Alejandro Salazar -Marroquin v. WILLIAM P. BARR , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1669
A LEJANDRO SALAZAR -MARROQUIN,
Petitioner,
v.
WILLIAM P. BARR ,
Attorney General of the United States,
Respondent.
____________________
On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A089-283-631.
____________________
A RGUED D ECEMBER 18, 2019 — D ECIDED A UGUST 13, 2020
____________________
Before HAMILTON, BRENNAN, and S CUDDER , Circuit Judges.
HAMILTON , Circuit Judge. Under immigration law, it can
make a big difference whether a non-citizen entered the
United States legally or not. For petitioner Alejandro Salazar-
Marroquin and his family, the difference is whether his mar-
riage to a United States citizen makes him at least legally eli-

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2 No. 19-1669
gible for an adjustment of status that might allow him to re-
main in the United States lawfully. 8 U.S.C. § 1255(a). If he is
not eligible and is removed after having failed to appear for
his removal hearing in 2011, he will be inadmissible to the
United States for five years after his removal. 8 U.S.C.
§ 1182(a)(6)(B).
The question of how petitioner entered the United States
can be reached, however, only if petitioner can overcome sev-
eral procedural obstacles, so we need to review the progress
of his case in some detail. We conclude that under Fuller v.
Whitaker, 914 F.3d 514 (7th Cir. 2019), petitioner is entitled to
have the Board of Immigration Appeals take a fresh look at
his motion to have his case reopened based on evidence that
he entered legally, despite the generally applicable time-and-
number limits on motions to reopen.
I. Factual and Procedural Background
Petitioner Salazar-Marroquin is a Mexican citizen. He says
that he entered the United States with a B-2 visitor’s visa in
2000 when he was 16 years old, but he stayed despite the ex-
piration of his visa. In 2010 he was arrested for driving with-
out a license and was referred to the Department of Home-
land Security.
The Department personally served petitioner with a No-
tice to Appear charging him as removable as an alien present
in the United States without having been properly admitted.
See 8 U.S.C. § 1182(a)(6)(A)(i). The Notice to Appear con-
tained what was at the time standard boilerplate language.
Instead of specifying a time and date for his removal hearing,
it said only “to be set.” See Ortiz-Santiago v. Barr, 924 F.3d 956,

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No. 19-1669 3
958 (7th Cir. 2019) (describing process by which time-and-
date information is provided later in a Notice of Hearing).
Petitioner then received two Notices of Hearing, causing
confusion, he says, that led him to miss his removal hearing.
The first notice, sent in August 2010, a month after the Notice
to Appear, set his removal hearing for January 10, 2012, more
than a year later. The second, sent in January 2011, re-set the
hearing for an earlier date, February 15, 2011, only five weeks
after the notice.
Petitioner failed to show up at the rescheduled hearing. He
was ordered removed in absentia. The immigration judge
found that the Department had established the allegations in
the Notice to Appear—that Salazar-Marroquin was an alien
in the country without having been admitted. The finding was
based on information contained in a document called the
“Record of Deportable/Inadmissible Alien.” The judge or-
dered petitioner removed to Mexico based on this charge.
Petitioner filed two motions to reopen the proceedings. In
the first, filed in 2011 just days after the removal hearing and
order, he asserted that he had been confused about his hear-
ing date owing to the two notices. The judge denied the mo-
tion, finding that petitioner had not shown that his failure to
appear was due to lack of notice or “exceptional circum-
stances” as defined in 8 U.S.C. § 1229a(b)(7) & (e)(1). The
Board denied his appeal.
In his second motion to reopen, filed in 2012 directly with
the Board, petitioner argued that he may be eligible for pros-
ecutorial discretion based on an unspecified memorandum
recently issued by the Department—presumably a reference

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4 No. 19-1669
to the Deferred Action for Childhood Arrivals (DACA) pro-
gram. This too was denied.
In 2018, and represented by new counsel, petitioner filed
the motion that is the subject of this petition for judicial re-
view. This was his third motion to reopen his removal pro-
ceedings and to vacate his removal order. For the first time,
he asserted that he had been charged incorrectly back in 2010
as removable because, instead of entering the country ille-
gally, he had been admitted on a B-2 visa and had never left.
He supplemented his motion with an affidavit and copies of
a visa and his passport bearing a stamp from U.S. immigra-
tion authorities showing that he entered the country legally in
Laredo, Texas, on August 11, 2000.
Because he was not removable as charged, petitioner ar-
gued, his ten years’ continuous presence here should allow
him to seek cancellation of removal if the proceedings were
terminated and a new Notice to Appear were issued. He also
asserted that he should be allowed to seek adjustment of sta-
tus based on his recent marriage to a U.S. citizen. See 8 U.S.C.
§ 1255(a).
Petitioner gave two reasons why his removal proceedings
should be reopened. First, he said exceptional circumstances
caused his failure to appear, and time-and-number limits on
the motion should be equitably tolled. See 8 U.S.C.
§ 1229a(b)(5)(C)(i) & (c)(7). He does not renew that argument
on judicial review.
Second, he argued that a miscarriage of justice would re-
sult “since [he] was never removable as charged and since he
is prima facie eligible for adjustment of status.” As for this lat-
ter basis, he argued that exceptional circumstances justified

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No. 19-1669 5
reopening the proceedings based on the Board’s sua sponte au-
thority. The Department opposed the motion, arguing that
petitioner had exceeded the time-and-number limits on mo-
tions to reopen and did not merit discretionary relief.1
A month later, Salazar-Marroquin filed a supplemental
motion to terminate his removal proceedings based on Pereira
v. Sessions, 138 S. Ct. 2105, 2113–14 (2018), which held that a
Notice to Appear lacking the specific time or place of the re-
moval proceedings was deficient under 8 U.S.C.
§ 1229(a)(1)(G) and thus did not trigger the “stop-time” rule
under 8 U.S.C. § 1229b(d)(1). Petitioner’s 2010 Notice to Ap-
pear was similarly deficient. He argued that the immigration
judge thus lacked jurisdiction over his proceedings, which
should be terminated. The Department opposed the motion,
asserting that it was time-barred and based on a faulty inter-
pretation of Pereira.
In a brief order, the Board denied petitioner’s 2018 motion
to reopen. Characterizing the motion as a request “to have the
proceedings reopened in order to pursue adjustment of status
based upon a petition filed … by his [wife],” the Board re-
jected the motion because it was untimely and did not meet
1 Describing the motion as seeking a “sua sponte” reopening is a common
but unfortunate misnomer and even an oxymoron. Board action on a mo-
tion would not be sua sponte. Strictly speaking, such a motion asks the
Board to waive the time-and-number limits on motions to reopen in 8
U.S.C. § 1229a(c)(7)(A) & (C)(i), and 8 C.F.R. § 1003.2(c)(2). See Malukas v.
Barr, 940 F.3d 968, 969 (7th Cir. 2019) (phrase “motion to reopen sua sponte”
is an “oxymoron”). But the phrase distinguishes the Board’s inherent
power to reopen removal proceedings at any time from a party’s right to
file one motion to reopen within 90 days of a final agency determination.
See Fuller v. Whitaker, 914 F.3d 514, 515 n.1 (7th Cir. 2019) (recognizing dis-
tinction).

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6 No. 19-1669
any of the time-limit exceptions. The Board added that it de-
clined to exercise its sua sponte authority to grant the “motion
to pursue adjustment of status” because petitioner’s situation
was not exceptional and the Board lacked the “power to grant
equitable remedies or to confer general humanitarian relief on
aliens.” In a footnote, the Board denied the motion to termi-
nate the removal proceedings, distinguishing Pereira on the
ground that petitioner had eventually received adequate no-
tice of the time and place of the hearing.
II. Analysis
On judicial review, petitioner Salazar-Marroquin offers
two reasons for reopening his case. Citing Pereira, he seeks to
terminate or reopen the proceedings based on the absence of
a time and place in his Notice to Appear. Second, he argues
that the Board completely missed the point of his new evi-
dence that he actually entered the United States lawfully, with
a visa, back in 2000. We reject the first reason but agree with
petitioner on the second.
A. The Pereira Issue
Petitioner did not raise the Pereira issue until long after the
proceedings had produced a removal order and the denial of
two motions to reopen. He thus forfeited the Pereira error—
the absence of a specific time and place for his hearing in his
Notice to Appear. We have held that, as with other violations
of claim-processing rules, a defective Notice to Appear “may
be grounds for dismissal of the case,” but a party’s failure to
timely raise it may result in forfeiture. Ortiz-Santiago v. Barr,
924 F.3d 956, 963 (7th Cir. 2019).
Petitioner could have raised this argument earlier, relying
on what we have called the “clear statutory text” and the

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No. 19-1669 7
Third Circuit’s earlier disagreement with the effect of a non-
compliant Notice to Appear. See id. at 964, citing Orozco-Ve-
lasquez v. U.S. Att’y Gen., 817 F.3d 78, 81–83 (3d Cir. 2016). This
failure is not excused because petitioner cannot show that he
was prejudiced by the defective Notice to Appear. He admits
that he received the later Notices of Hearing, which both con-
tained the times and place of his scheduled and rescheduled
hearing. See Ortiz-Santiago, 924 F.3d at 964–65 (finding no
prejudice); Vyloha v. Barr, 929 F.3d 812, 817 (7th Cir. 2019)
(same where petitioner, after having received notice, failed to
show up at second hearing where he was ordered removed in
absentia).
B. Petitioner’s Original Entry into the United States
We turn to petitioner’s second reason for reopening his
case: that he had in fact entered the United States legally back
in 2000. In cases involving the denial of a motion to waive the
time-and-number limits for motions to reopen (i.e., a motion
to reopen “sua sponte”), our jurisdiction is very narrow. The
Board has said that it reserves the power to reopen any case
on its own motion for “exceptional situations.” In re J– J–, 21
I. & N. Dec. 976, 984 (B.I.A. 1997). Because no law defines what
situations will qualify as “exceptional,” we have held that the
merits of these denials are unreviewable. Fuller v. Whitaker,
914 F.3d 514, 519 (7th Cir. 2019).
We held in Fuller, however, that we retain the authority to
assess both constitutional issues and “legal errors the Board
may have committed in disposing of such a motion.” Id., cit-
ing 8 U.S.C. § 1252(a)(2)(D). Such legal errors include
“whether [the] Board’s stated rationale for denying such a
motion indicates that it ignored evidence that the alien ten-
dered in support of his request.” Id.; accord, Arej v. Sessions,

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8 No. 19-1669
852 F.3d 665, 667 (7th Cir. 2017) (granting petition where
Board ignored evidence that supported motion to reopen on
grounds of changed circumstances—a civil war in petitioner’s
home country of South Sudan); Iglesias v. Mukasey, 540 F.3d
528, 531 (7th Cir. 2008) (finding jurisdiction to review denial
of motion to reopen where Board completely ignored evi-
dence that supported motion, but denying relief where legal
error was harmless).
Our narrow jurisdiction to review the Board’s reasons for
denying such motions is controversial. It also presents a pro-
verbially slippery slope. The line between, on one hand, per-
missibly finding that the Board ignored evidence or misun-
derstood the basis of a motion to reopen, and, on the other
hand, impermissibly reviewing the merits of the Board’s ex-
ercise of discretion is a fine one. The Board’s understandable
tendency to deny motions to reopen in short, terse orders
makes that line even finer.
In Fuller, for instance, a Jamaican citizen filed an untimely
motion to reopen his removal proceedings. We found that the
Board had mischaracterized the basis for the motion and the
significance of additional letters of support he submitted with
that motion. We found that remand was warranted because
the Board had misunderstood that petitioner not to be chal-
lenging its conclusions about his credibility about his sexual
orientation, his history of persecution in Jamaica, or his eligi-
bility for deferral of removal. In fact, we emphasized, the
“substance of his motion” was a “direct challenge to these
conclusions.” Fuller, 914 F.3d at 520.
We revisited Fuller’s rationale in Malukas v. Barr, 940 F.3d
968 (7th Cir. 2019). We noted the Board’s “unfettered discre-

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No. 19-1669 9
tion” to reopen removal proceedings sua sponte, and we ob-
served that our approach in Fuller conflicted with rulings
from other circuits. See id. at 970, citing Butka v. U.S. Att’y Gen.,
827 F.3d 1278, 1286 n.7 (11th Cir. 2016) (review governed by
Administrative Procedure Act, not 8 U.S.C. § 1252(a)(2)(D), so
courts may review, at most, only for constitutional errors),
and Rais v. Holder, 768 F.3d 453, 460 (6th Cir. 2014). We also
noted that two cases pending before the Supreme Court this
term might shed additional light on the issue. Even under the
Fuller approach, however, we found that Malukas was not en-
titled to relief because the Board’s explanation for its decision
not to reopen sua sponte did not contain or imply any legal
error. Id. at 971.
In this case, on the other hand, we agree with petitioner
that the Board misapprehended the principal basis for his mo-
tion to reopen: that contrary to the charge set forth in the No-
tice to Appear and his removal order, he in fact entered the
country legally. As a result, petitioner argued, (1) he
was wrongfully charged and ordered removed, so his re-
moval proceedings should be terminated, and (2) he should
be eligible for adjustment of status. In its denial, however, the
Board addressed only his potential adjustment of status.
There was no reference to the fundamental question whether
he had entered the country legally, so that he was wrongfully
charged and could be eligible for cancellation of removal.
The problem here was not a failure to offer any explana-
tion. The problem was that the “glaring error in what [the
Board] did say suggests it may never have given meaningful
consideration” to his alleged legal entry. Fuller, 914 F.3d at
522. The Board need not itemize each piece of evidence of-
fered, see Ji Cheng Ni v. Holder, 715 F.3d 620, 625 (7th Cir.

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10 No. 19-1669
2013), but it may not “simply disregard relevant evidence.”
Id.; see also Arej v. Sessions, 852 F.3d 665, 667 (7th Cir. 2017).
The Board’s silence on petitioner’s asserted legal entry
brings this case within the narrow confines of Fuller. The
Board has yet to adjudicate his argument that he was charged
incorrectly, which requires in turn, he argues, that his pro-
ceedings be terminated. See In re R– D–, 24 I. & N. Dec. 221,
225–26 (B.I.A. 2007) (affirming termination where alien had
been charged incorrectly as a person present in the United
States illegally, as distinct from an arriving alien seeking en-
try). If petitioner is correct, it appears he may be eligible to
seek cancellation of removal or perhaps some other relief as a
spouse of a U.S. citizen.
* * *
In finding that the Board misapprehended the basis for pe-
titioner’s motion, we say nothing of the merits of his case for
the sua sponte reopening of his removal proceedings. But in
the first instance the Board should consider whether peti-
tioner’s alleged legal entry and his supporting evidence merit
reopening of his removal proceedings. We GRANT the peti-
tion for review and REMAND the case to the Board for further
proceedings consistent with this opinion.

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No. 19-1669 11
SCUDDER , Circuit Judge, with whom BRENNAN, Circuit
Judge, joins, concurring. The majority opinion, which I join in
full, reflects a faithful application of our decision in Fuller v.
Whitaker, 914 F.3d 514 (7th Cir. 2019). I write separately only
to emphasize my view that our full court should revisit Fuller.
The Board of Immigration Appeals has expansive
discretion to deny a motion to reopen removal proceedings
sua sponte and only grants such relief in “exceptional”
circumstances. Anaya-Aguilar v. Holder, 683 F.3d 369, 372–73
(7th Cir. 2012). The Supreme Court recently held that a
request for equitable tolling in similar circumstances is
reviewable as an application of a legal standard to settled
facts. See Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062, 1068 (2020).
But there is no such legal standard to apply in this case, nor
was there one in Fuller. The Board’s broad discretion has the
consequence of precluding judicial review. See Anaya-Aguilar,
683 F.3d at 372–73.
What concerns me too is the very practical. Fuller (and
today’s decision) risks imposing an opinion-writing
requirement on the Board—a mandate that the Board address
every argument advanced by a non-citizen petitioner to avoid
a “legal error.” That outcome stands in tension with the
Board’s vast discretion, which should include the ability to
summarily consider and dismiss all arguments without
explanation, as our court routinely does in many appeals. See
Malukas v. Barr, 940 F.3d 968, 970–71 (7th Cir. 2019).

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