United States Court of Appeals

for the Fifth Circuit ____________

No. 22-60426

____________

Daisy Carolina Perez Yanez; Kenyl Andres Lagos Perez, 

Petitioners,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

______________________________

Appeal from the Board of Immigration Appeals

Agency Nos. A206 778 152, 

A206 778 153

______________________________

Before Duncan and Wilson, Circuit Judges, and Schroeder, District

Judge.*

Per Curiam:†

Daisy Carolina Perez Yanez petitions for review of the Board of 

Immigration Appeals’ (“BIA”) denial of her “Motion to Reopen 

Proceedings.” The BIA determined that her motion to reopen should have 

been filed with the Immigration Judge (“IJ”) rather than with it. Perez Yanez 

_____________________

* United States District Judge for the Eastern District of Texas, sitting by 

designation.

† This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2023

Lyle W. Cayce

Clerk

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now argues that the BIA erred in construing her motion as a motion to reopen 

when it was, in substance, a motion to reconsider that was properly before 

the BIA. Finding no error, we deny the petition.

I.

Perez Yanez and her son, Kenyl Andres Lagos Perez, are aliens from 

Honduras.1 Perez Yanez was served with a notice to appear that charged her

as removable for lacking valid entry documents. She then applied for asylum, 

withholding of removal, and protection under the Convention Against 

Torture, but the IJ ultimately denied her application.

Perez Yanez appealed to the BIA, but the BIA summarily dismissed 

her appeal as untimely. The dismissal informed her that she could file a 

motion to reconsider with the BIA if she wished to challenge the finding that

her appeal was untimely. But it warned that a motion “challenging any other 

finding or seek[ing] to reopen [her] case” would have to be filed with the IJ.

Subsequently, Perez Yanez, through new counsel, filed with the BIA

a pleading entitled “Motion to Reopen Proceedings and Re-issue a New 

Decision with the New Deadline.” In the motion, Perez Yanez argued that 

the late filing was due to her prior attorney’s ineffective assistance, which 

justified reopening “due to those exceptional circumstances.” Perez Yanez 

requested that the BIA “reopen [her] case” and “reissue the [IJ’s] decision”

so that she could have a new deadline to appeal to the BIA. 

The BIA denied the motion because it “raise[d] no issues related to 

the [BIA’s] determination that the appeal was untimely.” It further noted

that her “motion requesting that the [IJ] reissue her decision . . . must be filed 

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1 Because Lagos Perez’s petition is derivative of his mother’s, we refer only to 

Perez Yanez.

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with the Immigration Court.” Perez Yanez timely petitioned this court for 

review of the BIA’s decision.

II.

“[W]e review the BIA’s denial of a motion to reopen or to reconsider 

under the highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 

404 F.3d 295, 303 (5th Cir. 2005). Under this standard, the BIA’s decision 

will be affirmed unless it is “capricious, racially invidious, utterly without 

foundation in the evidence, or otherwise so irrational that it is arbitrary rather 

than the result of any perceptible rational approach.” Nunez v. Sessions, 882 

F.3d 499, 505 (5th Cir. 2018) (quoting Singh v. Gonzales, 436 F.3d 484, 487 

(5th Cir. 2006)).

III.

This petition turns on whether Perez Yanez filed a motion to 

reconsider or a motion to reopen. See 8 C.F.R. § 1003.23(b); see also Pierre v. 

INS, 932 F.2d 418, 421 (5th Cir. 1991), overruled on other grounds by Stone v. 

INS, 514 U.S. 386 (1995) (noting that these motions are “separate and 

distinct motions with different requirements” (quoting Sanchez v. INS, 707 

F.2d 1523, 1529 (D.C. Cir. 1983))). In general, a motion to reconsider “urges 

an adjudicative body to re-evaluate the record evidence only,” Zhao, 404 

F.3d at 301, while a motion to reopen presents new facts and evidence,

Gonzalez Hernandez v. Garland, 9 F.4th 278, 285 (5th Cir. 2021).

Under the BIA’s longstanding “place-of-filing” rule, when the BIA 

dismisses an appeal as untimely without adjudicating the merits, it will only 

entertain motions to reconsider the finding of untimeliness. Motions 

challenging any other finding or requesting reopening must be made to the IJ. 

See In re Lopez, 22 I. & N. Dec. 16, 17 (BIA 1998); In re Mladineo, 14 

I. & N. Dec. 591, 592 (BIA 1974). This rule “ensures that the only body to 

have addressed the merits of a petitioner’s application also adjudicates any 

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potential motion to reopen.” Hernandez v. Holder, 738 F.3d 1099, 1102 (9th 

Cir. 2013).

We determine what a motion is by its substance, not its label. See Zhao,

404 F.3d at 301. Perez Yanez argues that the BIA erred in construing her 

“Motion to Reopen Proceedings and Re-issue a New Decision with the New 

Deadline” as a motion to reopen. Although labeled as a “Motion to 

Reopen,” she claims that it was substantively a motion to reconsider. 

Specifically, she argues that because her motion claimed ineffective 

assistance of counsel as the reason for her untimely filing, she was in fact 

requesting the BIA’s reconsideration of untimeliness.

A review of the motion does not support this conclusion. To begin 

with, the motion requests reopening or characterizes itself as a motion to 

reopen no fewer than five times. It never mentions reconsideration. While 

these labels are not dispositive, it is telling that Perez Yanez characterized her 

motion throughout as one to reopen.

But what is fatal to Perez Yanez’s argument is the type of relief she 

requested. Her motion specifically requested that the BIA “reopen the case” 

and “reissue the [IJ’s] decision with [a] new deadline” to appeal so that she 

could re-appeal to the BIA. Other circuits have consistently held that such a 

request for reissuance is effectively a motion to reopen. See Jahjaga v. Att’y 

Gen., 512 F.3d 80, 82 (3d Cir. 2008) (“We treat a motion to reissue as a 

motion to reopen”); Chen v. Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007) (“A 

motion to reissue is treated as a motion to reopen.”); Lujan-Jimenez v. Lynch, 

643 F. App’x 737, 739 n.2 (10th Cir. 2016) (similar). That is because “the 

case would have to be reopened before the BIA could grant the requested 

relief” of reissuance. Tobeth-Tangang v. Gonzales, 440 F.3d 537, 539 n.2 (1st 

Cir. 2006). In fact, the regulations do not specifically provide for motions to 

reissue, so courts “follow the BIA’s lead and treat the motion as a motion to 

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reopen.” Ibid.; Lujan-Jimenez, 643 F. App’x at 739 n.2. Because Perez Yanez 

requested reissuance of the IJ’s decision, the BIA was within its discretion to 

treat her motion as one to reopen and subsequently dismiss it as improperly 

filed under the place-of-filing rule.2

Further undermining Perez Yanez’s claim is the fact that, if her 

motion had been one to reconsider, it would have been untimely. While there 

is a 90-day window to move to reopen, there is only a 30-day window to move 

to reconsider. See 8 C.F.R. § 1003.23(b). As a motion to reopen, Perez 

Yanez’s motion was timely. But, as a motion to reconsider, it would have 

been filed well beyond the relevant deadline. This supports the BIA’s 

conclusion that the motion was in fact a motion to reopen.

In conclusion, we cannot say that the BIA abused its discretion in 

denying Perez Yanez’s motion under its place-of-filing rule.

IV.

The petition for review is DENIED.

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2 In re Lopez does say that a motion to reconsider can “request[] consideration of 

the reasons for untimeliness” in addition to challenging the finding of untimeliness itself.

22 I. & N. Dec. at 17. But Perez Yanez does not argue that the BIA erred under In re Lopez, 

and she has therefore forfeited any such argument. See Ahmed v. Sessions, 713 Fed. App’x 

308, 309 (5th Cir. 2018) (per curiam) (deeming such an argument abandoned in a similar 

case).

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