Devon Nunes v. Attorney General United States of America
23-1876
3rd Cir.Mar 1, 2024Background
- Devon Nunes, a Jamaican citizen, was found removable in 2009 for failing to comply with his student visa conditions.
- His application for cancellation of removal was denied due to lack of hardship to a qualifying relative, and the BIA and Third Circuit affirmed.
- Nunes repeatedly moved to reopen his removal proceedings, including for adjustment of status based on marriage to a U.S. citizen, but each motion was denied as untimely or number-barred.
- In 2022, Nunes filed a fourth pro se motion to reopen, arguing prior counsel's errors, changes in law, and eligibility for relief due to the expiration of a ten-year bar on adjustment of status.
- The BIA denied the motion as time- and number-barred and declined to reopen sua sponte, and Nunes sought review from the Third Circuit.
Issues
| Issue | Nunes's Argument | Government's Argument | Held |
|---|---|---|---|
| Time and number bar for motion to reopen | Counsel's failure justified equitable tolling; eligible for relief now | Claims do not meet exceptions; prior motions also untimely | Motion time- and number-barred; no exception |
| Jurisdiction over BIA’s sua sponte denial | BIA’s ruling not reviewable; lacked sufficient explanation | Decision is discretionary and unreviewable | Court lacks jurisdiction over discretionary |
| Effect of change in law (Guadalupe) | New precedent should allow relief | Does not apply; Nunes seeks adjustment, not cancellation of removal | Guadalupe not implicated |
| Administrative closure request | BIA failed to address request for administrative closure | Proceedings already closed after removal | No relief warranted as proceedings closed |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (notice to appear omitting hearing time/place does not trigger stop-time rule for cancellation of removal)
- Guadalupe v. Att’y Gen., 951 F.3d 161 (3d Cir. 2020) (notice of hearing does not cure an initial notice to appear missing time/place for stop-time rule purposes)
- Nkomo v. Att’y Gen., 930 F.3d 129 (3d Cir. 2019) (rejects argument that defective notice to appear deprives IJ of jurisdiction)
- Arcos Sanchez v. Att’y Gen., 997 F.3d 113 (3d Cir. 2021) (explains doctrine and function of administrative closure in immigration cases)