretations that followed” Niz-Chavez. Pet’r Br.
at 9.2 Thus, even if the exhaustion problem was excused, Petitioner falls far short of establishing
that the Board’s refusal to set aside his motion to reopen was flawed. See INS v. Phinpathya, 464
U.S. 183, 188 n.6 (1984) (holding that “[c]ounsel’s unsupported assertions in respondent’s brief”
did not satisfy the conditions for the requested relief); Porter v. Bondi, 127 F.4th 993, 999 (6th
Cir. 2025) (undeveloped arguments are considered forfeited). Because Petitioner has not shown
diligence, he is not entitled to equitable tolling. See Barry, 524 F.3d at 726 (failing to show due
diligence is a standalone reason to deny equitable tolling); Reyes-Rodriguez v. Garland, No. 23-
3548, 2024 WL 1574673, at *2 (6th Cir. Apr. 11, 2024) (same).
III.
For the foregoing reasons, we deny the petition for review. Having concluded that the
petition for review lacks merit, we also deny the motion for a stay of removal.
2 In any event, Niz-Chavez “did not change the law” but “simply explained what [the stop-time rule] had meant all along.” Santizo-Soto v. Garland, No. 23-3468, 2024 WL 4512534, at *2 (Oct. 17, 2024).
-5-