NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-2249

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MIN DONG WU,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

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On Petition for Review of an

Order of the Board of Immigration Appeals

(Agency No. A094-941-414)

Immigration Judge: Jeffrey L. Romig

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

April 8, 2024

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Before: CHAGARES, Chief Judge, PORTER and SCIRICA, Circuit Judges

(Filed April 10, 2024)

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OPINION*

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* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not 

constitute binding precedent.
CHAGARES, Chief Judge. 

Min Dong Wu (“Wu”) petitions this Court for review of a Board of Immigration 

Appeals (“BIA”) order denying his motion to reopen. For the reasons that follow, we 

will dismiss in part and deny in part the petition for review.

I.1

Wu, a native and citizen of China, has been in the United States without 

permission since 2006. He was served with a Notice to Appear (“NTA”) in 2007. He 

conceded removability before an Immigration Judge (“IJ”) and applied for asylum, 

withholding of removal, and protection under the Convention Against Torture on account 

of religious persecution. The IJ denied relief and ordered his removal. The BIA

dismissed his appeal. 

Wu remained in this country; he had a United States citizen son in October 2011

and married a legal permanent resident in 2014. He filed a motion to reopen with the 

BIA in 2018, arguing under Pereira v. Sessions, 585 U.S. 198 (2018), that, because the 

NTA initiating his case failed to specify a date and time for the removal hearing, the 

immigration court lacked jurisdiction over him. The BIA denied the motion. 

Wu filed a second motion to reopen on July 23, 2021. He sought permission to 

return to the IJ to apply for cancellation of removal, claiming he is statutorily eligible for 

that relief because, among other things, his removal would cause exceptional and 

extremely unusual hardship to his wife and son, and he has been physically present in this 

1 Because we write for the parties, we recite only those facts pertinent to our decision.
3

country for more than ten years. See 8 U.S.C. § 1229b(b)(1). He argued that he became 

eligible for cancellation of removal when the Supreme Court decided Niz-Chavez v. 

Garland, 593 U.S. 155, 161 (2021), and that the case marked a change in the law that 

warranted reopening his case. Wu also asked the BIA to grant sua sponte reopening for 

the same reasons. The BIA denied Wu’s motion. This timely petition for review 

followed. 

II.2

A.

Motions to reopen are disfavored and are granted only under compelling 

circumstances. Darby v. Att’y Gen., 1 F.4th 151, 159 (3d Cir. 2021). We review the 

BIA’s denial of a motion to reopen for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 

166, 174 (3d Cir. 2002). The decision will be reversed only if it is arbitrary, irrational, or 

contrary to law. Id. 

The regulations generally permit one motion to reopen, which must be filed within 

90 days of the removal order. See 8 C.F.R. § 1003.2(c)(2).3 Wu acknowledges that the

motion to reopen was his second and was filed more than 90 days after his removal order

but claims the BIA should have equitably tolled the limitations because he filed the

motion “within 90 days of discovering . . . [his] new eligibility for cancellation of 

2 The BIA had jurisdiction over the motion to reopen under 8 C.F.R. § 1003.2. We 

generally have jurisdiction to review the denial of a motion to reopen under 8 U.S.C. 

§ 1252(a)(1). See Khan v. Att’y Gen., 691 F.3d 488, 492 (3d Cir. 2012). 

3 The time and number limitations do not apply in certain circumstances, such as a 

motion to reopen based on changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii).

Wu does not claim that such circumstances apply here.
4

removal in light of the Niz-Chavez decision.” Wu Br. 12.

Wu is correct that limitations on filing a motion to reopen may be subject to 

equitable tolling. See Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011) (“The time 

limit for filing a motion to reopen is subject to equitable tolling, and perhaps the 

numerical limit is as well.”). Equitable tolling is only available, however, if Wu pursued 

his rights diligently and extraordinary circumstances prevented him from filing sooner. 

See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Wu has demonstrated neither.

The BIA correctly observed that Wu was statutorily ineligible for cancellation of 

removal during his original immigration proceeding. At that time, he did not have any 

qualifying relatives and had only been in the United States a short time. A final removal 

order was entered and, with the passage of time, Wu later acquired additional years of 

physical presence in the United States and qualifying family members. The BIA 

determined that these subsequent events did not constitute “extraordinary circumstances” 

for purposes of equitable tolling. This was not an abuse of discretion. Wu fails to cite 

any binding case holding that a new purported entitlement to relief arising after entry of a 

final removal order requires equitable tolling of the period for reopening. 

Wu also was not diligent in pursuing his motion, as he could have presented his 

argument about achieving ten years of physical presence in the United States (and thus

his purported eligibility for cancellation of removal) well before July 2021. Wu was 

served with an NTA in 2007. Under the “stop-time rule,” service of an NTA generally 

ends the accrual of an individual’s physical presence in this country for purposes of 

cancellation of removal. See Nkomo v. Att’y Gen., 930 F.3d 129, 132 (3d Cir. 2019). 
5

Wu claims that his NTA was defective because it omitted the time and date of his hearing

and therefore did not trigger the stop-time rule in 2007, so he continued to accrue “credit” 

for his physical presence in the United Sates. He argues he first learned of this claim in

April 2021, when the Supreme Court decided Niz-Chavez. Yet the claim was available 

prior to Niz-Chavez.

The Supreme Court held in 2018 that a defective NTA does not trigger the stoptime rule. See Pereira, 585 U.S. at 202. Two years later, applying Pereira, we held that a 

defective NTA cannot be cured by a subsequent notice providing the time and date of the 

hearing, so the subsequent notice also does not trigger the stop-time rule. Guadalupe v. 

Att’y Gen., 951 F.3d 161, 164 (3d Cir. 2020). The Supreme Court’s Niz-Chavez decision

the following year reached the same conclusion as Guadalupe. 593 U.S. at 161. Wu thus 

could have argued that the stop-time rule does not apply to him based on Guadalupe in 

2020, if not in 2018 when the Supreme Court decided Pereira, or perhaps even sooner. 

See Chavez-Chilel v. Att’y Gen., 20 F.4th 138, 144 n.7 (3d Cir. 2021) (observing that 

arguments about defective NTAs have been available since before Pereira). 

Wu need not have waited for Niz-Chavez to claim that the stop-time rule does not 

apply to him, so it is clear as a matter of law that his decision to delay filing his motion 

until July 2021 does not reflect the diligence necessary for equitable tolling. See

Mahmood v. Gonzales, 427 F.3d 248, 253 (3d Cir. 2005). The BIA thus did not abuse its 

discretion in declining to equitably toll the limitations for his second, untimely motion to 
6

reopen.4

B.

Because Wu’s motion was time- and number-barred and not subject to equitable 

tolling, his remaining option for reopening was sua sponte relief under 8 C.F.R. 

§ 1003.2(a), which grants the BIA discretion to reopen a case at any time.

5

 We lack 

jurisdiction to review a discretionary denial of sua sponte reopening. Pllumi v. Att’y 

Gen., 642 F.3d 155, 159 (3d Cir. 2011). We do, however, have jurisdiction to consider 

whether the BIA misperceived the relevant law. Id.

Wu contends that the BIA failed to apply the proper “legal background” for 

assessing exceptional circumstances. Wu Br. 14. He further contends that Niz-Chavez is 

a fundamental change in law warranting reopening. Yet the BIA considered Niz-Chavez

and evaluated whether Wu presented exceptional circumstances, and Wu has not 

identified any “false legal premise” on which the BIA relied. Pllumi, 642 F.3d at 160. 

We are unpersuaded that Wu has invoked our jurisdiction by raising a colorable claim 

that the BIA misperceived the relevant law. See Pareja v. Att’y Gen., 615 F.3d 180, 186 

(3d Cir. 2010) (observing that a legal claim is not colorable if it is immaterial and made 

solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous). 

4 Wu’s motion was also procedurally defective because it was not accompanied by an 

application for cancellation of removal. See 8 C.F.R. § 1003.2(c)(1) (“A motion to 

reopen proceedings for the purpose of submitting an application for relief must be 

accompanied by the appropriate application for relief and all supporting 

documentation.”).

5 Sua sponte reopening is a misnomer because a motion is required; it is actually a request 

to the BIA to waive the procedural requirements for a motion to reopen and exercise its 

discretion to reopen the proceeding. See Darby, 1 F.4th at 164 n.3.
7

We therefore will dismiss his challenge to the denial of sua sponte reopening for lack of 

jurisdiction.

III.

For the foregoing reasons, we will dismiss the petition for review in part for lack 

of jurisdiction to the extent it challenges the BIA’s denial of sua sponte reopening and

will deny it in remaining part.