In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1179
JESUS MIGUEL ARREOLA-OCHOA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A206-305-102.
____________________
ARGUED JANUARY 19, 2022 — DECIDED MAY 17, 2022
____________________
Before WOOD, HAMILTON, and JACKSON-AKIWUMI, Circuit
Judges.
WOOD, Circuit Judge. Jesus Arreola-Ochoa is seeking can-
cellation of his removal from the United States. He asserts that
he is entitled to this relief based on the hardship that would
result to his family should he be forced to return to Mexico.
First an immigration judge and then the Board of Immigration
Appeals denied his petition, and so he has brought his case to
2 No. 21-1179
this court. Finding nothing in the Board’s action that would
warrant the relief he seeks, we deny the petition for review.
I
A
Arreola has been living in the United States without au-
thorization to do so for more than 25 years. He illegally en-
tered the country in March 1996, and he has been here ever
since. He and his partner Maria have two children, Elizabeth
and Allison. Both Elizabeth and Allison are U.S. citizens by
birth, and they live with their parents. In addition, Maria has
two daughters from a prior relationship, Areli and Saira, both
of whom also live with her and Arreola. Finally, the house-
hold includes Saira’s two children and Elizabeth’s one child.
By all accounts, this is a close-knit family. Arreola, who
works in the construction industry, is the primary breadwin-
ner. Testimony in the record from Elizabeth described the
heartbreak that Arreola’s removal would cause. More con-
cretely, Arreola would lose the ability to care for his family in
critical ways. Health care is one: Maria suffers from severe mi-
graines and some hearing problems, and Elizabeth stated that
she has a recurring lung infection. Housing is another: Arre-
ola has been in a rent-to-buy program for the family home,
but his removal would as a practical matter result in their
eviction. And nothing but danger awaits him in Mexico. After
a quarter century, he no longer has ties in the country of his
birth. He lacks a home there, and he fears being kidnapped
based on the false perception that all people coming from the
United States have money.
No. 21-1179 3
B
The Department of Homeland Security’s Immigration and
Customs Enforcement branch learned about Arreola after he
was convicted for driving while intoxicated on July 29, 2015.
His initial Notice to Appear was dated August 3, 2015, and
was filed with the immigration court on August 14, 2015. It
charged that Arreola was inadmissible under 8 U.S.C.
§ 1182(a)(6)(A)(i), which applies to “[a]n alien present in the
United States without being admitted or paroled.” Like many
notices issued during that era, it provided a physical location
but said only that the date and time of the removal proceed-
ings were “[t]o be set.” Also on August 14, the Immigration
Judge (IJ) issued a notice of hearing to Arreola; that notice set
an initial hearing for August 24, 2015, and specified where it
was to occur. Arreola was released on bond on August 17,
2015.
Between 2015 and 2017, DHS notified Arreola several
times of the date for his master hearing of several changes in
that date. For instance, on August 25, 2015, he received a no-
tice setting the hearing for April 26, 2016. That date seems to
have slipped, because on June 5, 2017, he received a notice
saying that the hearing would take place on August 2, 2017.
The latter proved to be a firm date. That was his first appear-
ance before an IJ. At that time, he admitted the key factual al-
legations in his Notice and conceded removability. He desig-
nated Mexico as the proper destination, should removal be
necessary. Finally, he filed an application for cancellation of
removal. He said nothing about the omission of the date and
time from his initial Notice.
The hearing on the merits of the cancellation application
was scheduled for July 23, 2018. On July 20, just three days
4 No. 21-1179
before the hearing, Arreola filed a motion to terminate the re-
moval proceedings on the ground that his initial Notice to Ap-
pear did not provide a date and time for his appearance. His
motion was prompted by the fact that about a month earlier,
the Supreme Court had handed down its decision in Pereira v.
Sessions, 138 S. Ct. 2105 (2018), which held that a Notice to Ap-
pear that lacks time or place information does not suffice to
trigger the statutory stop-time rule, under which a nonciti-
zen’s continuous presence in the United States is measured
for purposes of cancellation of removal. See 8 U.S.C.
§ 1229b(d)(1). The IJ gave DHS an opportunity to respond to
the motion to terminate at the merits hearing. DHS filed a
written response shortly thereafter; it argued that Pereira did
not apply to issues other than the stop-time rule and that the
later document providing the time and place of the hearing
cured any shortcomings in the original Notice.
The IJ held the July 23 hearing as scheduled. The judge
then closed the record and set October 1, 2018, as the date for
a hearing at which it would rule on Arreola’s two pending
motions: the one to terminate and the one for cancellation of
removal. At the October 1 hearing, the IJ denied both motions.
With respect to the Pereira issue, the judge followed the
Board’s decision in Matter of Bermudez-Cota, 27 I&N Dec. 441
(BIA 2018), which held that the agency’s later provision of the
missing information cured the violation of section 1229(a).
Under Bermudez-Cota, Arreola’s motion had to be denied.
With respect to cancellation, the IJ held that Arreola had es-
tablished the requisite period of physical presence and good
moral character for eligibility, but that he had failed to show
that his removal “would result in exceptional and extremely
unusual hardship to [his] … child, who is a citizen of the
United States … .” The IJ explained this conclusion as follows:
No. 21-1179 5
Here, the record indicates that both of the respond-
ent’s daughters are in good health. Although he has
submitted evidence indicating that their mother suffers
from hearing loss and that her (Maria’s) daughter has
been treated for migraines, neither of them are within
the protected class for hardship purposes. Neither
daughter appears to have any special educational
needs and there is also no evidence of record reflecting
the emotional or psychological impact of the respond-
ent’s departure upon them.
Arreola appealed this decision to the Board. By the time
the Board resolved the appeal, Elizabeth was too old to serve
as a qualifying relative, because she had reached the age of 21.
See 8 U.S.C. § 1101(b)(1). Allison still met the statutory defini-
tion, but the Board stated that it was satisfied with the IJ’s
finding that Allison “is in good health, and has no special ed-
ucational needs.” The Board acknowledged that “[Arreola’s]
removal will likely result in educational, emotional, and fi-
nancial hardship to his qualifying relative.” But, it added,
“[t]he evidence … does not establish that the child would suf-
fer hardship that is beyond that which ordinarily would be
expected as a result of a relative’s removal.” It therefore af-
firmed the IJ’s order of removal. Arreola then filed this timely
petition for review.
II
A
Arreola begins by urging us to revisit our holding in Ortiz-
Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), in which we held
that “[t]he requirement that a Notice [to Appear] include,
within its four corners, the time, date, and place of the
6 No. 21-1179
removal proceeding is not ‘jurisdictional’ in nature. It is in-
stead the agency’s version of a claim-processing rule, viola-
tions of which can be forfeited if an objection is not raised in
a timely manner.” Id. at 958. In so holding, we took note of the
fact that 8 U.S.C. § 1229(a)(1)(G)(i), which establishes the time
and place requirements for Notices to Appear, does not use
jurisdictional terminology. As a practical matter, it disposes of
most of his jurisdictional argument.
Arreola is far from the first person to ask us to revisit this
holding. See, e.g., De La Rosa v. Garland, 2 F.4th 685, 687 (7th
Cir. 2021); Mejia-Padilla v. Garland, 2 F.4th 1026, 1032–33 (7th
Cir. 2021). Moreover, he has not offered a compelling reason
for us to do so. Nothing the Supreme Court said in Niz-Chavez
v. Garland, 141 S. Ct. 1474 (2021), undermines our position.
That case concerned the distinct question whether a flawed
Notice to Appear could be saved by a later document that fills
in the time-and-place blanks; the Supreme Court said no. The
Court had no occasion to address the question whether a No-
tice that omits time and place is insufficient to vest the immi-
gration court with authority over the case, or if those omis-
sions have a lesser consequence.
Our sister circuits agree with us that the time-and-place
rules are not jurisdictional. As our colleagues in the Fifth Cir-
cuit said in Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019),
there has been an “overwhelming chorus” from the circuits
rejecting (on varying rationales) the proposition that Pereira
requires the dismissal of any case that was initiated with a
Notice to Appear that lacked time-and-place information. Id.
at 689 (citing cases). Pierre-Paul expressly agreed with our
characterization of the governing regulation, 8 C.F.R.
§ 1003.14, as a claim-processing rule. Id. at 691–93.
No. 21-1179 7
Attempting to avoid this wall of adverse authority, Arre-
ola argues that even if section 1229(a)(1)(G)(i) is not jurisdic-
tional, his case nevertheless must be dismissed because
8 U.S.C. § 1229a(a) is jurisdictional, and that is the statute that
provides for removal proceedings. Section 1229a(a)(3) states
that “a proceeding under this section shall be the sole and ex-
clusive procedure for determining whether an alien may be
admitted … or, if the alien has been so admitted, removed.”
Id. Arreola reasons that a noncitizen cannot be in removal pro-
ceedings unless the person has received a valid Notice to Ap-
pear. But this is essentially the same argument we rejected in
Ortiz-Santiago. Everyone agrees that a Notice to Appear is the
initiating document for removal proceedings. The only ques-
tion is whether a particular flaw in that document can be ad-
dressed only by dismissing the proceeding altogether, no
matter when the noncitizen raises the point, and no matter
how prejudicial (or harmless) it is, or if timeliness and preju-
dice matter. Ortiz-Santiago says that timeliness and prejudice
are central to the time-and-place rule.
The proper inquiry in an immigration case does not turn
on the mere discovery of an omission of information that the
statute says must be included in a Notice to Appear. See
8 U.S.C. § 1229(a)(1). Instead, the noncitizen must still satisfy
the requirements of either of two paths to relief. Under the
first path, we ask whether the noncitizen raised a timely
objection to the Notice. If so, then the proceeding must be
dismissed for failure to comply with a mandatory claims-
processing rule. The second path, which comes into play if the
objection was untimely, is a bit more complex. The noncitizen
must provide an excuse for the delay as well as show
prejudice from the lack of prompt information about time,
place, or both. See Ortiz-Santiago, 924 F.3d at 965; De La Rosa,
8 No. 21-1179
2 F.4th at 688. If the noncitizen can meet that burden, then
again the proceeding must be dismissed. After either type of
dismissal, DHS remains free to issue a proper Notice and
begin a new proceeding. Given the holding in Pereira, that
may make a difference for some noncitizens, because the
period for continuous residence will have continued to
accrue.
B
Anticipating that we were likely to adhere to Ortiz-
Santiago, Arreola takes the back-up position that he objected
to the omission of the time-related information in a timely
fashion and is therefore entitled to relief. This presents us
with a difficult question of line-drawing. No one would doubt
that an objection made within a week of receiving the
defective Notice to Appear is made in a timely way, just as no
one would doubt that an objection that showed up for the first
time in the court of appeals is too late. The outer limits, we
think, must fall between the earliest day possible after receipt
of the Notice, on the one end, and the conclusion of
proceedings before the immigration court, on the other. Our
prior cases confirm that objections raised after the termination
of immigration-court proceedings are too late, see, e.g., Meraz-
Saucedo v. Rosen, 986 F.3d 676, 683 (7th Cir. 2021), though we
have not defined a bright-line moment during proceedings at
which a claim moves from timely to untimely.
The immigration laws provide little guidance that would
help us to choose such a fixed point. Classically, in that situa-
tion courts say that the act at issue (here, filing an objection to
a defective Notice) must be done within a reasonable time. See,
e.g., Nunez v. Dautel, 86 U.S. 560, 562 (1873) (deciding what
would be a reasonable time for making a payment after a
No. 21-1179 9
promise to pay); Louisville Mfg. Co. v. Welch, 51 U.S. 461, 474
(1850) (notice given under a letter of credit regarding the
amount a guarantor must cover should be communicated
within a reasonable time, and “[w]hat is a reasonable time
must depend upon the circumstances of each particular
case”); see also United States v. Irvine, 511 U.S. 224, 234 (1994)
(tax-free disclaimer must be made within a reasonable time of
knowledge of a transfer, bearing in mind that the gift tax was
intended “to curb avoidance of the estate tax”). That is essen-
tially a factual question, though as Irvine noted, one that is in-
formed by the laws and interests at issue in the case.
Like these earlier examples, the statute now before us calls
for a holistic and circumstance-specific analysis of timeliness.
It is true that the Supreme Court sometimes creates presump-
tive time deadlines. See, e.g., County of Riverside v. McLaughlin,
500 U.S. 44, 56 (1991) (finding that a judicial determination of
probable cause that occurs within 48 hours of arrest is speedy
enough). But that strikes us as inappropriate for a lower court
to do in the present setting. We can find nothing in the statute
inviting us to announce that an objection is timely if it is made
within but no later than a randomly chosen number of days
(say, 90). The best we can do is to suggest, by way of example
only, the types of considerations that often help in the deter-
mination of timeliness. These are not mandatory “factors”
that must doggedly be followed, or even a checklist; they re-
flect only facts that have been useful in assessing the timeli-
ness of claims in similar settings:
• how much time passed, in absolute terms, be-
tween the receipt of the Notice and the raising
of the objection;
10 No. 21-1179
• did the immigration court set a schedule for fil-
ing objections, and did the objection comply
with that schedule;
• how much of the merits had been discussed or
determined prior to the objection?
Some of these considerations are also useful in judging
whether the untimeliness of an objection should be excused,
if the noncitizen were to pursue this path to relief. Factors rel-
evant to excuse and prejudice might include the following:
• if the recipient does not speak English, did she
object promptly after receiving adequate trans-
lation services and notice;
• did the person have legal counsel at the outset,
and if she obtained counsel only later, did coun-
sel object promptly after entering the case;
• did the noncitizen file any prior objections but
omit this objection?
We stress again that these are not an exhaustive list of consid-
erations bearing on the question of timeliness, excuse, and
prejudice. Other considerations may carry weight in future
cases.
A number of these points are adverse to Arreola. For ex-
ample, he did not respond promptly to his Notice to Appear.
By August 14, 2015, the Notice had been filed with the immi-
gration court; he had his master hearing on August 2, 2017;
and he raised this objection only on July 20, 2018, almost three
years after the proceedings were initiated and just three days
before his merits hearing was scheduled to start. That is a long
time by anyone’s measure. Even so, it might be justifiable if
No. 21-1179 11
the objection were made at or reasonably soon after the mas-
ter hearing, especially if the master hearing occurred shortly
after the original Notice. That was not the case here, however;
Arreola’s master hearing took place a full year before he
raised this objection. This consideration weighs in favor of
finding his objection untimely.
On the other hand, some points favor him. Arreola did not
disregard any filing schedule. So too, the IJ had not yet
discussed—much less decided—the merits as of the time of
his objection. But Arreola’s objection came very close to the
last minute—he raised it on the Friday before the Monday
merits hearing. This undercuts what would otherwise be a
strong reason to find in his favor. Given the last-minute
nature of his objection, along with the facts that it took him
three years to raise the claim and that he had access to counsel
and translation services, we conclude that he did not make a
timely objection.
That puts him on the second path we identified earlier, un-
der which he can prevail only if his lateness is excusable and
he can show prejudice flowing from the omission of the time
and place information in his Notice. We conclude that he has
not met that burden. Arreola argues that he did not realize
that the flawed-notice argument was available until Pereira
was decided. But we previously have explained why Pereira
was not so unexpected and unpredictable that its emergence
alone excuses a late objection. See Vyloha v. Barr, 929 F.3d 812,
817 (7th Cir. 2019) (“Vyloha could have argued that his notice
was statutorily deficient well before the Pereira decision.”);
Ortiz-Santiago, 924 F.3d at 964 (noting that courts had been
questioning the Board’s casual treatment of the time-and-
place rules before Pereira). Not having access to counsel or
12 No. 21-1179
translation services, or being restricted in some other way,
could excuse a late objection, but Arreola makes no such ar-
gument; in addition, the record indicates that Arreola was
represented by counsel and had access to translation services
at the master hearing. The only consideration counseling in
favor of excusing Arreola’s late objection is the fact that he
previously had not filed other objections. But this fact alone is
not enough to outweigh the other considerations.
Furthermore, even if Arreola’s untimeliness were excused,
one cannot find on this record—indeed, Arreola does not even
allege—prejudice stemming from the defective Notice. He
was aware of both the times and places of his hearings and
actively participated in them. There is no evidence that he
went to the wrong place, had the wrong time, missed any
hearings, had difficulty presenting witnesses or some other
evidence, or encountered any other problem that the omission
of this information in the Notice might have caused. Prejudice
in this situation does not have to be much (i.e., a petitioner
need not go so far as to show that the IJ’s ultimate decision
would have been different absent the defect), but it must be
something. We therefore find that the error in the Notice does
not justify setting aside these proceedings and requiring DHS
to start over (should it choose to do so).
III
On the merits, Arreola contends only that the Board erred
in its determination that his removal would not result in “ex-
ceptional and extremely unusual hardship” to his minor U.S.-
citizen daughter Allison. See 8 U.S.C. § 1229b(b)(1). It was his
burden to show some kind of hardship that is “substantially
different from, or beyond, that which would be normally ex-
pected from the deportation of an alien with close family
No. 21-1179 13
members in the United States.” Martinez-Baez v. Wilkinson, 986
F.3d 966, 975 (7th Cir. 2021). We have jurisdiction to consider
legal issues in connection with this determination. See
8 U.S.C. § 1252(a)(2)(D). In addition, the Supreme Court has
held that it “can reasonably interpret the statutory term ‘ques-
tions of law’ to encompass the application of law to undis-
puted facts.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1070
(2020). Here, the facts that Arreola has presented to show the
hardship that Allison will suffer are not disputed. The only
question is whether the Board’s decision that those facts did
not amount to “hardship” under the statute was a reasonable
application of the hardship standard.
We must defer to the Board’s handling of this type of
mixed question of law and fact. We readily accept that Arreola
and his family will be devastated if he is removed—and that
is true whether Arreola must go back to Mexico by himself or
whether he takes his family with him. But that consequence is
regrettably common in these cases. The Board was entitled to
find, as it did, that there is nothing “exceptional” and “ex-
treme” about the impact his removal will have on Allison, the
qualifying U.S.-citizen family member. Arreola pleads that his
family is especially close, but he does not point to anything
more concrete as a hardship. It would require a change in the
immigration laws—one that lies outside our competence—to
find that the kind of personal hardship on which Arreola is
relying could serve to support cancellation of removal.
* * *
We DENY the petition for review.