United States Court of Appeals

For the First Circuit

No. 22-1599

DORA ALICIA MANCIA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Kayatta, Lynch, and Thompson,

Circuit Judges.

Margaret Moran, with whom New Hampshire Legal Assistance was 

on brief, for petitioner.

Robert Michael Stalzer, Trial Attorney, Office of Immigration 

Litigation, with whom Brian Boynton, Principal Deputy Attorney 

General, Civil Division, and Stephen J. Flynn, Assistant Director, 

Office of Immigration Litigation, were on brief, for respondent.

August 4, 2023
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KAYATTA, Circuit Judge. Dora Alicia Mancia's mother 

entered the United States without inspection in 1990 and sought 

asylum shortly thereafter. In 1994, at the age of nine, Mancia 

entered the United States from El Salvador without inspection to 

join her mother. Mancia was placed in deportation proceedings 

soon after her arrival. In 1995 an Immigration Judge ("IJ") found 

her deportable and granted her a five-month period of voluntary 

departure, a decision Mancia appealed. Her deportation

proceedings ended in 1996, when the Board of Immigration Appeals 

dismissed Mancia's appeal from the entry of a voluntary departure 

order issued by the IJ.1 Mancia, then eleven years old, did not 

depart, voluntarily or otherwise. 

In 1997, Congress enacted the Nicaraguan Adjustment and 

Central American Relief Act ("NACARA"), Pub. L. No. 105-100,

§§ 201–04, 111 Stat. 2160, 2193–2201 (1997). Two aspects of that 

statute are relevant here. First, NACARA section 203 preserved

for qualified individuals from El Salvador, among other nations, 

the more lenient substantive standards for relief from removal or 

deportation that had been available before the passage of the 

Illegal Immigration Reform and Immigrant Responsibility Act of 

1996 (IIRIRA).2 NACARA § 203; Gonzalez-Ruano v. Holder, 662 F.3d 

1 Mancia did not seek reopening of her deportation 

proceedings until 2021. 

2 Prior to the enactment of IIRIRA, noncitizens seeking 

suspension of deportation were required to show (among other 
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59, 60 (1st Cir. 2011). Second, section 203(c) of NACARA created 

a special and more lenient vehicle to reopen removal or deportation 

proceedings for NACARA-eligible individuals. The deadline for 

seeking reopening via a section 203(c) motion was September 11, 

1998. 8 C.F.R. § 1003.43(e)(1). There is otherwise "no deadline 

for applying for relief under section 203 of NACARA." See

Suspension of Deportation and Special Rule Cancellation of Removal 

for Certain Nationals of Guatemala, El Salvador, and Former Soviet 

Bloc Countries, 64 Fed. Reg. 27856, 27861 (May 21, 1999).

Mancia would like to have her removal proceedings 

reopened so that her request for suspension of deportation can be 

adjudicated according to the still-extant substantive NACARA 

standards. She acknowledges that the avenue to reopening provided 

by the special rule of section 203(c) has never been available to 

her, as she became NACARA-eligible after the section 203(c) motion 

filing deadline had passed. Hence, her motion did not cite 

section 203(c). Nor did she invoke its more lenient standards for 

qualifications) seven years of continuous physical presence in the 

United States prior to seeking relief. See Aguirre v. Holder, 728 

F.3d 48, 51 (1st Cir. 2013). IIRIRA, which dramatically restricted 

the availability of relief from deportation, imposed a "stop time" 

rule on the continuous physical presence requirement. Id. Under 

the "stop time" rule, noncitizens now must meet the continuous 

physical presence requirement before entering into deportation 

proceedings. See 8 U.S.C. § 1229b(d)(1); Aguirre, 728 F.3d at 51; 

Peralta v. Gonzales, 441 F.3d 23, 26–27 (1st Cir. 2006); Munoz v. 

Ashcroft, 339 F.3d 950, 955–56 (9th Cir. 2003); Ram v. I.N.S., 243 

F.3d 510, 513 (9th Cir. 2001). 
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reopening. Instead, she asked the Board to exercise its wellestablished discretion to reopen her proceedings sua sponte so 

that her removability could then be determined by the Immigration 

Court based on the substantive NACARA standards for relief from 

removal which, she maintains, she satisfies. See 8 C.F.R. 

§ 1003.2(a) ("[T]he Board may . . . reopen or reconsider any case 

in which it has rendered a decision . . . . The decision to grant 

or deny a motion to reopen or reconsider is within the discretion 

of the Board, subject to the restrictions of this section.") 

The Board nevertheless ruled that it had no jurisdiction 

to reopen Mancia's proceeding because it construed Mancia's filing 

as a "motion[] seeking relief under NACARA," which therefore should 

have been "filed with the Immigration Court, even if the Board of 

Immigration Appeals issued an order in the case." In so ruling, 

the Board did not acknowledge its sua sponte reopening authority. 

Additionally, the Board stated that Mancia missed the 

September 11, 1998, deadline for "NACARA motions." Finally, the 

Board stated that Mancia was not eligible for substantive NACARA 

relief as of the September 1998 section 203(c) deadline, "given 

her noncompliance with the Immigration Judge's voluntary departure 

order." 
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I.

A.

The parties' principal dispute turns on the interaction, 

if any, between the Board's generally applicable power to reopen 

a closed removal proceeding sua sponte and the special motion to 

reopen created by section 203(c). The government's principal 

argument, in substance, is that if the purpose of reopening is to 

pursue relief under NACARA's substantive provisions, then 

section 203(c) provides the exclusive avenue for reopening. 

Mancia rejects this position. She contends that nothing in NACARA

limits the Board's general discretionary power to reopen sua sponte

a case in which it has rendered a decision. Indeed, that inherent 

discretion is codified. See 8 C.F.R. § 1003.2(a). So, she 

reasons, even though the special and more petitioner-friendly 

reopening avenue of section 203(c) closed to her in 1998, there is 

no reason why she cannot ask the Board to grant reopening under 

its discretionary authority, subject to all the limits that 

otherwise apply to that authority.3

3 The decision whether to exercise sua sponte reopening 

authority is highly discretionary, to the extent that "[t]he Board 

has discretion to deny a motion to reopen even if the party moving 

has made out a prima facie case for relief." 8 C.F.R. § 1003.2(a). 

Consequently, the Board will only utilize this sua sponte authority 

"if it is 'persuaded that the respondent's situation is truly 

exceptional.'" Thompson v. Barr, 959 F.3d 476, 480 (1st Cir. 2020) 

(quoting In re G-D-, 22 I. & N. Dec. 1132, 1134 (B.I.A. 1999)). 

Despite the substantial discretion inherent in the Board's sua 

sponte authority, we have jurisdiction to "review constitutional 
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We agree with Mancia. The Board's reliance on 8 C.F.R. 

§ 1003.43(h) -- requiring filing of section 203(c) reopening 

requests with the Immigration Court -- is misplaced because that 

requirement only applies to "any motion to reopen filed pursuant 

to the special rules of section 309(g) of IIRIRA, as amended by 

section 203(c) of NACARA." See 8 C.F.R. § 1003.43(h)(1). Mancia's 

motion to reopen is no such motion. And nothing in NACARA requires 

those seeking relief under its provisions to do so by filing a 

section 203(c) motion.

The government points to no statute, rule, or precedent 

to the contrary. And we see no reason why NACARA should be read 

as implicitly divesting the Board of its discretion to sua sponte 

reopen a proceeding. The main purpose of NACARA was to make 

cancellation of removal and suspension of deportation more 

available to non-citizens like Mancia. See Gonzalez-Ruano, 662

F.3d at 60; Peralta v. Gonzales, 441 F.3d 23, 26–27 (1st Cir. 

2006). Congress did this by adopting NACARA-specific standards 

for cancellation of removal and suspension of deportation, and by 

adding an easier reopening avenue for some persons. Given this 

context, it would make little sense to hold that Congress silently 

intended to eliminate other avenues to reopening for NACARAclaims or errors of law that arise in motions to reopen sua 

sponte." Id. at 483 (footnote omitted).
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eligible persons who could not use the easier section 203(c) 

avenue. 

B.

The Board provided two brief alternative bases for its 

holding. The Board explained first that, even setting aside its 

lack of jurisdiction, the deadline for NACARA motions was 

September 11, 1998; and second, that Mancia had failed to show 

that she was eligible for NACARA relief as of that deadline, given 

her noncompliance with the Board's July 1996 voluntary departure 

order.4 The voluntary departure order required Mancia to depart 

from the United States by August 28, 1996; she did not do so, and 

the five-year bar to relief -- including suspension of deportation

-- under the then-existing provisions of the INA began to run as 

of that date and did not end until August 2001. See 8 U.S.C. 

§ 1252b(e)(3)(A) (repealed).

As we explained above, although there was a 

September 11, 1998, deadline for NACARA section 203(c) motions, 

there is no deadline for NACARA relief. Thus, the passage of the 

section 203(c) deadline does not bar Mancia's motion for sua sponte 

4 Mancia challenges the validity of the departure order; 

because this issue is not administratively exhausted, we do not 

consider her arguments on that point here, and for the purposes of 

this analysis consider the departure order valid. In any event, 

Mancia applied for relief nineteen years after the August 28, 2001,

end date of the then-applicable five-year bar. 
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reopening, as she did not seek to reopen pursuant to 

section 203(c).

Similarly, Mancia is not required to show that she was 

eligible for NACARA relief as of September 11, 1998. She 

acknowledges that she was not, due not only to the voluntary 

departure order but also, and more importantly, to the fact that 

her mother had not yet been granted NACARA relief. Mancia became 

eligible for NACARA relief based on her mother's 2006 grant of

NACARA relief, as Mancia was then an unmarried dependent of her 

mother and had not yet turned twenty-one. See NACARA § 203(a)(1) 

(providing derivative eligibility to the unmarried son or daughter 

under twenty-one years of age at the time his or her parent is 

granted relief under NACARA). Thus, although the Board's 

consideration of whether to exercise its sua sponte authority to 

reopen Mancia's proceedings must assess whether Mancia's request 

for NACARA relief might be granted, it should ground that inquiry 

in whether Mancia is presently eligible for such relief. See

Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) ("[W]here the 

Agency may have declined to exercise its sua sponte authority 

because it misperceived the legal background and thought, 

incorrectly, that a reopening would necessarily fail, remand to 

the Agency for reconsideration in view of the correct law is 

appropriate.").
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II.

For the foregoing reasons, we grant Mancia's petition by 

vacating the Board's rejection of her motion to reopen her removal 

proceedings pursuant to the Board's sua sponte authority and 

remanding for further consideration of that motion consistent with 

this opinion.