Cite as 29 I&N Dec. 843 (BIA 2026)

Cite as 29 I&N Dec. 843 (BIA 2026)

Interim Decision #4235

Matter of M-M-L-J-, Respondent

Decided August 18, 2026

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien is permitted to file only one motion to reopen, whether with the Immigration

Court or the Board of Immigration Appeals, subject to the limited statutory exception for

battered spouses, children, and parents, and equitable tolling does not apply to the number

bar.

FOR THE RESPONDENT: Divyesh Gopal, Esquire, Nashville, Tennessee

BEFORE: Board Panel: MALPHRUS, Chief Appellate Immigration Judge; GEMOETS

and VOLKERT, Appellate Immigration Judges.

VOLKERT, Appellate Immigration Judge:

The respondent, a native and citizen of Jordan, was issued a final order

of removal on March 11, 2020, when we dismissed his appeal of the

Immigration Judge’s March 26, 2018, decision ordering him removed and

denying relief. The respondent subsequently filed three untimely motions to

reopen. All three previously filed motions were denied. The respondent has

filed a fourth motion to reopen, seeking to reopen based on a Petition for

Alien Relative (Form I-130) filed by his third wife. We will deny the motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent entered the United States in August 2010, as an F-1

nonimmigrant student to attend the University of Nebraska. The respondent

admitted he failed to comply with the terms of his nonimmigrant status and

did not attend the required academic program. In 2011, he married a United

States citizen; however, as a result of domestic violence issues that included

an arrest warrant issued against the respondent, the relationship ended soon

after.

On October 1, 2011, the respondent was served with a notice to appear

and charged with removability under section 237(a)(1)(C)(i) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(C)(i)

(2006), for failing to comply with the conditions of his F-1 nonimmigrant

status. On May 12, 2012, the respondent was convicted of criminal

impersonation. The notice to appear was subsequently filed with the

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Immigration Court on August 1, 2012. The respondent conceded the factual

allegations and charge of removability, and filed an application for special

rule cancellation of removal on the ground that his first wife, from whom he

was divorced, had abused him. Based on inconsistencies between the

respondent’s evidence and the police warrants describing the incidents, as

well as insufficient evidence corroborating the respondent’s testimony, the

Immigration Judge determined that the respondent had not met his burden of

proving he experienced battery or extreme cruelty at the hands of his first exwife or that his removal would result in extreme hardship. We dismissed the

respondent’s appeal of the Immigration Judge’s decision on March 11, 2020.

Thereafter, the respondent filed two untimely motions to reopen. The

first motion to reopen was based on a pending Form I-130 filed by his second

wife, who was a lawful permanent resident. The respondent’s second motion

to reopen alleged ineffective assistance of his former counsel. On

October 23, 2020, we denied both motions. With respect to the ineffective

assistance of counsel claim, we held that the respondent failed to demonstrate

compliance with the requirements of Matter of Assaad, 23 I&N Dec. 553,

556–57 (BIA 2003), and Matter of Lozada, 19 I&N Dec. 637, 639–40 (BIA

1988), aff’d, 857 F.2d 10 (1st Cir. 1988), and did not show prejudice. The

United States Court of Appeals for the Sixth Circuit denied the respondent’s

petition for review of the Board’s October 23, 2020, decision. Jaradat v.

Garland, No. 20-4192, 2021 U.S. App. LEXIS 33894 (6th Cir. Nov. 15,

2021).

The respondent then married his third wife, a naturalized United States

citizen. He filed his third motion to reopen based on a Form I-130 filed by

his third wife. We denied the motion on October 30, 2025. Currently before

the Board is the respondent’s fourth motion to reopen in which he requests

reopening based on the same Form I-130 filed by his third wife and again

alleges ineffective assistance of his former counsel. While the respondent

styles his motion as a request for us to exercise our sua sponte authority, in

substance he again seeks to equitably toll the statutory time and number

limitations on reopening due to ineffective assistance of former counsel, and

so we construe it as such.

II. ANALYSIS

Section 240(c)(7)(A) of the INA, 8 U.S.C. § 1229a(c)(7)(A) (2024),

provides: “An alien may file one motion to reopen proceedings under this

section, except that this limitation shall not apply so as to prevent the filing

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of one motion to reopen described in subparagraph (C)(iv).” 1 The statutory

language provides the starting point for our review of the number bar. Lamie

v. United States Trustee, 540 U.S. 526, 534 (2004). The plain language of

the statute is clear—aliens are permitted to file one motion to reopen, with a

statutory exception for battered spouses, children, and parents. See TapiaMartinez v. Gonzales,482 F.3d 417, 421 (6th Cir. 2007) (holding that the

INA “provides that an alien who is ordered removed may file only one

motion to reopen”); see also Garcia Morin v. Bondi, 152 F.4th 626, 632–33

(5th Cir. 2025), cert. denied, 224 L.Ed.2d 498 (Apr. 20, 2026) (holding that

the INA makes clear that an alien is only permitted to file one motion to

reopen and that this rule is binding unless the single enumerated exception

applies); Djie v. Garland, 39 F.4th 280, 283–85 (5th Cir. 2022) (same). 2

Thus, we hold that an alien is permitted to file only one motion to reopen,

whether with the Immigration Court or the Board, subject to the limited

statutory exception for battered spouses, children, and parents. See also

8 C.F.R. § 1003.2(c)(2) (2026). The policy purpose behind this rule is rooted

in “Congress’s decision to impose a finite restriction on reopening motions

[that] reflects a key background principle: finality.” Garcia Morin, 152

F.4th at 633. “[T]he number bar represents Congress’s attempt to balance

aliens’ interest in having ‘a fair opportunity to develop and present their

respective cases’ with the ‘strong public interest in bringing litigation to a

close.’” Id. (quoting INS v. Abudu, 485 U.S. 94, 107 (1988)).

Although the number bar precludes the filing of more than one motion to

reopen, the respondent has now filed four motions to reopen. We deny the

respondent’s motion on this basis.

The respondent argues that equitable tolling of the number bar should be

applied to his motion to reopen based on ineffective assistance of his former

counsel. The Sixth Circuit has not determined whether equitable tolling

applies to the INA’s number bar on motions to reopen. Tapia-Martinez v.

Gonzales, 482 F.3d at 422–23 (noting that, although the Sixth Circuit has

applied the doctrine of equitable tolling to time-barred motions, it has never

The exception in section 240(c)(7)(C)(iv) of the INA, 8 U.S.C. § 1229a(c)(7)(C)(iv),

provides a “[s]pecial rule for battered spouses, children, and parents.” To qualify for this

special rule, an alien must satisfy four strict requirements. The respondent does not assert

that this exception applies to the current motion to reopen.

1

The respondent’s motion does not request reopening for asylum and related relief based

on changed country conditions or circumstances. Thus, we do not consider whether the

number bar applies to such motions.

2

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held that equitable tolling applies to the number bar for reopening). We hold

that the INA’s number bar on motions to reopen is not subject to equitable

tolling.

As the Fifth Circuit explained in holding that equitable tolling does not

apply to the number bar:

The INA’s text could not be clearer: ‘An alien may file one motion to reopen

proceedings under this section, except that this limitation shall not apply so as to

prevent the filing of one motion to reopen described in subparagraph (C)(iv).’

8 U.S.C. § 1229a(c)(7)(A). Congress’s rule-creating provision itself specifies there’s

just one exception. Because the statute lays out a mandatory rule and only one

enumerated exception, the statute’s silence on further exceptions implicitly rules

them out.

Garcia Morin, 152 F.4th at 632 (citation modified).

The Fifth Circuit examined the history of equitable tolling in depth and

concluded that there is no basis for applying equitable tolling to the INA’s

number bar for motions to reopen. Id. at 632–34. 3 The court explained that

a number bar “involves a ‘significant difference’” from a statute of

limitations, id. at 633 (quoting Jones v. Hendrix, 599 U.S. 465, 491 (2023)),

and “reading an equitable exception into a numerical cap on motions to

reopen is an altogether different undertaking.” Id. at 632. “The Supreme

Court made this very point when contrasting AEDPA’s statute of limitations

with AEDPA’s restrictions on second-or-successive petitions.” Id. In Jones,

the Supreme Court of the United States explained that, in contrast to

“[s]tatutes of limitations [which] merely govern the timeframe for bringing a

claim,” numerical limits “constitute a modified res judicata rule . . . and thus

embody Congress’s judgment regarding . . . the appropriate balance between

finality and error correction.” 599 U.S. at 491 (internal citation omitted).

The Fifth Circuit found that the reasoning in Jones also applies in this

context. “Whether restricting the number of habeas petitions or the number

of motions to reopen, a number bar is a substantive restriction on a

petitioner’s ability to obtain relief—an intentional restraint on the petitioner’s

cause of action.” Garcia Morin, 152 F.4th at 633 (citation modified).

3

In Garcia-Morin, the Fifth Circuit discusses equitable tolling authority in the context of

its Article III judicial authority, observing that “Congress usually leaves in place ‘courts’

traditional equitable authority’ to pause the timer on filing an action” in regard to statutes

of limitations. Garcia Morin, 152 F.4th at 634 (quoting Holland v. Florida, 560 U.S. 631,

646 (2010)). The Fifth Circuit does not identify a similar source of equitable authority for

the Immigration Courts or the Board, and we know of none. The Fifth Circuit distinguished

the Board’s sua sponte reopening authority on this basis. Id. at 634–35.

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“Unlike time limits, substantive limits and res judicata rules have no

background equitable exceptions.” Id.

We are not aware of, and the respondent does not identify, any legal basis

for tolling a numerical limitation against which Congress was legislating

when it enacted section 240(c)(7)(A) of the INA, 8 U.S.C. § 1229a(c)(7)(A),

which mandates only one motion to reopen removal proceedings subject to a

very limited exception. The statutory language clearly does not provide for

a second motion to reopen but rather restricts the respondent to only one

motion to reopen. As the Fifth Circuit explained, the key background

principle for the statutory number limitation was finality, balanced against

the interest in providing aliens an opportunity to present their case:

That’s exactly what Congress was doing with AEDPA’s limitations, too, striking

“the appropriate balance between finality and error correction.” Jones, 599 U.S. at

491. In both instances, the number bar represents Congress’s deliberate choice to

preserve finality. Were a court to superimpose an equitable workaround, we would

be “effectively . . . adopting a presumption against finality as a substantive value.”

Ibid. That is Congress’s choice to make, not ours.

Garcia Morin, 152 F.4th at 633. We agree with this analysis and hold that

equitable tolling does not apply to the number bar for motions to reopen set

forth in section 240(c)(7)(A) of the INA, 8 U.S.C. § 1229a(c)(7)(A). 4 We

will apply this rule in all circuits that have not yet spoken on whether

equitable tolling applies to the number bar on motions to reopen. See Matter

of U. Singh, 25 I&N Dec. 670, 672 (BIA 2012) (“We apply the law of the

circuit in cases arising in that jurisdiction, but we are not bound by a decision

of a court of appeals in a different circuit.”).

We have considered that several circuit courts have applied equitable

tolling to the motions to reopen number bar in some fashion. See, e.g., Zhao

v. INS, 452 F.3d 154, 157–60 (2d Cir. 2006) (per curiam); Ray v. Gonzales,

439 F.3d 582, 590 (9th Cir. 2006); Ramos-Braga v. Sessions, 900 F.3d 871,

876 (7th Cir. 2018) (per curiam). 5 However, these decisions provide minimal

analysis on why equitable tolling applies to the number bar, and, in fairness,

these courts did not have the opportunity to consider this issue in light of

As explained infra at 848, the Board has discretionary sua sponte authority to address

legitimate injustice or potential due process concerns.

4

In Garcia Morin, the Fifth Circuit observed that several circuits have addressed the

number bar as a claim-processing rule, but the court rejected the conclusion that equitable

tolling therefore necessarily applies. 152 F.4th at 633–34. We agree with the Fifth

Circuit’s reasoning in this regard.

5

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Jones. Furthermore, having been called upon to consider a question of

administrative relevance, we are persuaded by the Fifth Circuit’s

comprehensive analysis in Garcia Morin, speaking to the legislative interest

in restricting motions to reopen in immigration proceedings. See Morris v.

Blanche, 179 F.4th 489, 502 (6th Cir. 2026) (noting that the Board is an

adjudicative body that exercises authority delegated to it by the United States

Attorney General, including review of administrative determinations in

immigration proceedings).

To that end, circuit court decisions that recognize equitable tolling of the

number bar have not provided a basis for its application where Congress

clearly restricted an alien’s ability to pursue multiple attempts to reopen

proceedings. “None of these decisions explains why we can transpose that

presumption onto the number bar. And it would be especially incongruous

to invent a non-statutory exception to the number bar when Congress showed

that it knows how to write such exceptions when it wants to do so.” Garcia

Morin, 152 F.4th at 634. Congress clearly restricted the ability of an alien to

file multiple motions to reopen, and while the filing deadline for such

motions may be tolled, the statute mandates a limitation on the number of

motions that may be filed.

Therefore, we reject the respondent’s argument that ineffective assistance

of counsel warrants equitable tolling of the number bar for motions to reopen,

and we will deny the respondent’s fourth motion to reopen as number-barred.

The Immigration Judges and the Board have independent discretionary

authority to reopen a proceeding sua sponte at any time. 8 C.F.R.

§§ 1003.2(a), 1003.23(b)(1) (2026). See Matter of J-J-, 21 I&N Dec. 976,

984 (BIA 1997) (holding that the Board’s power to reopen or reconsider

cases sua sponte is limited to exceptional circumstances and is not meant to

cure filing defects or “otherwise circumvent the regulations, where enforcing

them might result in hardship”). Our discretionary sua sponte authority to

reopen is separate and not related to the analysis of whether a motion to

reopen is number-barred. See generally Garcia Morin, 152 F.4th at 634

(observing that “the BIA’s sua sponte authority to reopen removal

proceedings has no bearing on whether courts may exercise our equitable

powers in th[e] context” of equitable tolling).

Although the respondent requests that we invoke our sua sponte authority

to reopen these proceedings, we decline to do so. See Djie, 39 F.4th at 282,

n.1 (cited by Garcia Morin, 152 F.4th at 630 n.2, and noting that the

petitioners “asked the BIA to reopen the proceedings ‘sua sponte’” and

explaining that “[w]e put scare quotes around ‘sua sponte’ because a

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reopening is not sua sponte where the alien requests it”). While the

respondent titles his motion as “sua sponte,” his substantive request seeks a

statutory motion subject to an equitable tolling argument. Even assuming we

recognize this as a properly styled sua sponte motion, we decline to exercise

our sua sponte authority where, based on our review, there is no exceptional

situation on the record before us. See Matter of Yadav, 29 I&N Dec. 438,

439–40 (BIA 2026) (holding that no exceptional situation exists warranting

sua sponte reopening where equities, including a valid marriage to a United

States citizen, were acquired years after the respondent was ordered

removed).

Accordingly, the following order will be entered.

ORDER: The motion to reopen is denied.

NOTICE: If a respondent is subject to a final order of removal and

willfully fails or refuses to depart from the United States pursuant to the

order, to make timely application in good faith for travel or other documents

necessary to depart the United States, or to present himself or herself at the

time and place required for removal by Department of Homeland Security,

or conspires to or takes any action designed to prevent or hamper the

respondent’s departure pursuant to the order of removal, the respondent shall

be subject to a civil monetary penalty of up to $998 for each day the

respondent is in violation. See section 274D of the INA, 8 U.S.C. § 1324d

(2024); 8 C.F.R. § 280.53(b)(14) (2026). Further, any respondent that has

been denied admission to, removed from, or has departed the United States

while an order of exclusion, deportation, or removal is outstanding and

thereafter enters, attempts to enter, or is at any time found in the United States

shall be fined or imprisoned not more than 2 years, or both. See INA

§ 276(a), 8 U.S.C. § 1326(a) (2024).

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