In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 20-1720 

VICTOR MEJIA-PADILLA, 

Petitioner, 

v.

MERRICK B. GARLAND, 

Attorney General of the United States, 

Respondent. 

____________________ 

Petition for Review of an Order

of the Board of Immigration Appeals. 

No. A200-558-095

____________________ 

ARGUED DECEMBER 2, 2020 — DECIDED JUNE 29, 2021 

____________________ 

Before EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges. 

ROVNER, Circuit Judge. Petitioner Victor Mejia-Padilla 

(“Mejia”) seeks review of an order of the Board of Immigration Appeals sustaining the denial of his statutory motion to 

reopen his deportation proceeding, which he filed more than 

six years after that proceeding closed. Mejia sought reopening 

on the ground that the notice to appear that initiated his deportation proceeding was defective under Pereira v. Sessions, 
2 No. 20-1720 

138 S. Ct. 2105 (2018), with the result that he continued to accrue time in the United States toward the 10-year threshold 

for seeking cancellation of removal and is now eligible to seek 

such relief. Because Mejia forfeited any objection to the deficiency in the notice to appear by not timely raising it in the 

removal proceeding and has not shown cause for forfeiture 

nor prejudice resulting from the defect in the notice, we deny 

the petition for review. 

I.

Mejia, a native and citizen of Mexico, entered the U.S. 

without inspection in 2005 and has lived here continuously 

since that time. He is married to a Mexican national who like

him has no legal status in the U.S.; together, they have two 

children who were born here and are thus U.S. citizens. In 

2011, he was placed in removal proceedings. The initial notice 

to appear that was served on Mejia did not include the date 

and time of the initial immigration hearing and thus did not 

comply with the governing statute, 8 U.S.C. § 1229(a)(1)(G)(i); 

Pereira, 138 S. Ct. 2105. As was typical prior to the Pereira decision,1 a follow-up notice of hearing filled in that gap and 

Mejia appeared pro se for his initial hearing and all subsequent 

hearings. In March 2012, an immigration judge sustained the 

charge of his inadmissibility, granted Mejia voluntary departure to Mexico—the only relief for which he was eligible at 

that time—gave him until July 19, 2012, to depart the United 

1 In Pereira, the Court noted that “the Department of Homeland Security (DHS), at least in recent years, almost always serves noncitizens with 

notices that fail to specify the time, place, or date of initial removal hearings whenever the agency deems it impracticable to include such information.” 138 S. Ct. at 2811.
No. 20-1720 3

States, and alternatively ordered him removed in the event he 

did not depart the country voluntarily by that date. Both parties waived any appeal. As it turned out, Mejia did not depart 

the U.S. and, although he became removable as of July 19, 

2012, ICE’s Chicago Enforcement and Removal Office instead

placed him under an order of supervision. Mejia has complied 

with the terms of that order and has remained in the U.S. since 

that time.

In June 2018, the Supreme Court held in Pereira that a notice to appear which fails to specify the time and place at 

which a removal proceeding will take place, as expressly required by the governing statute, 8 U.S.C. § 1229(a)(1)(G)(i), is 

insufficient to trigger the “stop-time” rule ending a non-citizen’s period of continuous presence in the United States, 

8 U.S.C. § 1229b(d)(1)(A). The length of time a non-citizen has 

been continuously present in this country has a direct bearing 

on his ability to seek relief from deportation. In particular, an 

undocumented person like Mejia must have accrued 10 years 

of continuous presence in this country in order to become eligible for cancellation of removal, a form of discretionary relief available to a non-permanent resident who is of good 

moral character, does not have a specified criminal history, 

and can show that his removal from the U.S. would impose 

an “exceptional and extremely unusual hardship” to a 

spouse, parent, or child who is either a U.S. citizen or lawful 

permanent resident. § 1229b(b)(1). 

Within 30 days after the Supreme Court decided Pereira, 

Mejia filed with the immigration court what he styled as a 

motion to reconsider, see 8 U.S.C. §1229a(c)(6), but which also 

sought to reopen the removal proceeding, see 8 U.S.C. 

§ 1229a(c)(7). The reconsideration portion of the motion 
4 No. 20-1720 

asserted that in view of the defect in the notice to appear issued to Mejia, jurisdiction had never vested in the immigration court. Mejia therefore asked the court to reconsider its removal order and terminate the removal proceeding. With respect to reopening, Mejia noted that because the defective notice to appear did not trigger the stop-time rule, he had now 

accrued the ten years of continuous presence in the United 

States necessary to seek cancellation of removal. He asked the 

court to reopen the removal proceeding for that purpose, and 

he submitted evidence with his motion supporting his request.2 Anticipating that the court might deem his dual requests for reconsideration and reopening untimely, as they 

were filed years after his removal was ordered, he argued that 

the time limits on such motions (30 days for motions to reconsider and 90 days for motions to reopen) should be equitably 

tolled in light of the sea change that Pereira had effected in the 

case law as to notices to appear. In the alternative, Mejia asked 

the court to exercise its authority to, at any time, sua sponte 

reconsider or reopen the removal proceeding. See 8 C.F.R. 

§ 1003.23(b)(1); Matter of J–J–, 21 I. & N. Dec. 976, 984 (B.I.A. 

1997). 

Shortly after Mejia filed his motion, the Board of Immigration Appeals held in Matter of Bermudez-Cota, 27 I. & N. Dec. 

441, 447 (B.I.A. 2018), that the required components of a notice 

to appear need not be set forth in a single document, and so 

long as a second notice fills in the details as to the time and 

place of a removal proceeding that were missing from the 

2 “Unlike motions to reconsider, motions to reopen ask the Board to 

reconsider its earlier decision based on facts or evidence not available at 

the time of the original decision.” Hernandez-Alvarez v. Barr, 982 F.3d 1088, 

1096 (7th Cir. 2020) (cleaned up).
No. 20-1720 5

initial notice to appear (as was true in Mejia’s case), the two 

documents may, taken together, satisfy the statute (and thus 

legitimately convene a removal proceeding). 

The immigration judge denied Mejia’s motion to reconsider and reopen on the basis of Bermudez-Cota. In a one-line 

order, the judge noted that Mejia had not addressed the BIA’s 

decision in that case. 

Mejia then filed a second motion to reconsider, this time 

addressing the Board’s decision in Bermudez-Cota and asking 

the immigration judge to rethink her adverse ruling on his 

underlying motion to reconsider or reopen the removal proceeding. 

The immigration judge denied Mejia’s request, indicating 

that he had not meaningfully distinguished Bermudez-Cota. 

Mejia appealed the denial of his motion to reconsider or reopen the removal proceeding to the BIA.

The Board dismissed Mejia’s appeal. The Board in the first 

instance noted that Mejia’s (second) motion to reconsider was 

barred both in time (it was filed more than 30 days after he 

was ordered removed) and number (the statute allows only 

one motion to reconsider, but Mejia had filed two, the second 

of which addressed the immigration judge’s reliance on Bermudez-Cota). As to the merits of the motion, the Board, citing 

a line of this court’s post-Pereira cases beginning with OrtizSantiago v. Barr, 924 F.3d 956, 963–64 (7th Cir. 2019), noted that 

the statutory requirement that a notice to appear include the 

date, time, place of a removal hearing is not a jurisdictional 

requirement but rather a claim-processing rule that must be 

raised in a timely manner in order to warrant dismissal of the 

proceeding. “[Mejia] does not claim that he made a timely 
6 No. 20-1720 

objection in this case nor has he shown any prejudice from the 

absent information in the NTA, which was cured in a timely 

manner.” A.R. 4. The Board also pointed out that Mejia had 

not yet acquired 10 years of continuous presence in the United 

States when the immigration judge closed the removal proceeding in 2012. Finally, the Board was not persuaded that sua 

sponte reopening of Mejia’s case was warranted. “The accrual 

of additional equities while the respondent remained in the 

United States following the expiration of his voluntary departure period [which presumably included the fact that Mejia

had now met the 10-year eligibility threshold for cancellation 

of removal] does not constitute an exceptional circumstance 

which would merit sua sponte reopening.” A.R. 4. 

II.

Mejia’s petition for review of the Board’s decision is focused on his request to reopen the removal proceeding so that 

he could pursue cancellation of removal. Mejia does not challenge the Board’s rejection of his request for reconsideration, 

which was premised on the notion that the omissions in the 

notice to appear deprived the immigration court of jurisdiction over the removal proceeding. As the Board correctly recognized, and as our discussion below elucidates, our post-Pereira cases foreclose that line of argument. So Mejia is left to 

argue that the immigration judge, and in turn the Board, erred 

in deciding that he is not entitled to reopening of the proceeding in order to pursue cancellation of removal, now that he 

has met the eligibility threshold for seeking such relief. In this 

respect, Mejia does not challenge the Board’s decision insofar 

as it concerned sua sponte reopening, a decision that was rendered on the merits of Mejia’s request and is beyond our purview to review. See Fuller v. Whitaker, 914 F.3d 514, 519 (7th 
No. 20-1720 7

Cir. 2019). Rather, he challenges the Board’s rejection of his 

statutory motion to reopen, which the Board did not explicitly 

address but which the immigration judge rejected on the 

strength of the Board’s decision in Bermudez-Cota. 

As an initial matter, we may take it as a given that Mejia is 

now eligible to seek cancellation of removal. He has lived in 

this country without interruption since he entered without inspection in 2005. Had the notice to appear issued in 2011 contained the date and time of the initial hearing along with all 

of the other statutorily required information, that notice 

would have triggered the stop-time rule and left Mejia short 

of the 10 years’ presence necessary for him to seek cancellation of removal. But the notice did not include the date and 

time of the hearing, and Pereira makes plain that it was therefore insufficient to stop the clock on Mejia’s cognizable presence in the United States. The Board’s decision in BermudezCota posited that a follow-up notice including date and time 

information can nonetheless cure the problem and trigger the 

stop-time rule, but the Supreme Court’s more recent decision 

in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), scotches that 

notion.3 

Nonetheless, Mejia faces two insurmountable obstacles to 

reopening: the untimeliness of his motion to reopen, and his 

forfeiture of the defect in the notice to appear. Mejia was required to file any statutory motion to reopen within 90 days 

after he was ordered removed. 8 U.S.C. § 1229a(c)(7)(C)(i); 

3 This circuit never endorsed the Board’s rationale in Bermudez-Cota. 

See Ortiz-Santiago, 924 F.3d at 962 (“It appears to us that Bermudez-Cota

brushed too quickly over the Supreme Court’s rationale in Pereira and 

tracked the dissenting opinion rather than the majority.”).
8 No. 20-1720 

8 C.F.R. § 1003.23(b)(1). His motion invoking the Supreme 

Court’s 2018 decision in Pereira was filed six years after that 

deadline. Mejia argues here as he did before the immigration 

judge and the Board that the 90-day time deadline should be 

equitably tolled. He reasons that Pereira worked a fundamental change in the jurisprudence concerning incomplete notices 

to appear: Prior to Pereira, this circuit, like most others, had 

held that omissions in a notice to appear could be cured by a 

follow-up notice of hearing so that the clock stopped on an 

alien’s continuous presence in the United States and his eligibility for cancellation of removal. See Dababneh v. Gonzales, 471 

F.3d 806, 809–10 (7th Cir. 2006). Pereira cleared away that entrenched line of precedent and, in Mejia’s view, opened the 

door for the first time to the argument he now pursues in favor of reopening. But our post-Pereira cases make clear to the 

contrary that such a defect in the notice to appear was always 

evident as a matter of what the statute’s plain language required, and consequently nothing prevented Mejia from raising that defect in 2012. In the language of these cases, Mejia 

forfeited his objection to the faulty notice by not timely raising 

it in the removal proceeding, and he is precluded from relying 

on the defective notice now in order to pursue cancellation of 

removal in a reopened removal proceeding unless he can 

demonstrate cause and prejudice. These cases also make plain 

why Mejia cannot rely on equitable tolling to excuse the lateness of his motion to reopen. 

In Ortiz-Santiago v. Barr, supra, 924 F.3d 956, for example,

the petitioner argued that because the notice to appear originally sent to him lacked the requisite time and date information, subject matter jurisdiction never vested in the immigration court and he was never properly placed in removal 

proceedings. This court concluded that the statutory 
No. 20-1720 9

requirement that a notice to appear include the hearing’s date, 

time, and place is not a jurisdictional requirement—such that 

it can be raised at any time—but rather is a claim-processing 

rule that, although it may support dismissal of a proceeding, 

can be forfeited if not raised in a timely manner. Id. at 963–64. 

The court recognized that until Pereira, an objection based on 

missing information in the original notice would have been 

deemed meritless based on Dababneh (and similar holdings in 

most other circuits). Id. at 964. But by the time of Ortiz-Santiago’s removal hearing in 2016, the Third Circuit had parted 

ways with this circuit. Thus, nothing prevented Ortiz-Santiago from invoking the clear text of the statute and the Third 

Circuit’s decision in contesting the validity of his notice to appear. Id. Consequently, he had forfeited any objection based 

on any defect in the notice. Id. Moreover, there was no evidence he was prejudiced in terms of his ability to appear and 

respond to the notice and contest his removal. Id. at 964–65. 

Had he sought dismissal of the removal proceeding in a 

timely manner based on the defect in the notice to appear, a 

new notice correcting the defect could have been issued and 

the case would have proceeded in the normal course. Id.

Similarly, in United States v. Manriquez-Alvarado, 953 F.3d 

511 (7th Cir. 2020), the defendant in a 2018 illegal re-entry 

prosecution sought to collaterally attack the removal order 

that formed the predicate for his prosecution on the ground 

that the original notice to appear in his 2008 removal proceeding did not include a date for his first hearing, rendering the 

entire proceeding and the order of removal invalid. The ability to attack the removal order collaterally depended in part 

on him showing that there was no available remedy in 2008

for the defect in the notice to appear. Id. at 513. Manriqez-Alvarado argued that it would have been “futile” for him to 
10 No. 20-1720 

challenge the notice in 2008 (whether before the immigration 

judge or on appeal to the Board), given that the Pereira decision was 10 years off and existing circuit precedent was 

squarely against him. But we explained that what mattered 

was whether an objection was available to him in 2008, not 

whether such an objection would have been futile. Id. at 513–

14. And an objection to the sufficiency of the notice to appear 

indeed was available to Manriquez-Alvarado: “Pereira interpreted a statute that long predates 2008. Manriquez-Alvarado 

was free to rely on that statute.” Id. at 513. Had he made such 

an argument, his case, rather than Pereira’s, might have been 

the one that the Supreme Court took to set the favorable precedent. Id. More likely, the agency might simply have corrected the problem by issuing a new notice with the requisite 

information. Id. So in no sense was relief “unavailable” to 

Manriquez-Alvarado in 2008, such that he could be excused 

for not seeking relief for the defective notice in a timely manner and permitted to instead pursue such relief collaterally. 

Id. at 513–14. 

Finally, in circumstances closer to those presented here, 

this court concluded that Pereira did not permit an alien to reopen her removal proceeding in order to belatedly seek cancellation of removal. Chen v. Barr, 960 F.3d 448 (7th Cir. 2020). 

Chen was placed in removal proceedings by way of a defective notice to appear in 2010. She did not challenge the defect 

in the notice, nor did she seek cancellation of removal, although as a factual matter she had been present in the U.S. for 

10 continuous years by the time her protracted removal proceeding came to a close: her removal order became final in 

2017, before Pereira was decided. After Pereira was decided 

the following year, Chen sought to reopen the proceeding, arguing that the defect in the notice to appear, as laid bare by 
No. 20-1720 11

Pereira, had allowed the clock on her presence in the U.S. to 

keep running, such that she was now able to seek cancellation 

of removal. In weighing Chen’s request, we asked “whether 

Chen made a timely objection [to the defective notice] or can 

show excusable delay and prejudice.” Id. at 451. “The answer 

to all three is ‘no.’” Id. We noted that notwithstanding adverse 

circuit precedent in 2010 as to the validity of the notice to appear, Chen nonetheless could have challenged the notice

based on the language of the statute. “[A]dverse precedent in 

a local court of appeals does not excuse omitting a legal argument, unless it is one a knowledgeable lawyer could not have 

imagined.” Id. (citing Bousley v. U.S., 523 U.S. 614, 622-23, 118 

S. Ct. 1604, 1611 (1998)). Chen therefore lacked cause for her 

failure to make a timely challenge to the defective notice. Id.

Chen could not show prejudice either. She appeared for the 

original hearing (and thus could not show that she lacked 

knowledge as to the time and place of the hearing); moreover, 

had she objected to the adequacy of the notice at the time, “the 

agency could have cured the problem on the spot, and the 

hearing would have continued.” Id. at 451. “Chen has never 

argued that she was prejudiced by the delivery of the statutory information in two documents rather than one. (A cure 

in December 2011 [when the first hearing took place] would 

have stopped time before Chen reached 10 years’ presence.)” 

Id. We went on to point out that if anything, it was the agency 

that would be prejudiced by allowing Chen to seek relief at 

this juncture, when the notice defect she was relying upon 

was one that the agency could have fixed had it been raised 

before Chen acquired the 10 years of continuous residence that 

would render her eligible for cancellation of removal. Id. at 

452. 
12 No. 20-1720 

These cases make clear that a flaw in the original notice to 

appear is one that can be forfeited, and Mejia did forfeit it by 

not making a timely objection to the notice at the outset of the 

removal proceeding. Although Pereira obviously had not yet 

been decided and existing circuit precedent was against Mejia 

in 2011 and 2012, the plain language of the statute was in his 

favor and on that basis he could have challenged the sufficiency of the notice to appear by asking the judge to dismiss 

the proceeding. He did not, and he has not shown cause that 

would excuse this failure. Nor has Mejia shown that he was 

prejudiced by the defect in the notice. As we noted in Hernandez-Alvarez v. Barr, “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.” 982 F.2d 1088, 1096 (7th Cir. 2020). 

“Otherwise,” as we added in Meraz-Saucedo v. Rosen, “any petitioner could avoid forfeiture by arguing that he was prejudiced by the loss of a substantive argument.” 986 F.3d 676, 684 

(7th Cir. 2021). Here, Mejia was apprised of the date and time 

of the hearing in a subsequent notice of hearing and he appeared for the initial hearing as well as subsequent court 

dates. See id. (collecting cases finding lack of prejudice in similar circumstances). And had Mejia raised the defect at the 

time, the government could have corrected the problem, 

stopped the clock on Mejia’s continuous presence in this 

country, and eliminated any doubt about whether Mejia is 

now eligible to seek cancellation of removal. In short, Mejia 

forfeited the objection and has demonstrated neither an excuse for the forfeiture nor prejudice from the underlying error. 

Mejia argues that the claim-processing rationale of OrtizSantiago and follow-on cases ought not to apply to the stop-
No. 20-1720 13

time rule, which rule has a direct bearing on his ability to seek 

cancellation of removal—cancellation being a substantive rather than a procedural right. We squarely rejected this argument in Meraz-Saucedo, 986 F.3d at 684 (“This argument is 

simply an attempt to dodge the claims-processing rationale 

articulated in Ortiz-Santiago and rehash [the petitioner’s] prejudice arguments.”).

Mejia has also attempted to distinguish Chen on the 

ground that unlike Chen, who reached the 10-year eligibility 

threshold for cancellation of removal while her removal proceeding was still pending, his own removal proceeding began 

and ended long before he reached the 10-year mark. This is a 

distinction without a difference. Chen may have had more of 

an incentive to pursue any argument that might have opened 

the door to cancellation of removal once she reached the 10-

year mark, but the point of the court’s holding is that she 

never timely challenged the defect in the notice to appear, period. See 960 F.3d at 451, 452 (noting that Chen could have 

raised the defect in the notice to appear in the years before she 

attained eligibility for cancellation of removal). That is just as 

true with respect to Mejia was it was with Chen. Mejia had 

every reason in 2011 and 2012 to challenge the validity of the 

removal proceeding commenced by the faulty notice to appear. For that matter, although he was not yet eligible to seek 

cancellation of removal, he had a comparable incentive to 

keep the clock running on his continuous presence in the 

United States so that he might become eligible. And just as in 

Chen, had Mejia made a timely challenge to the notice, the 

government could have immediately corrected the problem 

and removed all doubt as to whether the clock on Mejia’s 

presence in the U.S. stopped running. 
14 No. 20-1720 

Mejia also emphasizes that there is distinction between the 

forfeiture of an objection and the equitable tolling of a time 

limitation, and he urges us not to read Chen so as to foreclose 

the case for equitable tolling that he makes in order to justify 

the timing of his motion to reopen. We take his point that 

these are distinct legal constructs. But in relevant part, both 

ask whether a petitioner has slept on his rights. As Mejia himself acknowledges, a successful argument for equitable tolling 

would require him to show that he has been diligent in the 

pursuit of his rights but that an extraordinary circumstance 

blocked his path. Mejia Br. 15 (citing Holland v. Florida, 560 

U.S. 631, 649, 130 S. Ct. 2549, 2562 (2010)). The rationale of our 

post-Pereira cases makes clear why Mejia was not diligent and 

also why the timing of the Pereira decision vis-à-vis prior adverse circuit precedent does not amount to an extraordinary 

circumstance that prevented him from making a timely challenge to the deficient notice to appear. The statutory argument as to the deficiency was available to Mejia in 2011 and 

2012, while his removal proceeding was pending, as it was to 

every other alien served with such a defective notice in the 

years leading up to Pereira, but he did not raise it. See HerreraGarcia v. Barr, 918 F.3d 558, 563 (7th Cir. 2019); see also Chen, 

960 F.3d at 451.4

4 Given Mejia’s want of diligence in this respect, we have no occasion 

to consider, as a countervailing equitable circumstance, the government’s 

decision to allow him to remain in the U.S. for years despite being subject 

to a removal order. The government might have a hard time arguing that 

it would be prejudiced if Mejia were permitted to pursue cancellation of 

removal now, given that it chose to let Mejia remain in the U.S. under supervision. See Matter of Peña-Diaz, 20 I. & N. Dec. 841, 846 (BIA 1994). But

that argument does not excuse Mejia’s own lack of diligence in challenging the sufficiency of the notice to appear.
No. 20-1720 15

III.

An objection to the defect in the notice to appear served on 

Mejia was one that was available to him from the outset of his 

removal proceeding based on the plain language of the statute. He forfeited the objection by not bringing it to the attention of the immigration judge at that time. He has not shown 

cause for the forfeiture, nor has he shown that he was prejudiced by the defect in the notice. He is thus foreclosed from 

relying on that defect now to ask the Board to reopen the removal proceeding years after the proceeding closed in order 

to seek cancellation of removal, for which he has since become 

eligible. We reject Mejia’s argument for equitable tolling of the 

deadlines for pursing reopening of his removal proceeding on 

the same basis. Mejia’s petition for review of the Board of Immigration’s order sustaining the denial of his motion to reopen is DENIED.