Ismael Hernandez-Alvarez v. William Barr, 982 F.3d 1088

Hernandez‑Alvarez, a Mexican national and U.S. lawful permanent resident, was convicted in Illinois (2002) of indecent solicitation of a child after arranging sex with an undercover officer he believed to be 15.
DHS charged him as removable as having committed an aggravated felony (sexual abuse of a minor or an attempt) and served a notice to appear that initially lacked time/place; a subsequent notice of hearing provided those details.
An IJ ordered removal; the Board (2004) affirmed. Hernandez‑Alvarez filed a motion to reconsider in 2004 but was removed to Mexico before the Board ruled; the Board considered the motion withdrawn under its regulation.
In 2019 Hernandez‑Alvarez moved to reopen/reconsider based on two Supreme Court decisions (Esquivel‑Quintana and Pereira), arguing: (1) Esquivel‑Quintana undermined characterization of his conviction as an aggravated felony; (2) Pereira rendered his defective NTA jurisdiction‑stripping.
The Board denied statutory reopening/reconsideration as untimely and refused equitable tolling (lack of diligence), held Ortiz‑Santiago controlled (foreclosing his Pereira claim), and declined to reopen sua sponte.
The Seventh Circuit denied review of the statutory denials (no abuse of discretion) and dismissed review of the sua sponte refusal for lack of jurisdiction (no legal error shown).

Issue	Hernandez‑Alvarez's Argument	Board/Government's Argument	Held
Relation back of 2019 motion to 2004 motion	2019 motion relates back because the 2004 motion was still pending (Board lacked authority to withdraw)	The Board withdrew the 2004 motion; petitioner did not raise relation‑back to the Board	Failed to exhaust administrative remedies; court declined to reach merits
Equitable tolling of motion to reconsider	Delay excusable; tolling warranted given intervening Esquivel‑Quintana and practical obstacles	Nine‑year gap and two‑year delay after Esquivel‑Quintana shows lack of due diligence	Board did not abuse discretion denying equitable tolling
Pereira/NTA jurisdictional defect	Original NTA lacking time/place rendered IJ proceedings void; relief timely excused	Ortiz‑Santiago holds such NTA defect is a claims‑processing rule; relief available only if timing excused and prejudice shown	Board reasonably applied Ortiz‑Santiago; petitioner failed to plausibly show prejudice; no remand
Board’s refusal to reopen sua sponte	Esquivel‑Quintana makes the case exceptional and warrants sua sponte reopening	Sua sponte reopening is discretionary and reserved for extraordinary cases; no legal error in denial	Denial is unreviewable on the merits; dismissal for lack of jurisdiction as no legal error shown

Esquivel‑Quintana v. Sessions, 137 S. Ct. 1562 (2017) (state statute criminalizing sex with a 17‑year‑old does not categorically constitute federal "sexual abuse of a minor")
Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA that omits time/place does not trigger the stop‑time rule)
Marin‑Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010) (Board may entertain motions after alien's removal)
Ortiz‑Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (NTA time/place requirement is claims‑processing; relief requires timely objection or excusable delay plus prejudice)
Hernandez‑Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. 2005) (seventh circuit previously held solicitation conviction could be treated as attempt/aggravated felony)
Ramos‑Braga v. Sessions, 900 F.3d 871 (7th Cir. 2018) (filing deadlines for motions to reconsider are claim‑processing rules subject to equitable tolling)
El‑Gazawy v. Holder, 690 F.3d 852 (7th Cir. 2012) (equitable tolling requires demonstration of due diligence)