Summary
The Seventh Circuit denied in part and dismissed in part Flavia Coatl-Chiquito’s petition for review of the Board of Immigration Appeals’ refusal to reopen her in absentia removal proceedings. The court held that Niz-Chavez did not equitably toll the deadline to reopen and that her second motion was barred by the numerical limitation applicable to removal proceedings. The court dismissed the challenge to the Board’s refusal to reopen sua sponte for lack of jurisdiction because Coatl-Chiquito identified no constitutional or legal error.
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Practice areas
Questions Presented
- Whether the Supreme Court's decision in Niz-Chavez v. Garland constituted an extraordinary circumstance warranting equitable tolling of the statutory deadline to reopen an in absentia removal order.
- Whether Coatl-Chiquito's second motion to reopen was exempt from the numerical bar because it asserted that she lacked notice of her initial hearing.
- Whether the Seventh Circuit had jurisdiction to review the Board's refusal to reopen the removal proceedings sua sponte.
Holdings
- Niz-Chavez v. Garland did not equitably toll the deadline to reopen Coatl-Chiquito's in absentia removal order because the asserted notice defect was identifiable when she was served in 2004 and she did not diligently pursue the claim.
- Coatl-Chiquito's second motion to reopen was numerically barred because her case arose from removal proceedings, not deportation proceedings, and the applicable regulation excused only the time limitation—not the one-motion numerical limitation—for a lack-of-notice motion.
- The Seventh Circuit lacked jurisdiction to review the Board's refusal to reopen sua sponte because Coatl-Chiquito identified no constitutional transgression or other legal error.
Key quotations
“Equitable tolling requires Coatl-Chiquito “to show that [she] has been diligent in the pursuit of [her] rights but that an extraordinary circumstance blocked [her] path.”” (6)
“Far from the significant evolution of Pereira, Niz-Chavez was “the next chapter in the same story.”” (8)
“The Board did not abuse its discretion in dismissing her second motion to reopen on this basis.” (11)
“Coatl-Chiquito identifies no “constitutional transgression[]” or “legal error[]” that would grant us jurisdiction to review the Board’s refusal to exercise its sua sponte authority.” (12)
Factual background
Coatl-Chiquito entered the United States without inspection in September 2004 and was personally served with a notice to appear that did not specify the date or time of her hearing. The Immigration Court later mailed notice of a December 2004 hearing to an Indiana address that she claimed she had never used as a residence, and she did not appear; she was ordered removed in absentia. Sixteen years later, after Pereira and Niz-Chavez, she moved to reopen, arguing that the defective notice supported cancellation of removal and that the deadline should be equitably tolled. She later filed a second motion asserting that she had not received adequate notice.
Procedural history
Coatl-Chiquito was ordered removed in absentia in 2004. In 2021, she filed a motion to reopen based on the Supreme Court's decisions in Pereira v. Sessions and Niz-Chavez v. Garland, seeking equitable tolling and, alternatively, sua sponte reopening. After the Immigration Judge denied relief, she appealed to the Board and filed a second motion asserting lack of notice. The Board affirmed, holding that equitable tolling was unwarranted, the second motion was numerically barred, and sua sponte reopening was not warranted. The Seventh Circuit denied the petition as to equitable tolling and the numerical bar and dismissed the sua sponte claim for lack of jurisdiction.