In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 20-1459 

ISMAEL HERNANDEZ-ALVAREZ, 

Petitioner, 

v.

WILLIAM P. BARR, 

Attorney General of the United States,

Respondent. 

____________________ 

Petition for Review of an Order of the 

Board of Immigration Appeals.

No. A043-789-540.

____________________ 

ARGUED NOVEMBER 6, 2020 — DECIDED DECEMBER 16, 2020 

____________________ 

Before ROVNER, BRENNAN and ST. EVE, Circuit Judges. 

ST. EVE, Circuit Judge. Mexican citizen Ismael HernandezAlvarez was a permanent resident of the United States when, 

in 2002, he was convicted in Illinois of indecent solicitation of 

a child. The Department of Homeland Security (“DHS”) initiated removal proceedings on the grounds that his conviction 

constituted an aggravated felony. Though Hernandez-Alvarez argued that his solicitation conviction did not qualify as 
2 No. 20-1459

an aggravated felony, an Immigration Judge (“IJ”) and the 

Board of Immigration Appeals (the “Board”) disagreed and 

ordered his removal. He then moved for the Board to reconsider but was removed to Mexico before the Board decided 

his motion. The Board then determined that his removal constituted a withdrawal of his motion to reconsider. 

Fifteen years later, Hernandez-Alvarez moved for the 

Board to reconsider its decision and reopen his removal proceedings in light of two recent Supreme Court decisions: Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), and Pereira 

v. Sessions, 138 S. Ct. 2105 (2018). He argued that his motion 

was timely because it merited equitable tolling; alternatively, 

he requested that the Board invoke its authority to reopen his 

proceedings sua sponte.1 The Board denied his statutory motion to reconsider and reopen, concluding that equitable tolling was not warranted because Hernandez-Alvarez failed to 

show due diligence. It also rejected his argument based on Pereira that the IJ did not have jurisdiction over his removal proceedings and declined to exercise its power to reopen the proceedings sua sponte. Because the Board did not abuse its discretion in denying Hernandez-Alvarez’s statutory motion to 

1 We recognize that “[d]escribing the motion as seeking a ‘sua sponte’

reopening is a common but unfortunate misnomer and even an oxymoron.” Salazar-Marroquin v. Barr, 969 F.3d 814, 816 n.1 (7th Cir. 2020); see also 

Fuller v. Whitaker, 914 F.3d 514, 515 n.1 (7th Cir. 2019) (“[W]hen the Board 

acts in response to a litigant’s request, it is not acting sua sponte.”). Nonetheless, we use the phrase here because it “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” or a party’s right to file one motion to reconsider within 30 days 

of a final agency determination. Salazar-Marroquin, 969 F.3d at 816 n.1. 
No. 20-1459 3 

reconsider and reopen, his petition for review is denied. And 

because the Board did not commit legal error in declining to 

reopen his proceedings sua sponte, we dismiss that aspect of 

the petition for want of jurisdiction.

I. Background

A. Removal Proceedings 

In 2002, when he was 20 years old, Hernandez-Alvarez 

was charged and convicted of indecent solicitation of a child 

in Illinois as part of an undercover operation. He conversed 

in an internet chat room with an adult undercover investigator, whom he believed to be a 15-year-old girl named “Katie.” 

He made plans to meet “Katie” for sex and was arrested the 

next morning en route to meet her. He was convicted under 

720 ILCS 5/11–6(a), which provided: 

A person of the age of 17 years and upwards 

commits the offense of indecent solicitation of a 

child if the person, with the intent that the offense of aggravated criminal sexual assault, 

criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal 

sexual abuse be committed, knowingly solicits a 

child or one whom he or she believes to be a 

child to perform an act of sexual penetration or 

sexual conduct as defined in Section 12–12 of 

this Code.

The statute defined “child” as “a person under 17 years of 

age.” 720 ILCS 5/11–6(b). Hernandez-Alvarez was then

sentenced to 30 months’ probation and six months’ periodic imprisonment. 
4 No. 20-1459

As a result of this conviction, on April 9, 2003, DHS initiated removal proceedings by issuing Hernandez-Alvarez a

notice to appear. It charged him as being removable under 8 

U.S.C. § 1227(a)(2)(A)(iii) on the theory that indecent solicitation of a child constitutes sexual abuse of a minor and so is an 

aggravated felony.2 DHS later added an additional basis for 

removability based on 8 U.S.C. § 1101(a)(43)(U)’s definition of 

“aggravated felony” to include an attempt to commit an offense that constitutes an aggravated felony. 

The issued notice to appear did not include a date and 

time of the initial agency hearing and stated that it would occur on a date and time to be set. On April 18, 2003, the immigration court issued Hernandez-Alvarez a notice of hearing 

informing him that the hearing would take place on April 22, 

2003. 

Hernandez-Alvarez appeared with counsel at the April 22, 

2003 hearing and at a subsequent hearing held on May 8, 2003. 

He moved to terminate his removal proceedings on the 

grounds that his conviction under 720 ILCS 5/11-6 was not an 

aggravated felony. The IJ disagreed and issued a written decision ordering Hernandez-Alvarez’s removal. The IJ relied 

on 8 U.S.C. § 1101(a)(43)(U), which defines “aggravated felony” to include an attempt to commit any substantive offense 

listed in § 1101(a)(43), including the sexual abuse of a minor. 

See § 1101(a)(43)(A). The IJ determined that, regardless of 

whether Hernandez-Alvarez’s conviction could be 

2 The notice to appear alternatively charged Hernandez-Alvarez as 

being removable under 8 U.S.C. § 1227(a)(2)(E)(i) on the theory that indecent solicitation of a minor constitutes child abuse. The IJ did not rule on 

this basis of removability and so we will not discuss it further. 
No. 20-1459 5 

considered “sexual abuse of a minor” under 8 U.S.C. 

§ 1101(a)(43)(A), “his conviction clearly qualifies as an attempt

to commit sexual abuse of a minor” because he intended to 

engage in sexual abuse of a minor and took a substantial step 

towards committing that criminal act. 

Hernandez-Alvarez appealed his removal to the Board. 

On January 9, 2004, the Board adopted the IJ’s rationale and 

denied his appeal. Hernandez-Alvarez then moved for the 

Board to reconsider, but before it could reach his motion, he 

was removed to Mexico. The Board subsequently determined 

that his removal constituted a withdrawal of his motion under 

8 C.F.R. § 1003.2(d) and did not rule on the merits. 

Hernandez-Alvarez filed a petition for review of the 

Board’s decision to uphold his removal, which we denied. 

Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. 2005). He 

argued that his solicitation conviction did not qualify as an 

attempt to commit sexual abuse of a minor because the person 

solicited was an adult investigator rather than a child. Id. at 

765. We disagreed, reasoning that solicitation is “a partially 

completed offense similar to an attempt” and so HernandezAlvarez’s conviction falls within the definition of “sexual 

abuse of a minor.” Id. at 766. Even though his offense did not 

involve an actual minor, we determined that impossibility did 

not preclude Hernandez-Alvarez’s conviction from being 

characterized as an aggravated felony because under both Illinois and federal law, “[t]he impossibility of completing the 

offense attempted is not a defense.” Id. at 766–67 (citation 

omitted). 
6 No. 20-1459

B. Motion to Reopen and Reconsider 

Fifteen years later, on May 3, 2019, Hernandez-Alvarez 

filed a motion to reopen and reconsider with the Board based 

on two recent Supreme Court decisions. In Esquivel-Quintana, 

the Court addressed the question of “whether a conviction 

under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as 

sexual abuse of a minor” under the Immigration and Nationality Act and held that “it does not.” 137 S. Ct. at 1567. Because 

“the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16,” the state statute at 

issue did “not categorically fall within that definition” and so 

“a conviction pursuant to it is not an aggravated felony under 

§ 1101(a)(43)(A).” Id. at 1568. Hernandez-Alvarez argued that 

just like the state statute at issue in Esquivel-Quintana, the Illinois statute he violated encompassed conduct that fell outside 

the generic federal definition of sexual abuse of a minor because it included 16-year-olds in its definition of “child.” See 

720 ILCS 5/11-6(b). Thus, his conviction should not have been 

considered an aggravated felony.

In Pereira, the Supreme Court examined a provision that 

allows nonpermanent residents who have accrued 10 years of 

continuous physical presence in the United States to be eligible for cancellation of their removal. According to the “stoptime rule,” the “period of continuous physical presence is 

‘deemed to end ... when the alien is served a notice to appear.’” 138 S. Ct. at 2109 (quoting 8 U.S.C. § 1229b(d)(1)(A)). 

The Court determined that a notice to appear that failed to 

specify the time or place of the removal proceedings was insufficient to trigger the stop-time rule. Id. at 2110. HernandezAlvarez contended that, because his notice to appear did not 
No. 20-1459 7 

include the time or place, it was defective and so the immigration court lacked jurisdiction to conduct removal proceedings 

in his case. 

Hernandez-Alvarez acknowledged that a motion to reconsider generally must be filed within 30 days of a final administrative order of removal, 8 U.S.C. § 1229a(c)(6)(B), and a motion to reopen generally must be filed within 90 days. 8 U.S.C. 

§ 1229a(c)(7)(C)(i). Nonetheless, Hernandez-Alvarez argued

that the Board should consider his statutory motion to reconsider and reopen timely because equitable tolling of the time 

and numeric limitations was warranted. Alternatively, he 

contended that the Board should invoke its authority to reconsider and reopen his removal proceedings sua sponte because he would suffer manifest injustice if its prior decision 

was allowed to stand.

The Board denied Hernandez-Alvarez’s motion to reconsider and reopen. Regarding his statutory motion to reconsider its 2004 decision, the Board determined that equitable 

tolling was not warranted. The Board acknowledged that Hernandez-Alvarez had submitted a timely motion to reconsider 

in 2004, which it deemed withdrawn after he was removed. In 

2010, we determined that the Board has jurisdiction to consider motions even after an alien has been removed. MarinRodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010). Nonetheless, 

the Board noted that nine years had elapsed between our decision in Marin-Rodriguez and Hernandez-Alvarez’s motion to 

reconsider, and so equitable tolling was not warranted because Hernandez-Alvarez had failed to show he diligently 

pursued his rights. The Board also stated that even if it were 

to reach the merits of Hernandez-Alvarez’s motion to 
8 No. 20-1459

reconsider, it was not convinced of any error in its application 

of the law at that time. 

The Board then considered Hernandez-Alvarez’s motion 

to reopen proceedings based on the Supreme Court’s decisions in Esquivel-Quintana and Pereira. Regarding his argument based on Esquivel-Quintana, the Board declined to equitably toll the filing deadline. It noted that the Court’s decision 

in Esquivel-Quintana had occurred almost two years before 

Hernandez-Alvarez had submitted his motion and he had 

failed to show he exercised due diligence. Regarding his argument based on Pereira, the Board did not reach the issue of 

timeliness. Rather, it concluded our recent decision in OrtizSantiago v. Barr, 924 F.3d 956 (7th Cir. 2019), foreclosed his argument that the defective notice to appear stripped the immigration court of jurisdiction. 

The Board further declined to invoke its sua sponte authority to reopen Hernandez-Alvarez’s removal proceedings. It 

noted that it only sparingly invokes its sua sponte authority 

and views it as a remedy reserved for truly exceptional situations. The Board stated that after considering the circumstances presented and Hernandez-Alvarez’s arguments, it did 

not find the situational so exceptional that it warranted reopening the removal proceedings. Hernandez-Alvarez then 

submitted a timely petition for review of the Board’s decision.

II. Discussion

In his petition, Hernandez-Alvarez challenges the denial 

of his motion to reconsider and reopen on several grounds. 

He argues that the Board should have found his statutory motion to reconsider to be timely because it relates back to his

2004 motion. Alternatively, he asserts that the Board erred 
No. 20-1459 9 

when it determined that his motion to reconsider did not warrant equitable tolling. He further contends that the Board 

erred when it denied his statutory motion to reopen, given 

that equitable tolling was warranted, and the Board did not 

consider whether he was prejudiced by his defective notice to 

appear. Lastly, he argues that the Board committed legal error 

when it declined to invoke its authority to reopen proceedings 

sua sponte. 

A. Statutory Motion to Reconsider 

We first turn to the Board’s denial of Hernandez-Alvarez’s 

statutory motion to reconsider. “A motion to reconsider contends that the original decision was somehow erroneous” and 

“asks [the Board] to revisit its decision in light of ‘additional 

legal arguments, a change of law, or an argument that was 

overlooked earlier.’” Victor v. Holder, 616 F.3d 705, 709 (7th Cir. 

2010) (quoting Patel v. Gonzales, 442 F.3d 1011, 1015 (7th Cir. 

2006)). “[I]n considering such motions, the Board places itself 

‘back in time and consider[s] the case as though a decision in 

the case on the record before [it] had never been entered.’” 

Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007) (quoting In re Cerna, 20 I. & N. Dec. 399, 402 (B.I.A. 1991)). Generally, an alien is limited to one motion to reconsider that must 

be filed within 30 days of the date of entry of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(6)(A), (B). We 

review the Board’s denial for abuse of discretion. Vyloha v. 

Barr, 929 F.3d 812, 815 (7th Cir. 2019). “The Board has abused 

its discretion when its decision was made without a rational 

explanation, inexplicably departed from established policies, 

or rested on an impermissible basis, such as invidious discrimination against a race or particular group.” Id. (internal 

quotation marks and citation omitted).
10 No. 20-1459

Hernandez-Alvarez contends that the Board erred in 

denying his motion to reconsider for two reasons. He asserts

that the Board should have considered his motion timely because the 2019 motion relates back to the still-pending 2004 

motion. He further contends that even if his 2019 motion does 

not relate back to the 2004 motion and is therefore untimely, 

the Board abused its discretion when it determined that equitable tolling was not warranted. We address each of these arguments. 

1. Relation Back

Hernandez-Alvarez contends that, because the Board 

never reached the merits of his 2004 motion to reconsider, his 

2019 motion should be considered timely because it relates 

back to the still-pending 2004 motion. There is no dispute that 

Hernandez-Alvarez timely filed a motion to reconsider in 

2004. Once he was removed, however, the Board determined 

that his motion had been withdrawn under 8 C.F.R. 

§ 1003.2(d) and did not reach the merits. In 2010, we determined that “[a]s a rule about subject-matter jurisdiction, 

§ 1003.2(d) is untenable” and the Immigration and Nationality Act authorizes the Board to reconsider its own decisions 

regardless of whether the alien is still present in the United 

States. Marin-Rodriguez, 612 F.3d at 593–94. Relying on MarinRodriguez, Hernandez-Alvarez argues that the Board did not 

possess the authority to withdraw his 2004 motion to reconsider based on his removal and so that motion remains pending. Thus, according to Hernandez-Alvarez, his 2019 motion 

to reconsider is timely because it relates back to his still-pending 2004 motion. 

Hernandez-Alvarez failed to exhaust his administrative 

remedies because he did not raise this argument before the 
No. 20-1459 11 

Board, and so we need not reach its merits. “A failure to exhaust administrative remedies usually forecloses a petitioner 

from raising an issue in federal court that was not raised before the immigration tribunal.” Duarte-Salagosa v. Holder, 775 

F.3d 841, 846 (7th Cir. 2014). To properly exhaust his remedies, “a petitioner has the burden of raising th[e] legal point 

before the Board.” Garcia-Martinez v. Barr, 921 F.3d 674, 678 

(7th Cir. 2019). Hernandez-Alvarez argued to the Board that 

his 2019 motion was timely because equitable tolling was warranted, not because it related back to his still-pending 2004 

motion. He thus did not adequately exhaust the issue.

Hernandez-Alvarez makes two unpersuasive arguments 

as to why we should find that he exhausted his administrative 

remedies. First, he argues that he raised the issue before the 

Board because his motion cited Marin-Rodriguez and argued 

that the Board had jurisdiction to consider his 2019 motion 

despite his removal from the United States. Yet this brief reference to Marin-Rodriguez occurs in a section labeled “Standards for a Motion to Reconsider and a Motion to Reopen Removal Proceedings”—13 pages before he argues that his motion is timely—and falls far short of arguing that his 2019 motion is timely because it relates back to his still-pending 2004 

motion. Alternatively, Hernandez-Alvarez argues that even if 

he did not raise the issue to the Board, the Board nevertheless 

addressed the status of his 2004 motion to reconsider because 

it referenced Marin-Rodriguez when denying his 2019 motion. 

In support for this argument, Hernandez-Alvarez relies on

two unpublished opinions in which we concluded that “when 

the [Board] sua sponte denies relief on a ground not raised by 

the alien, the failure to raise that argument to the [Board] does 

not preclude our review.” Cisneros-Cornejo v. Holder, 330 F. 

App’x 616, 618 (7th Cir. 2009); see also Mei Mei Liu v. Mukasey, 
12 No. 20-1459

264 F. App’x 530, 533 (7th Cir. 2008). Nonetheless, here the 

Board’s decision did not engage with the precise question of 

whether Marin-Rodriguez means that Hernandez-Alvarez’s 

motion—which was administratively withdrawn six years before we decided Marin-Rodriguez—was still pending or 

whether his motion to reconsider related back to it. 

Accordingly, Hernandez-Alvarez failed to exhaust his 

remedies before the Board for his argument that his 2019 motion is timely because it relates back to his 2004 motion, and 

“consequently he failed to preserve his right to judicial review.” Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008)

2. Equitable Tolling

Hernandez-Alvarez alternatively argues that the Board 

abused its discretion when it determined that his motion to 

reconsider did not warrant equitable tolling. While generally 

an alien has 30 days to file a motion to reconsider, this filing 

deadline is a “non-jurisdictional claim-processing rule[], subject to the doctrine of equitable tolling.” Ramos-Braga v. Sessions, 900 F.3d 871, 876 (7th Cir. 2018) (per curiam). “In order 

to succeed on a claim for equitable tolling, a petitioner must 

demonstrate due diligence.” El-Gazawy v. Holder, 690 F.3d 852, 

859 (7th Cir. 2012). This is satisfied “if the petitioner can show 

that ‘he could not have reasonably been expected to file earlier.’” Yusev v. Sessions, 851 F.3d 763, 767 (7th Cir. 2017) (quoting El-Gazawy, 690 F.3d at 859).

The Board determined that Hernandez-Alvarez’s motion 

to reconsider did not merit equitable tolling because nine 

years elapsed between our decision in Marin-Rodriguez—

which overturned the basis on which the Board had previously deemed his motion withdrawn—and when he filed his 
No. 20-1459 13 

2019 motion. And because he failed to show that he diligently 

pursued his rights during that time, equitable tolling was not 

warranted. According to Hernandez-Alvarez, even though 

our decision in Marin-Rodriguez overturned the basis on 

which the Board had deemed his 2004 motion withdrawn, he 

could not have reasonably been expected to file the motion to 

reconsider before the Court’s 2017 decision in Esquivel-Quintana because caselaw in the Seventh Circuit did not support 

his underlying argument. 

Even assuming that Hernandez-Alvarez could not have 

been reasonably expected to bring his motion prior to the decision in Esquivel-Quintana, he nevertheless fails to show that 

the Board abused its discretion in determining that equitable 

tolling was not warranted. In resolving his motion to reopen, 

the Board determined that Hernandez-Alvarez had failed to 

show that he had exercised due diligence in bringing his motion, given that he did not file his motion for almost two years 

after the Court’s decision in Esquivel-Quintana. On appeal, 

Hernandez-Alvarez concedes it took him and his attorney a 

“long period of time” to prepare and file his motion, but argues that equitable tolling is nonetheless warranted because 

geographic separation and the passage of time made the motion difficult to prepare. Other than these conclusory assertions, Hernandez-Alvarez fails to offer any evidence that he 

diligently pursued his rights in the two years following Esquivel-Quintana. See El-Gazawy, 690 F.3d at 860 (upholding the 

Board’s determination that a petitioner did not demonstrate 

due diligence when he failed “to offer any support for his 

claim that he acted diligently to preserve his rights” during a 

two-year period). We thus cannot conclude that the Board 

abused its discretion in determining that equitable tolling was 

not warranted. 
14 No. 20-1459

B. Statutory Motion to Reopen

We next turn to the Board’s denial of Hernandez-Alvarez’s 

statutory motion to reopen. Unlike motions to reconsider, 

“[m]otions to reopen ask the [Board] to reconsider its earlier 

decision based on ‘facts or evidence not available at the time 

of the original decision.’” Mungongo, 479 F.3d at 534 (quoting 

Patel, 442 F.3d at 1015). While a motion to reopen generally 

must be filed within 90 days of the date of entry of a final administrative order, 8 U.S.C. § 1229a(c)(7)(C)(i), this filing 

deadline can be equitably tolled. Yuan Gao v. Mukasey, 519 

F.3d 376, 377 (7th Cir. 2008). Like motions to reconsider, we 

review the Board’s denial of a motion to reopen for abuse of 

discretion. Patel, 442 F.3d at 1016. 

Hernandez-Alvarez based his motion to reopen on the 

Court’s decisions in Esquivel-Quintana and Pereira. As discussed above, the Board did not abuse its discretion in determining that the motion was untimely and did not merit equitable tolling. Unlike his motion to reopen based on EsquivelQuintana, the Board reached the merits of his Pereira claim, 

and determined that our decision in Ortiz-Santiago foreclosed 

his argument that the immigration court did not have jurisdiction. In Ortiz-Santiago, we held that the requirement that a 

notice to appear include the date and time of the removal proceeding is not jurisdictional in nature and is instead a claimsprocessing rule. 924 F.3d at 965. Relief based on a defective 

notice to appear is available only “for those who make timely 

objections, as well as those whose timing is excusable and 

who can show prejudice.” Id. On appeal, Hernandez-Alvarez 

contends that the Board failed to assess his argument that his 

timing was excusable and he suffered prejudice from the 
No. 20-1459 15 

defective notice. He asserts we must remand the case to the 

Board so it can determine these issues in the first instance.

Even assuming that Hernandez-Alvarez’s late objection is 

excusable, he has not put forth any plausible argument as to 

why he was prejudiced by his defective notice to appear. Hernandez-Alvarez argues that the prejudice to him is “obvious” 

because, under Esquivel-Quintana, he was not convicted of an 

aggravated felony and so was not removable. But this argument misses the mark because Ortiz-Santiago’s prejudice inquiry does not focus on prejudice derived from the removal 

proceedings generally; rather, it focuses specifically on prejudice suffered at the time of the hearing. Accordingly, we look, 

for example, to whether the defects in the notice to appear deprived the alien of the ability to attend or prepare for the hearing, including the ability to secure counsel. See Chen v. Barr, 

960 F.3d 448, 451 (7th Cir. 2020) (determining that respondent 

could not show prejudice because she did not “contend she 

lacked actual knowledge of the time and place for the hearing” and she appeared with counsel); Vidinski v. Barr, 790 F. 

App’x 816, 820 (7th Cir. 2019) (noting that it was “unlikely that 

Vidinski could establish prejudice” given that he received the 

notice to appear, contested the charge of removability, attended the hearing, and was represented by a lawyer); OrtizSantiago, 924 F.3d at 964–65 (“This is not a case in which the 

Notice of Hearing never reached him, or it came so quickly 

that he had trouble preparing for the hearing.”). While Hernandez-Alvarez’s notice to appear initially lacked the date 

and time of the initial agency hearing, he received a notice of 

hearing shortly afterward that included the required information. He secured counsel before attending the hearing, and 

did not argue that he “was prejudiced by the delivery of the 
16 No. 20-1459

statutory information in two documents rather than one,” either to the Board or on appeal. Chen, 960 F.3d at 451. 

Despite his failure to advance any relevant arguments that 

he was prejudiced by the defective notice to appear, Hernandez-Alvarez urges us to remand the case to the Board so that 

it can determine whether he satisfies Ortiz-Santiago’s inquiry

in the first instance. We decline to do so. When a petitioner 

fails to raise any plausible argument as to why he was prejudiced, we have determined that remand is unnecessary. Chen, 

960 F.3d at 451 (declining to remand where the petitioner 

failed to advance a plausible argument that she suffered prejudice); Shojaeddini v. Barr, 781 F. App’x 545, 548 (7th Cir. 2019) 

(denying a petition for review rather than remanding where 

the petitioners did not show, or even attempt to show, “that 

they were prejudiced by having received the time and date of 

their hearing in a separate document”); Ortiz-Santiago, 924 

F.3d at 965 (determining that no “discernable prejudice” occurred without remanding to the Board). Accordingly, remand is unnecessary. 

C. Motion for the Board to Reopen Proceedings Sua Sponte

Finally, we turn to Hernandez-Alvarez’s contention that 

the Board erred by declining to reopen proceedings sua sponte. 

The Board has discretion to reopen a case on its motion at any 

time, 8 C.F.R. § 1003.2(a), but only invokes this power “sparingly, treating it not as a general remedy for any hardships 

created by enforcement of the time and number limits in the 

motions regulations, but as an extraordinary remedy reserved 

for truly exceptional situations.” Matter of G-D-, 22 I. & N. Dec. 

1132, 1133-34 (BIA 1999). Our review of the Board’s denial to 

reopen proceedings sua sponte is very narrow—“[b]ecause no 

law defines what situations will qualify as ‘exceptional,’ we 
No. 20-1459 17 

have held that the merits of these denials are unreviewable.”

Salazar-Marroquin, 969 F.3d at 817. Our review of the Board’s 

denial is limited to assessing “constitutional transgressions 

and other legal errors that the Board may have committed in 

disposing of such a motion.” Fuller, 914 F.3d at 519. Such legal 

errors include whether the Board’s “stated rationale for denying such a motion indicates that it ignored evidence that the 

alien tendered in support of his request” or misapprehended 

the basis for the motion. Id. at 519, 522. 

The Board concluded that Hernandez-Alvarez’s situation 

was not exceptional enough to warrant exercising its authority to reopen his proceedings. On appeal, Hernandez-Alvarez 

asserts that the Board committed legal error in declining to 

reopen his case sua sponte because it stated that even if it were 

to reach the merits of his statutory motion to reconsider, it was 

“not convinced of any error in [its] application of the law at 

that time.” Hernandez-Alvarez interprets this statement to 

mean that the Board determined that Esquivel-Quintana

would not change the outcome in his case, which he argues is 

legally erroneous because Esquivel-Quintana compels the conclusion that his solicitation conviction was not an aggravated 

felony.

Hernandez-Alvarez’s argument misinterprets the Board’s 

decision. A close reading of the decision reveals that the Board

did not reach the question of whether Esquivel-Quintana applies to Hernandez-Alvarez’s conviction. In his motion to the 

Board, Hernandez-Alvarez argued that the Board had erred

when it found that his conviction qualified as an aggravated 

felony. In making this argument, he first argued why EsquivelQuintana compels the conclusion that his conviction should 

not have been considered an aggravated felony. Second, he 
18 No. 20-1459

discussed the prior decisions of the IJ, the Board, and the Seventh Circuit and contended that they were wrong when decided

based on caselaw that existed at that time. He cited to cases 

like People v. Scott, 318 Ill. App. 3d 46 (2000), and Taylor v. 

United States, 495 U.S. 575, 599–601 (1990), and made several 

arguments as to why his conviction should not have been considered an aggravated felony even before the Court decided 

Esquivel-Quintana. It was this latter argument that the Board 

referenced when it stated that it was “not convinced of any 

error in [its] application of the law at that time,” as evidenced

by its citation to the portion of Hernandez-Alvarez’s motion 

that focused on the state of the caselaw in 2004, not the portion 

that discussed Esquivel-Quintana’s application to his case. 

Hernandez-Alvarez’s argument that the Board legally erred 

by determining that Esquivel-Quintana did not apply to his 

case therefore fails, because the Board made no such determination. The Board’s decision does not suggest that it failed to 

consider Hernandez-Alvarez’s arguments concerning the import of Esquivel-Quintana when it determined it did not find 

an exceptional situation warranting the sparing invocation of 

a remedy it reserves for truly exceptional situations. 

Hernandez-Alvarez further argues that the Board erred in 

not invoking its inherent authority to reopen his case because 

Esquivel-Quintana means that the Board got it wrong in 2004, 

and so his case is by definition “exceptional.” Hernandez-Alvarez relies on a concurrence from Matter of J-J-, 21 I. & N. Dec. 

976, 985 (BIA 1997) (Villageliu, Board Member, concurring), 

which stated that “exceptional situations ... must include 

cases where the courts have reversed the underlying basis for 

the Board’s legal conclusions in a case after the 30-day limitation for motions to reconsider has expired.” Apart from this 

concurrence—whose position was not reflected in the 
No. 20-1459 19 

majority—Hernandez-Alvarez has provided no caselaw to 

support his contention that the Board was compelled to exercise its inherent authority to reopen his case. 

The Board’s explanation for why it declined to reopen the 

proceedings sua sponte did not contain or imply any legal error. “Judicial review accordingly is unavailable.” Malukas v. 

Barr, 940 F.3d 968, 971 (7th Cir. 2019). 

III. Conclusion

To the extent that the Board denied the statutory motion 

to reconsider and reopen, the petition for review is denied. To 

the extent that the Board declined to reopen the proceedings 

sua sponte, the petition for review is dismissed for want of jurisdiction.