Jose Aristy-Rosa v. Attorney General United States of AmericaJose Aristy-Rosa v. Attorney General United States of America
BOVE, Circuit Judge. For the fourth time, Petitioner Jose Arcenio Aristy-Rosa seeks to reopen a final removal order that was entered on consent in 2011. The primary basis for the removal order was a 1997 narcotics conviction in New York State. Despite the removal order and the conviction, Petitioner has been permitted to remain in the United States for 15 years, at liberty, while pressing meritless challenges to forestall his exit.
Changes in law are not a basis for relief under the statute that provides for motions to reopen. See
We previously vacated Petitioner‘s removal stay in a precedential opinion. See Aristy-Rosa v. AG, --- F.4th ----, 2026 WL 2363039 (3d Cir. 2026). We will now deny the Petition as to the motions for statutory reopening and reconsideration, and dismiss the Petition as to sua sponte reopening.
I.
Petitioner has been in the United States for almost 30 years. He has been subject to a final order of removal for about half that time. With the aid of counsel, he has been able to remain in the Country by stringing together four meritless challenges to the removal order.
Petitioner was admitted to the United States in 1993. The Executive Branch granted him the status of a lawful permanent resident based on his mother‘s status, which meant that he was a “noncitizen who is authorized to live permanently in the United States” so long as he obeyed the law. Blanche v. Lau, 146 S. Ct. 1981, 1986 (2026).1 He did not. Just four years after Petitioner arrived, he pleaded guilty in Queens, New York to attempted third-degree criminal sale of cocaine, in violation of
By 2011, Petitioner had moved to Pennsylvania. He did not notify immigration authorities of the move. In Pennsylvania, Petitioner had a wife, four minor children, and a girlfriend. The record indicates that, after Petitioner‘s New York conviction, he and his wife had issues with state-law criminal tax offenses and repeated traffic violations. CAR261-62. The record lacks detail about the disposition of those matters.
In January 2011, DHS issued Petitioner a Notice to Appear for removal proceedings based largely on his New York conviction and detained him pending those proceedings. DHS alleged that Petitioner was removable because the conviction was both a controlled-substance offense and an aggravated felony. See
Around the same time as the removal order, Petitioner collaterally attacked his drug conviction in New York. Relying on Padilla v. Kentucky, 559 U.S. 356 (2010), which post-dated the conviction, Petitioner argued that his trial counsel provided constitutionally ineffective assistance because the lawyer did not advise Petitioner of the immigration consequences associated with his guilty plea. The New York court denied the motion and granted Petitioner leave to appeal, but New York‘s intermediate appellate court later affirmed. See People v. Aristy, 979 N.Y.S.2d 634, 634 (N.Y. App. Div. 2014).
In June 2012, Petitioner filed a motion for sua sponte reopening. See
Petitioner filed a statutory motion to reopen in July 2012. He reiterated the ineffective-assistance arguments and also relied on recently filed applications for asylum, withholding of removal, and relief under the Convention Against Torture. An IJ denied the motion. The IJ held that Petitioner‘s narcotics conviction foreclosed asylum and withholding. The IJ also observed that Petitioner‘s recent application for removal relief was limited to “conclusory statements” and supported by “no evidence.” CAR123. Petitioner did not appeal.
B.
That brings us to the circumstances underlying the current Petition For Review. In May 2024, Petitioner filed a motion for relief from the 2011 removal order with the BIA. He invoked statutory reopening (for the second time), statutory reconsideration (for the first time), and the BIA‘s sua sponte authority (for the third time). Petitioner argued that under United States v. Minter, 80 F.4th 406 (2d Cir. 2023), his narcotics conviction did not qualify as a controlled-substance offense under
The BIA denied Petitioner‘s motions on March 3, 2025. The Board explained that the statutory motions were time-barred, that equitable tolling did not apply, and that sua sponte reopening was not appropriate. The Board cited Matter of M-N-I-, 28 I. & N. Dec. 803, 804-05 (BIA 2024), and other BIA authorities in support of the conclusion that Minter was not binding in the Third Circuit.
II.
The BIA had jurisdiction under
III.
Petitioner seeks retroactive application of the Second Circuit‘s 2023 Minter decision to his 2011 removal order. But not only that. Because Minter did not address immigration removals, Petitioner also asks us to extend that out-of-Circuit precedent. There are numerous defects in Petitioner‘s presentation of these arguments, which start to look a lot like another delay tactic upon close examination.
“The purpose of an appeal is to correct legal errors which occurred at the initial determination of deportability; it is not to permit an indefinite stalling of physical departure in the hope of eventually satisfying legal prerequisites.” INS v. Rios-Pineda, 471 U.S. 444, 450 (1985). As a procedural matter, Petitioner‘s motions were essentially dead on arrival. Today,
A.
Not everyone would see Minter as a change in the law in the context of a Third Circuit appeal, but we will credit Petitioner‘s characterization for purposes of this analysis. Petitioner assumes that equitable tolling is available to him based on Minter for purposes of reopening, but he skipped by a bigger problem with his argument. Changes in law are not a basis for statutory reopening, which means that equitable tolling does not come in to play here under
“Statutory interpretation proceeds on the assumption that those who draft and enact a provision generally intend its terms to mean what they mean in ordinary usage.” Mullin v. Doe, 146 S. Ct. 2121, 2135 (2026). Statutory motions to reopen must “state the new facts” to be “proven at a hearing” by “evidentiary material” such as “affidavits.”
The immediately adjacent provision relating to statutory motions for reconsideration drives home the point that a change in law is not a basis for statutory reopening. See
There is also a tighter deadline for statutory reconsideration motions: 30 days rather than the 90 days allotted for statutory reopening. Compare
B.
Petitioner hedged his bet on further delay by seeking statutory reconsideration too. Facing a 30-day deadline, he filed the motion about 13 years after his removal order. See
We cannot disregard statutory restrictions that are the product of bicameralism and presentment. But equitable tolling is not “a matter of some independent authority to reconsider the fairness of legislative judgments balancing the needs for relief and repose.” Lozano v. Montoya Alvarez, 572 U.S. 1, 18 (2014). The theoretical basis for this kind of tolling is that “Congress is presumed to incorporate equitable tolling
Indeed, no precedent of ours makes equitable tolling available on statutory motions for reconsideration. Nor have we ever held that equitable tolling applies to number bars on statutory motions for reconsideration or reopening. See Luntungan v. AG, 449 F.3d 551, 557 (3d Cir. 2006). There are “good reasons” to conclude that equitable tolling does not apply to these number bars. Enbridge Energy, LP v. Nessel ex rel. Michigan, 146 S. Ct. 1074, 1084-85 (2026); see also Lozano, 572 U.S. at 12 (warning against “export[ing] such background principles of United States law to contexts outside their jurisprudential home“); Garcia Morin v. Bondi, 152 F.4th 626, 632-35 (5th Cir. 2025); Estrada-Cardona v. Garland, 44 F.4th 1275, 1287 n.3 (10th Cir. 2022). Yet only the time bar is at issue in this case. Assuming equitable tolling is available to cure the untimeliness of a statutory reconsideration motion, Petitioner did not show that the relief he sought was appropriate.
Equitable tolling requires a showing of diligence and that the alien “in some extraordinary way has been prevented from asserting her rights.” D.J.S.-W. ex rel. Stewart v. United States, 962 F.3d 745, 750 (3d Cir. 2020); see also Nkomo v. AG, 986 F.3d 268, 272-73 (3d Cir. 2021). “Extraordinary” means “‘most unusual,’ ‘far from common,’ or ‘having little or no
Nothing of the sort happened to Petitioner. A recent judicial opinion interpreting long-standing statutes is not the type of extraordinary circumstance that warrants equitable tolling for an alien with a decades-old removal order. See Omar v. Lynch, 814 F.3d 565, 570 (1st Cir. 2016) (finding no abuse of discretion in BIA‘s rejection of equitable tolling based on “emerging . . . precedent” due to “the BIA‘s interest in finality“). There is no requirement that the BIA revisit removal orders “whenever, years later, the Supreme Court or a court of appeals disagrees with the Board‘s legal conclusions.” Shah v. Holder, 736 F.3d 1125, 1127 (7th Cir. 2013); cf. Debeato v. AG, 505 F.3d 231, 237 (3d Cir. 2007) (holding that collateral attacks on removal orders must be based on “the law as it existed at the time of the original deportation“). No precedent or equitable consideration required the BIA to assume that we would adopt the Second Circuit‘s reasoning, extend it to the immigration setting, and apply it retroactively for Petitioner‘s benefit.2
For all of these reasons, equitable tolling is not available based on a judicial decision that rests on statutory interpretation reasoning that the alien could have presented himself. That type of situation is not extraordinary. Regardless of the jurisdiction that issues such an opinion, permitting equitable tolling under those circumstances would undermine finality in a manner that is wholly inconsistent with the statutory scheme. Petitioner did not identify an obstacle to a timely motion for reconsideration or any other inequitable circumstances sufficient to require tolling. Accordingly, the BIA did not err in rejecting this argument and denying Petitioner‘s motion for statutory reconsideration.
We will dismiss the Petition For Review for lack of jurisdiction insofar as Petitioner challenges the BIA‘s denial of his motion for sua sponte reopening.
“If a party‘s request to reopen a case sua sponte sounds like a misnomer, that‘s because it is.” Herrera v. Bondi, 162 F.4th 617, 622 (6th Cir. 2025). BIA action in response to an alien‘s motion is not sua sponte in any conventional sense. The usage appears to derive from the fact that this narrow alternative pathway to reopening is a “creature[] of regulation, crafted by the Attorney General at the behest of Congress.” In re G-D-, 22 I. & N. Dec. 1132, 1134 (BIA 1999) (en banc). As such, sua sponte reopening is committed to “the discretion of the Board,” and DOJ has empowered the BIA to deny a motion invoking this authority even where “the moving party has made out a prima facie case for relief.”
“The Attorney General can, in exercising his discretion, legitimately avoid creating a further incentive for stalling” by authorizing the denial of these motions for any reason or no reason at all. Rios-Pineda, 471 U.S. at 450. The BIA, in turn, “is entitled to conclude that an alien cannot avoid the consequences of his own litigation strategy by filing years-late requests with a ‘sua sponte’ label attached.” Shah, 736 F.3d at 1127. Even if there is an “exceptional situation,” “the BIA may still decide against reopening.” Sang Goo Park v. AG, 846 F.3d 645, 650 (3d Cir. 2017).
“Because such motions are committed to the unfettered discretion of the BIA,” we generally “lack jurisdiction to review a decision on whether and how to exercise that discretion.” Pllumi v. AG, 642 F.3d 155, 159 (3d Cir. 2011).
A separate line of BIA precedent instructs that sua sponte reopening may be appropriate based on a “fundamental change” in the law, such as the statutory amendments pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. In re X-G-W-, 22 I. & N. Dec. 71, 74 (BIA 1998) (en banc). The Board has warned, however, that “[n]ew case law” does not typically result in a fundamental change in law. In re G-D-, 22 I. & N. Dec. at 1135.
Much of that case law builds on the past, seldom reflecting dramatic departures from the legal principles that are routinely applied to resolve the appeals that come before us. If each incremental development in the case law were considered to be a change warranting reopening on the Board‘s own motion, the implications for the motions regulations and for the finality of proceedings would be profound.
Id. The BIA‘s logic is sound and consistent with the government‘s well-established interests in finality.
When the BIA makes a decision regarding whether a judicial decision reflects a “fundamental” change in law
IV.
For the foregoing reasons, we will deny the Petition For Review as to Petitioner‘s motions for statutory reopening and statutory reconsideration, and dismiss the Petition as to the denial of the motion for sua sponte reopening.