Nelida Araujo Hernandez v. Pamela Bondi

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 28, 2025
• Docket: 24-3470
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0172n.06

Case Nos. 24-3467/3468/3469/3470/3472/3474

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 28, 2025 ) KELLY L. STEPHENS, Clerk JOSE ARAUJO HERNANDEZ, et al., ) Petitioners, ) ) ON PETITION FOR REVIEW v. ) FROM THE BOARD OF ) IMMIGRATION APPEALS PAMELA BONDI, Attorney General, ) Respondent. ) OPINION ) )

Before: SUTTON, Chief Judge; BATCHELDER and RITZ, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. The petitioners seek review of the BIA’s

denials of their motions to reopen their removal proceedings. Because the motions were untimely

and the petitioners provide no reason to excuse that untimeliness, we DENY the petitions.

The petitioners are Margarita Hernandez Sanchez and her five children, all of whom are

natives and citizens of Mexico who entered the United States illegally in July 2014. They sought

withholding of removal, asylum, and relief under the Convention Against Torture (CAT). In June

2016, an immigration judge (IJ) denied their petitions and ordered them removed to Mexico. In

June 2017, the Board of Immigration Appeals (BIA) dismissed their appeal. Almost five years

later, in April 2022, they moved to reopen the cases, seeking to reverse the removal orders because

the initial Notices to Appear (NTAs) did not contain the required time and place information.

The BIA denied their motions, explaining that their jurisdictional argument was barred by

precedent, see Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018); that their claim-

processing-rule argument was waived or forfeited due to their delay in raising it; and that the entire

motions were untimely, as they were filed long past 90 days after the BIA’s June 2017 decision, Nos. 24-3467/3468/3469/3470/3472/3474, Hernandez, et al. v. Bondi

see 8 U.S.C. § 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2), and they could not justify equitable

tolling because they had neither acted diligently nor faced any extraordinary circumstances.

On an appeal from the denial of a motion to reopen, we review the BIA’s decision for an

abuse of discretion. Santos-Santos v. Barr, 917 F.3d 486, 489 (6th Cir. 2019). “The B[IA] abuses

its discretion only when its determination was made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis such as invidious

discrimination against a particular race or group.” Id. (quotation marks and citation omitted).

In this appeal, the petitioners concede that their jurisdictional argument is barred by Sixth

Circuit precedent, but argue that they timely asserted their claim-processing-rule argument, i.e.,

that the order of removal was invalid because the initial NTAs did not contain the required time

and place information. But the petitioners did not raise this argument to the IJ or the BIA in the

original proceedings. They raised it for the first time in their motion to reopen. A petitioner “who

did not challenge a noncompliant notice to appear before the Immigration Judge or the Board but

rather raised [that] objection for the first time in a motion to reopen [has] waited too long and [has]

forfeited that objection.” Matter of Fernandes, 28 I. & N. Dec. 605, 610 (BIA 2022); accord

Palma-Campos v. Bondi, No. 24-3490, 2025 WL 665849, at *1 (6th Cir. Feb. 20, 2025); Reyes-

Rodriguez v. Garland, No. 23-3548, 2024 WL 1574673, at *4 (6th Cir. Apr. 11, 2024).

The petitioners contend that this forfeiture (or untimeliness) is excusable because the

claim-processing-rule violation was not available to them until Niz-Chavez v. Garland, 593 U.S.

155 (2021), changed the law (i.e., created this claim-processing-rule violation). This contention is

based on a theory from the Seventh Circuit, which we have as of yet declined to adopt. See

Espinoza-Anguiano v. McHenry, No. 24-3219, 2025 WL 405108, at *2 (6th Cir. Feb. 5, 2025);

Bains v. Garland, No. 23-3208, 2024 WL 3950812, at *5 (6th Cir. Aug. 27, 2024).

2 Nos. 24-3467/3468/3469/3470/3472/3474, Hernandez, et al. v. Bondi

But even if Niz-Chavez could excuse their forfeiture, their motions to reopen were still

untimely. They had to file their motions to reopen within 90 days of the final order of removal.

8 U.S.C. § 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2). That final order was in June 2017 and

the petitioners moved to reopen in April 2022. The petitioners argue that Niz-Chavez constitutes

an “extraordinary circumstance” that warrants equitable tolling. “[E]quitable tolling is the doctrine

that the statute of limitations will not bar a claim if the [petitioner], despite diligent efforts, did not

discover the injury until after the limitations period had expired.” Mezo v. Holder, 615 F.3d 616,

620 (6th Cir. 2010) (quotation marks, editorial marks, and citation omitted). “Due diligence

requires [the petitioner] to prove that the delay in filing the motion to reopen was due to an

exceptional circumstance beyond his control.” Id. at 621 (quotation marks and citation omitted).

Even assuming that Niz-Chavez was an exceptional circumstance arising in April 2021, the

petitioners did not move to reopen for another 12 months. The BIA concluded from this delay that

the petitioners had not exercised due diligence, and therefore, were not entitled to equitable tolling.

This was not an abuse of discretion. See Reyes-Rodriguez, 2024 WL 1574673, at *2-3.

For the foregoing reasons, we DENY the petitions for review.