USCA11 Case: 19-13578 Date Filed: 01/21/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13578
____________________
DANILO RIGOBERTO ANDRADE-RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A089-094-246
____________________
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2 Opinion of the Court 19-13578
Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Danilo Rigoberto Andrade-Rodriguez petitions this Court
for review of the Board of Immigration Appeals’ order denying his
motion to reopen removal proceedings. After review, and with the
benefit of oral argument, we grant the petition, vacate the Board’s
decision, and remand for further proceedings.
I.
An immigration judge ordered Andrade-Rodriguez re-
moved in 2014. His motion to reopen, filed over four years after his
removal order became final, contended that he had become eligible
for cancellation of removal due to his continuous presence in the
United States. See 8 U.S.C. § 1229b(b)(1)(A). Acknowledging that
the motion was very late, see id. § 1229a(c)(7)(C)(i) (requiring that
a motion to reopen be filed within 90 days of the final order of re-
moval), he contended that the filing deadline was either equitably
tolled by extraordinary circumstances or, alternatively, that the
Board should sua sponte reopen his proceedings due to a funda-
mental change in law.
The allegedly extraordinary circumstance was the Supreme
Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Nor-
mally, an alien ceases to accrue time toward eligibility for cancella-
tion when he is served with a notice to appear. 8 U.S.C. §
1229b(d)(1). But Pereira held that a notice to appear fails to trigger
this so-called “stop-time” rule if it does not contain either the time
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19-13578 Opinion of the Court 3
or place of the removal proceedings against the alien. 138 S. Ct. at
2114; see 8 U.S.C. § 1229(a)(1)(G)(i) (containing the place-and-time
requirement). Andrade-Rodriguez’s notice to appear indicated that
the time and date of his removal proceedings would “be set” later.
Thus, he moved for reopening, contending that his time toward
eligibility for cancellation was still accruing.
The Board appeared to deny the motion based on its under-
standing of Pereira at the time. It reasoned that any defect in the
notice to appear was cured by a later notice of hearing that con-
tained the time and place of the proceedings. Concerning the time-
liness of Andrade-Rodriguez’s motion, the Board was “not per-
suaded” that equitable-tolling was warranted. And the Board ex-
plained that Andrade-Rodriguez was not eligible for cancellation of
removal under Pereira, “[i]n any event.”
However, after the Board’s decision, and while this appeal
was pending, the Supreme Court decided Niz-Chavez v. Garland,
141 S. Ct. 1474 (2021). That decision clarified that a defective notice
to appear is not cured by a later mailing containing information
omitted from the initial notice. Id. at 1479. We ordered supple-
mental briefing to address this new precedent, and the government
conceded the error in the Board’s conclusion. But it maintained
that the change of law in Pereira and Niz-Chavez was not an ex-
traordinary circumstance warranting equitable tolling.
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4 Opinion of the Court 19-13578
II.
We review denials of motions to reopen for an abuse of dis-
cretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009). The Board abuses its discretion when it misapplies the law
in reaching its decision. Ferreira v. U.S. Att’y Gen., 714 F.3d 1240,
1243 (11th Cir. 2013). Legal conclusions underlying the Board’s de-
cision are reviewed de novo, as are claims that the Board did not
provide reasoned consideration for its decision. Li v. U.S. Att’y
Gen., 488 F.3d 1371, 1374 (11th Cir. 2007); Bing Quan Lin v. U.S.
Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018). However, we lack
jurisdiction to review the Board’s decision to deny sua sponte reo-
pening. Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1286 (11th Cir.
2016).
III.
In light of Niz-Chavez, it is undisputed that the Board erred
in its understanding of Pereira. Our only inquiry is whether, as the
government suggests, we may deny the petition because the Board
denied Andrade-Rodriguez’s request for equitable tolling on other,
more meritorious grounds. For his part, Andrade-Rodriguez con-
tends that, to the extent it relied on other reasons to deny his mo-
tion, the Board failed to give reasoned consideration to his request
for equitable tolling. We agree with Andrade-Rodriguez.
We have held that the Board must demonstrate that it “con-
sidered the issues raised and announced its decision in terms suffi-
cient to enable a reviewing court to perceive that it has heard and
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19-13578 Opinion of the Court 5
thought and not merely reacted.” Jeune v. U.S. Att’y Gen., 810 F.3d
792, 803 (11th Cir. 2016) (cleaned up).
Here, apart from its now-erroneous view of Pereira, it is not
clear why the Board denied equitable tolling. The Board said only
that it was “not persuaded that equitable tolling [wa]s warranted”
for Andrade-Rodriguez’s motion. In its initial brief, the govern-
ment suggested that the Board denied the motion based exclusively
on its view of Pereira: “the best reading of the Board’s decision is
that it was declining to apply equitable tolling because Pereira did
not constitute a change in the law as he argued—he is still ineligible
for cancellation despite that decision.” If so, we have explained why
that reasoning was superseded by Niz-Chavez. It may also be, as
the government now suggests, that the Board was persuaded that
other reasons also justified denying equitable tolling. But the Board
did not say as much. Therefore, we cannot say the Board gave rea-
soned consideration sufficient for our review. Accordingly, we re-
mand for the Board to consider whether equitable tolling is war-
ranted.
IV.
We GRANT the petition for review, VACATE the order of
the Board, and REMAND this matter for further proceedings.