In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2841
L EONIDA M. S ARMIENTO and
R OMEO L. S ARMIENTO ,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
Nos. A097 867 848 & A097 867 849
A RGUED A PRIL 25, 2012—D ECIDED M AY 21, 2012
Before P OSNER, S YKES and T INDER, Circuit Judges.
T INDER, Circuit Judge. An alien subject to an order
of removal has 90 days from the entry of a final admin-
istrative order of removal to seek to reopen the removal
proceedings. The question presented in this case is
whether the filing of a motion to reconsider an order of
removal tolls that 90-day period until a ruling is made
2 No. 11-2841
on a motion to reconsider. An Immigration Judge
ordered removal for Leonida and Romeo Sarmiento
after refusing to adjust their status to permanent
residents, and the Board of Immigration Appeals dis-
missed their appeal. The Sarmientos moved the Board
for reconsideration, which it denied. Within 90 days of
that denial, but several months after the Board’s initial
dismissal, the Sarmientos moved to reopen. The Board
denied the motion as untimely, concluding that a
motion to reopen must be filed within 90 days of the
dismissal of the Board appeal, regardless of the
pendency of a motion to reconsider the removal order.
Because the Board’s interpretation of the applicable
statute and regulation is reasonable, the petition for
review presented to this court is denied.
I. Background
The Sarmientos, citizens of the Philippines, entered
the United States under nonimmigrant visas, Leonida in
2003 and Romeo in 2004. About a month before Leonida’s
visa was set to expire, her employer petitioned on her
behalf for alien-worker status, and she applied for ad-
justment of status. Leonida is a nurse and qualified as
a skilled worker or professional under 8 U.S.C.
§ 1153(b)(3)(A)(i) or (ii). At the same time, Romeo
applied for adjustment of status as Leonida’s spouse.
The petition for worker status was granted in late 2004.
Ten months later, immigration officials denied the
Sarmientos’ applications for adjustment of status be-
cause Leonida had not submitted evidence of her certif-
No. 11-2841 3
ication to practice nursing in the United States, as
required by 8 U.S.C. § 1182(a)(5)(C) (the results of a
necessary English exam were pending). The Sarmientos
reapplied for adjustment of status a few months later,
but their applications were again denied, this time
because Leonida filed her second application for adjust-
ment of status after her lawful status had lapsed for
over 180 days, rendering her ineligible for adjustment
of status. See id. § 1255(c)(7), (k). The Department of
Homeland Security began removal proceedings in
late 2007.
At a removal hearing before the IJ, the Sarmientos
renewed their applications to adjust their status. The IJ
denied the Sarmientos’ applications and ordered them
removed. He explained that he could not renew Leonida’s
first application because it had not been properly filed
in the first instance since it did not include evidence
of her nursing certification. And, according to the IJ,
Leonida was ineligible for adjustment of status under
her second application because she filed it after living
in the United States unlawfully for more than 180 days.
The Sarmientos appealed to the Board, arguing that
their first application had been properly filed and that
their unlawful presence in the United States for over
180 days was a result of an error by their former attor-
ney. In June 2010, the Board dismissed the appeal, con-
cluding that the Sarmientos had not shown that
their counsel was ineffective and that the IJ was correct
that they were not eligible to adjust status because
they had been in the United States unlawfully for more
than 180 days.
4 No. 11-2841
A month later, the Sarmientos moved for reconsidera-
tion, rehashing the arguments they had made in their
initial submission to the Board. The Board denied the
motion in December 2010, explaining that the motion
failed to point out any errors of fact or law in the
original dismissal. Nine months after the Board
dismissed their original appeal but within 90 days of
the Board’s denial of their motion to reconsider, the
Sarmientos moved to reopen in March 2011. They con-
tended, with supporting evidence, that they were
newly eligible for adjustment of status because their
daughter, a United States citizen who was now 21, had
petitioned to adjust status on their behalf, and those
petitions had been approved.
The Board determined that the motion was untimely
and denied it. The Board explained that the motion was
due within 90 days of its “final administrative order
of removal,” which it said was the decision issued in
June 2010 dismissing the Sarmientos’ appeal, not the
later order in December denying their motion to recon-
sider. The Sarmientos then petitioned for review.
II. Analysis
The Immigration and Nationality Act provides that
a “motion to reopen shall be filed within 90 days of the
date of entry of a final administrative order of removal.”
8 U.S.C. § 1229a(c)(7)(C)(i) (emphasis added). The
Sarmientos argue that the Board’s denial of their motion
to reconsider was a final order of removal and that
they may move to reopen the Board’s dismissal within
No. 11-2841 5
90 days of any final order of removal against them.
They conclude, therefore, that the 90-day deadline for
moving to reopen runs from the date that the court
denied their motion to reconsider in December, making
their March motion to reopen timely. The government
responds that the Sarmientos’ motion was untimely
because they had to move to reopen within 90 days of
the specific order they were challenging—and that order,
according to the government, was the Board’s initial
dismissal of their appeal.
The INA’s time limit for moving to reopen is ambigu-
ous. First, § 1229a(c)(7)(C)(i) does not state whether a
motion to reopen may be filed within 90 days of any final
order of removal, or must be filed within 90 days of the
specific final order of removal that a party seeks to chal-
lenge. Second, the INA’s definition of when an order of
removal becomes “final” has been interpreted in two ways.
The INA itself provides that an order is final when either
(1) the Board affirms the IJ’s removal order, or (2) the time
to appeal the IJ’s removal order to the Board expires. 8
U.S.C. § 1101(a)(47)(B). (Section 1101(a)(47)(B) actually
refers to an “order of deportation,” but that term is synony-
mous with “order of removal.” Viracacha v. Mukasey, 518
F.3d 511, 513-14 (7th Cir. 2008).) Some decisions read this
provision to limit “final” orders of removal to these
two instances, see Ocampo v. Holder, 629 F.3d 923, 927
(9th Cir. 2010), but others understand it to implicitly
include orders disposing of motions to reopen and recon-
sider as “final” orders of removal, see, e.g., Bronisz v.
Ashcroft, 378 F.3d 632, 636-37 (7th Cir. 2004); Dave v.
Ashcroft, 363 F.3d 649, 652 (7th Cir. 2004); Chow v. INS,
6 No. 11-2841
113 F.3d 659, 663-64 (7th Cir. 1997), abrogated on other
grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998);
Cruz v. Attorney Gen., 452 F.3d 240, 246 (3d Cir. 2006);
Sarmadi v. INS, 121 F.3d 1319, 1321-22 (9th Cir. 1997).
When a statute is ambiguous, courts must defer to
an agency’s reasonable interpretation of the statute.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-44 (1984); Escobar v. Holder, 657
F.3d 537, 542 (7th Cir. 2011); Dawoud v. Gonzales, 424
F.3d 608, 612 (7th Cir. 2005). Here the Board’s regula-
tion corresponding to § 1229a(c)(7)(C)(i) explains that
a motion to reopen “must be filed no later than 90
days after the date on which the final administrative
decision was rendered in the proceeding sought to be re-
opened.” 8 C.F.R. § 1003.2(c)(2) (emphasis added). The
Board was even more specific in In re Khan, 2007 BIA
LEXIS 60 (BIA June 15, 2007). There, on facts nearly
identical to this case, it held that the 90 days to file a
motion to reopen a removal order runs from the date
the Board dismissed the appeal of the IJ’s removal
order, and not the date that the Board ruled on a motion
to reconsider. Id. at *1 (citing Matter of L-V-K-, 22 I. & N.
Dec. 976 (BIA 1999)). In re Khan is not a precedential
Board decision, but it expressly relies on relevant
Board precedent in reaching its decision and therefore
is entitled to Chevron deference. See Escobar, 657 F.3d at
542; Arobelidze v. Holder, 653 F.3d 513, 519 (7th Cir.
2011); Rohit v. Holder, 670 F.3d 1085, 1087-88 (9th Cir.
2012); Quinchia v. U.S. Attorney Gen., 552 F.3d 1255, 1258
(11th Cir. 2008).
No. 11-2841 7
The Board’s interpretation of the statute, requiring
parties to move to reopen within 90 days of the Board’s
initial dismissal, is reasonable. To conclude otherwise
would allow aliens to receive extra time to move to
reopen their cases by the simple expedient of filing frivo-
lous motions to reconsider. Moreover, rejecting the
Board’s interpretation would create a circuit split with
the Fifth and Ninth Circuits. See Vega v. Holder, 611 F.3d
1168, 1170-71 (9th Cir.), petition for cert. filed, (U.S. Dec. 13,
2010) (No. 10-8010); William v. INS, 217 F.3d 340, 342-43
(5th Cir. 2000). Those circuits decided that the Board
reasonably interpreted the applicable regulation, 8 C.F.R.
§ 1003.2(c)(2) (formerly § 3.2(c)(2)), to require a motion
to reopen to be filed within 90 days of the order it is
challenging, and then reasoned that a motion to reopen
can only target the Board’s original dismissal. We agree
with this analysis.
The regulation states that the motion to reopen must
be filed within 90 days of the specific proceeding being
challenged. A motion to reopen cannot challenge an
order disposing of a motion to reconsider because the
motions have conflicting evidentiary requirements: A
party must submit new evidence for a motion to reopen,
see 8 U.S.C. § 1229a(c)(7); Munongo v. Gonzales, 479 F.3d
531, 534 (7th Cir. 2007), whereas a party may not
submit new evidence for a motion to reconsider, see 8
U.S.C. § 1229a(c)(6); Munongo, 479 F.3d at 534-35. There-
fore, the Sarmientos’ motion to reopen (which included
new evidence) can be seen only as a challenge to the
underlying removal order, not the ruling on the motion
to reconsider. See Vega, 611 F.3d at 1170-71 (stating
8 No. 11-2841
that “offering new evidence through a motion to
reopen the reconsideration proceeding would be inap-
propriate. The very purpose of a motion to reopen is
to offer new evidence. The new evidence, therefore,
can only pertain to the initial merits determination that
the alien is removable.” (citation omitted)); William,
217 F.3d at 342 (“[B]ecause an alien who seeks to
introduce new evidence can reopen only a proceeding
that once was open for the receipt of evidence, the
motion to reopen must look back to an evidentiary pro-
ceeding rather than to the denial of reconsideration.”)
Because the Sarmientos’ moved to reopen more than
90 days after the Board dismissed their appeal of the
IJ’s removal order, their motion is untimely.
This interpretation is consistent with how courts treat
deadlines to petition for judicial review of Board deci-
sions. The Supreme Court has held that a removal order
is independent of a later order denying a motion
to reconsider or reopen, and that therefore a motion
to reconsider or reopen does not extend the time to
appeal the underlying order. Stone v. INS, 514 U.S. 386, 394-
95 (1995). Following from Stone, a petition for review
must be filed within the deadline running from “the
specific order sought to be reviewed.” Nocon v. INS, 789
F.2d 1028, 1033 (3d Cir. 1986) (emphasis in original);
accord Muratoski v. Holder, 622 F.3d 824, 829-30 (7th Cir.
2010); Youkhana v. Gonzales, 460 F.3d 927, 933-34 (7th Cir.
2006); Asere v. Gonzales, 439 F.3d 378, 380-81 (7th Cir.
2006); Toufighi v. Mukasey, 538 F.3d 988, 995 (9th Cir. 2008);
Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
Because the time to petition for review is pegged to the
No. 11-2841 9
order to be reviewed, then the Board has reasonably
concluded that the time to move to reopen is pegged to
the order to be reopened.
The Sarmientos insist that the Board’s interpretation
is unreasonable. They contend that requiring a motion
to reopen to be filed within 90 days of the order it seeks
to challenge, rather than the last decision issued by the
Board, unfairly limits their ability to file both a motion
to reconsider and a motion to reopen. But the Board’s
approach does not prohibit parties from moving both
for reconsideration and reopening; it simply tightens
the timeline for doing so. The approach is thus
consistent with the purpose of the deadlines, which is to
“expedite petitions for review” and prevent “successive
and frivolous administrative appeals and motions.”
Stone, 514 U.S. at 399-400.
The Sarmientos’ final argument is that even if they
missed the 90-day deadline, it should have been
equitably tolled. The government responds that the
Sarmientos cannot raise this argument on appeal be-
cause they failed to exhaust their administrative
remedies by not raising the issue before the Board. The
Sarmientos reply that they invoked equitable consider-
ations in their motion to reopen and that the Board ad-
dressed equitable considerations in its order.
The Sarmientos may not raise the issue of equitable
tolling here. A party must exhaust all administrative
remedies before seeking review by this court, and failure
to raise a specific issue before the Board typically
forecloses a party from raising it on appeal. Arobelidze,
10 No. 11-2841
653 F.3d at 516-17. In their brief to the Board, the
Sarmientos did not mention equitable tolling (or a
similar concept like equitable estoppel, see Socop-Gonzalez
v. INS, 272 F.3d 1176, 1185 (9th Cir. 2001)), nor did they
cite any cases concerning equitable tolling. Their only
allusion to equity, asking in their conclusion that their
case be reopened “[i]n the exercise of justice and fair-
ness,” was too vague. Their failure to invoke equitable
tolling could be excused if the Board had nonetheless
addressed the issue, see Arobelidze, 653 F.3d at 517, but
it did not. The Board merely observed that the
Sarmientos’ circumstances did not justify reopening on
the Board’s own motion. The Sarmientos thus failed
to exhaust their administrative remedies with respect to
equitable tolling.
The petition for review is D ENIED.
5-21-12