United States Court of Appeals

for the Fifth Circuit

No. 19-60827

Karla Yadira Lara Canales, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

Petition for Review of an Order of the 

Board of Immigration Appeals 

BIA No. A099 528 344 

Before Jolly, Dennis, and Higginson, Circuit Judges.

E. Grady Jolly, Circuit Judge:*

This appeal arises from the Board of Immigration Appeals’ (BIA) 

denial of Karla Yadira Lara Canales’s motion to reopen her removal 

proceedings. The BIA denied her motion to reopen as untimely, leaving the 

order of removal in place. We now VACATE the BIA’s denial of Lara 

Canales’s motion to reopen and REMAND so that the BIA may properly 

consider whether Lara Canales is entitled to equitable tolling. 

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

United States Court of Appeals

Fifth Circuit

FILED

January 19, 2023

Lyle W. Cayce

Clerk

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I.

The Attorney General may allow otherwise-removable aliens to 

remain if they have accrued 10 years of continuous physical presence in the 

United States—a discretionary form of relief otherwise known as 

“cancellation of removal.” Under the statutory “stop-time rule,” the period 

of continuous presence terminates when either of two events occurs: (1) an 

alien is served with a notice to appear (NTA), or (2) an alien commits an 

enumerated criminal offense. 8 U.S.C. § 1229b(d)(1).

If the BIA orders an alien removed, that alien may file a motion to 

reopen the removal proceedings. This form of procedural relief allows aliens 

to ask the BIA to reconsider its removal decision “in light of newly 

discovered evidence or a change in circumstances since the hearing.” LugoResendez v. Lynch, 831 F.3d 337, 339 (5th Cir. 2016) (quoting Dada v. 

Mukasey, 554 U.S. 1, 12 (2008)). These motions, however, must be filed no 

later than 90 days after the entry of a final administrative decision. Id. (citing 

8 U.S.C.§ 1229a(c)(7)). 

The BIA issued its final administrative decision when it ordered Lara 

Canales to be removed in August 2006.1 As is often the case, Lara Canales 

was not removed. In the meantime, the law changed when the Supreme 

Court decided Pereira v. Sessions, 138 S. Ct. 2105 (2018). In Pereira, the Court 

held that a “putative notice to appear that fails to designate the specific time 

or place of the [alien]’s removal proceedings is not a ‘notice to appear under 

section 1229(a),’ and so does not trigger the stop-time rule.” 138 S. Ct. at 

2113–14. Less than 90 days after the Pereira decision, Lara Canales filed a 

motion to reopen, arguing that because her 2006 NTA was defective, she had 

accrued the necessary period of continuous presence to be eligible for

1 This removal order arose from a reversal of the immigration judge’s initial 

determination that Lara Canales was entitled to asylum. 

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cancellation of removal. Stated differently, because her NTA failed to specify 

the time and date that her removal proceedings would take place, it did not 

trigger the stop-time rule. And although she conceded that her motion to 

reopen was filed more than 90 days after the entry of her removal order in 

2006, Lara Canales argued she was entitled to equitable tolling of the 

limitations period based on the extraordinary circumstance of a change in 

law—that is, the Pereira decision. 

Nevertheless, the BIA denied her motion to reopen as untimely, 

explaining that no statutory or regulatory exception to the general limitations 

period applied. The BIA further noted that, notwithstanding Pereira, Lara 

Canales would still be ineligible for cancellation of removal because of two 

alternative events that triggered the stop-time rule: (1) subsequent service of 

her notice of hearing that “perfected” any defects in the NTA and (2) the 

entry of her final administrative decision in 2006. 

Lara Canales now appeals. She argues, inter alia, that (1) she is eligible 

for cancellation of removal because her defective NTA did not trigger the 

stop-time rule, and (2) her motion to reopen is not barred as untimely because 

she was entitled to equitable tolling.2 Here, the BIA’s conclusion that Lara 

Canales was not entitled to equitable tolling implicitly rests on its finding that 

Lara Canales was not newly eligible to seek cancellation of removal as a result 

of the Pereira decision. Thus, to address Lara Canales’s equitable tolling 

argument, we must answer an underlying question: Whether the BIA erred 

in concluding that there was no extraordinary circumstance that might 

warrant tolling of the limitations period.

2 Lara Canales argues that the immigration court lacked jurisdiction over her 

removal proceedings. Lara Canales’s jurisdictional argument is squarely foreclosed by our 

decision in Pierre-Paul v. Barr—a decision in which this court held that Pereira had no effect 

on the immigration court’s jurisdiction over removal proceedings. 930 F.3d 684, 689–90 

(5th Cir. 2019), abrogated on other grounds by Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). 

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II.

We review the BIA’s denial of a motion to reopen under the “highly 

deferential” abuse of discretion standard. Lugo-Resendez, 831 F.3d at 340 

(quoting Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (per 

curiam)). Such an abuse of discretion occurs if the BIA’s decision “is 

capricious, irrational, utterly without foundation in the evidence, based on 

legally erroneous interpretations of statutes or regulations, or based on 

unexplained departures from regulations or established policies.” Id. 

(quoting Barrios-Cantarero, 772 F.3d at 1021).

III.

As we have earlier indicated, a motion to reopen under 8 

U.S.C.§ 1229a(c)(7) must “be filed within 90 days of the date of entry of a 

final administrative order.” This deadline, however, is subject to equitable 

tolling. Lugo-Resendez, 831 F.3d at 344. Equitable tolling requires that a 

petitioner establish, “(1) that [s]he has been pursuing [her] rights diligently, 

and (2) that some extraordinary circumstance stood in [her] way and 

prevented timely filing.” Id. (quoting Menominee Indian Tribe v. United 

States, 577 U.S. 250, 255 (2016)). 

This court has recognized that changes in law may constitute an 

extraordinary circumstance justifying equitable tolling of the deadline for 

seeking statutory reopening. Id. at 343–44. For example, in Lugo-Resendez, 

this court was presented with an equitable tolling claim based on a change in 

law where an alien’s conviction no longer rendered him deportable. Id.

Although the court declined to determine if the deadline should have been 

tolled, it remanded the alien’s claim so that the BIA could properly consider 

whether the alien was entitled to equitable tolling based on the change in law. 

Id. at 344. 

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Here, Lara Canales concedes that her motion was filed outside the 

90-day deadline, but contends that she is entitled to equitable tolling because 

(1) the Pereira decision was an extraordinary circumstance that rendered her 

newly eligible to seek cancellation of removal and (2) she diligently pursued 

her rights by filing her motion to reopen within 90 days of the Pereira

decision. In rejecting Lara Canales’s equitable tolling arguments, the full 

extent of the BIA’s analysis was that she “has not shown that any of the 

statutory or regulatory exceptions to the general time limitations on motions 

to reopen apply to her case.”3

Usually, we defer “to the BIA’s interpretation of immigration 

regulations if th[e] interpretation is reasonable.” Barrios-Cantarero, 772 F.3d 

at 1021 (citing Hernandez-Castillo v. Moore, 436 F.3d 516, 519 (5th Cir. 

2006)). But in this case, it is not. 

The BIA reasoned that Lara Canales’s continuous physical presence 

had stopped accruing after the service of her defective NTA because it was

subsequently “cured” by her notice of hearing. Alternatively, the BIA 

reasoned that Lara Canales had not been present in the United States for 10 

years at the time of her removal order because the issuance of her final 

administrative order in 2006 triggered the stop-time rule. 

We begin our review by observing that Pereira made clear that a 

defective NTA will not stop the running of the 10-year continuous time 

period. See 138 S. Ct. at 2113–14 (holding that a putative NTA that fails to 

designate the specific time or place of the noncitizen’s removal proceedings 

3 We additionally hold that the single sentence from the BIA, devoid of any analysis, 

is insufficient for us to conclude that the BIA appropriately considered Lara Canales’s 

equitable tolling argument. See Sylejmani v. Sessions, 729 F. App’x 317, 321 (5th Cir. 2018) 

(per curiam) (holding the BIA abused its discretion in denying a motion to reopen as 

untimely filed when the BIA did not provide a reasoned explanation for its denial and 

provided only conclusory statements that the motion was untimely).

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does not trigger the stop-time rule). Further, the Supreme Court’s decision 

in Niz-Chavez v. Garland forecloses the BIA’s conclusion that the notice of 

hearing Lara Canales received later “perfected” the deficient NTA. See 141 

S. Ct. 1474, 1486 (2021) (holding that to trigger the stop-time rule, a NTA

must come in the form of a single document). Thus, the BIA erroneously 

determined that Lara Canales was ineligible for cancellation of removal on 

the basis that her NTA combined with her subsequent notice of hearing was 

adequate to trigger the stop-time rule. 

The BIA’s alternative basis for holding that Lara Canales had not been 

present in the United States for the requisite 10-year period is also legal error. 

As the BIA noted, the final removal order was entered in 2006—around one 

year after Lara Canales came to the United States. The BIA cited its own 

decision in Matter of Garcia, 24 I. & N. Dec. 179, 181 (BIA 2007), as authority 

for the proposition that “continuous physical presence only continues to 

accrue until the entry of a final administrative decision.” But this ruling, too,

is error: a final order of removal does not trigger the stop-time rule and 

terminate continuous physical presence. Parada v. Garland, 48 F.4th 374, 377 

(5th Cir. 2022) (per curiam). This court recently held that the text of the 

stop-time rule is clear: the clock only stops when an alien is served with a 

proper NTA under section 1229(a) or when an alien has committed an 

enumerated offense under section 1229b(d)(1). See id. Neither of the two 

triggering events occurred here. 

Accordingly, each of the BIA’s bases for determining that Lara 

Canales had not accrued the continuous physical presence required for 

eligibility of cancellation of removal was legal error. We now hold that Lara 

Canales is statutorily eligible to seek cancellation of removal. However, this 

holding does not automatically entitle Lara Canales to have her motion to 

reopen heard on the merits. The BIA must, upon remand, engage in the factintensive determination of whether the 90-day deadline on motions to reopen 

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should be tolled because of the extraordinary circumstance presented by 

Pereira. If the BIA determines Lara Canales satisfies the requirements for 

equitable tolling, she may then present her motion for a determination on its 

merits. 

We therefore VACATE the BIA’s denial of Lara Canales’s motion 

to reopen and REMAND this case for further consideration not inconsistent 

with this opinion.

VACATED and REMANDED.

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