United States Court of Appeals

For the Eighth Circuit 

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No. 22-3653

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Israel Amador-Morales

 Petitioner

v.

Merrick B. Garland

 Respondent

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Petition for Review of an Order of the

Board of Immigration Appeals

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Submitted: October 17, 2023

Filed: February 27, 2024

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Before BENTON, SHEPHERD, and KELLY, Circuit Judges. 

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BENTON, Circuit Judge. 

 

Israel Amador-Morales petitions for review of the denial of his motion to 

reopen by the Board of Immigration Appeals. This court denies the petition.

Morales, a citizen of Mexico, entered the United States without inspection in 

2003. Seven years later, the Department of Homeland Security sought to remove 

him to Mexico. He agreed to voluntary departure, lawfully departing in November 
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2012. He returned to the United States without inspection in January 2013. A year 

and a half later, DHS again sought to remove him. Morales received a Notice to 

Appear (NTA) alleging removability as an alien present in the United States without 

being admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). The NTA 

omitted the date and time of his hearing. 

On November 22, 2016, Morales, with counsel, admitted the allegations in 

the NTA and conceded removability. The Immigration Judge then asked counsel 

if he wanted “some attorney prep time” to “investigate the U-visa” as a form of 

relief from removal. Counsel said he would. For the next two years, at fourseparate 

hearings, his counsel and the IJ discussed avenues for relief from removal

including: a U-Visa application, voluntary departure, and cancellation of removal 

for non-lawful permanent residents. On February 25, 2019, noting Pereira v. 

Sessions, 138 S. Ct. 2105 (2018), Morales amended his pleading to withdraw both 

his admission to the allegations and concession of removability. He also moved to 

terminate the proceedings. 

A month later, the IJ, in a written decision, denied the motion to terminate 

proceedings, granted DHS’s motion to pretermit his application for cancellation of 

removal, and ordered him removed to Mexico. Morales appealed. On July 1, 2022, 

the BIA dismissed the appeal. On November 25, 2022, the BIA denied the motion

to reopen. 

Morales asks this court to reverse and remand to the BIA. He argues it: (1) 

should have granted his motion to reopen; (2) erred in ruling that his objection to 

the NTA was untimely; and (3) misconstrued his motion as asking it to “compel” 

DHS to exercise prosecutorial discretion.

The court reviews the BIA’s denial of a motion to reopen for abuse of 

discretion. Mshihiri v. Holder, 753 F.3d 785, 789 (8th Cir. 2014), citing Quinteros 

v. Holder, 707 F.3d 1006, 1009 (8th Cir. 2013). “The BIA abuses its discretion 

where it gives no rational explanation for its decision, departs from its established 
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policies without explanation, relies on impermissible factors or legal error, or 

ignores or distorts the record evidence.” Id.

I. 

After the BIA dismissed his appeal but before it denied his motion to reopen, 

it decided Matter of Fernandes, 28 I. & N. Dec. 605 (BIA 2022). According to 

Morales, this was an intervening precedent about the BIA’s claim-processing 

principles. An intervening change in the law that “pertains to the rules of the 

proceeding at which deportation was ordered” may justify reopening after the fact. 

INS v. Doherty, 502 U.S. 314, 325 (1992). 

Morales believes that Fernandes is an intervening precedent based on his 

view of the prior cases, especially Matter of Rosales Vargas, 27 I. & N. Dec. 745

(BIA 2020); Matter of Arambula Bravo, 28 I. & N. Dec. 388 (BIA 2021); Matter 

of Nchifor, 28 I. & N. Dec. 585 (BIA 2022). 

The Rosales Vargas case explains that an NTA lacking the address of the 

immigration court still vests it with subject matter jurisdiction. Vargas, 27 I. & N. 

Dec. at 745. The immigration court also has subject matter jurisdiction if the NTA 

lacks a certificate of service. Id. “Informed by the principles of administrative law 

and considering the regulation in context,” “jurisdiction” in 8 C.F.R. § 1003.14(a)

is a claim-processing rule. Id. at 752. The BIA added that a “claim-processing rule 

may be challenged in a timely manner.” Id. at 753. 

The Arambula Bravo case says that the “absence of information required by 

section 239(a) is not a jurisdictional defect.” Arambula Bravo, 28 I. & N. Dec. at 

391, interpreting 8 U.S.C. § 1229(a). In Arambula, whether section 239(a) is “a 

mandatory claims-processing rule” was raised by amicus. Id. at 392 n.3. However, 

because the noncitizen did not advance “an argument concerning section 239(a) as 

a claims-processing rule, and neither timely objected to the NTA nor claimed any 

prejudice caused by its omissions,” the BIA chose to “leave further consideration 
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of section 239(a) as a claims-processing rule for another day.” Id. (citations 

omitted).

The Nchifor case concludes that, if a noncitizen first objects to a deficient 

NTA in a motion to reopen, the noncitizen forfeits that objection. Matter of 

Nchifor, 28 I. & N. Dec. at 586-89.

Discussing these three cases, Fernandes concludes that “the time and place 

requirement in section 239(a)(1) is a claim-processing rule, not a jurisdictional 

requirement.” Fernandes, 28 I. & N. Dec. at 608. Most importantly, the BIA ruled 

that it is following its precedent. The BIA chose to “adhere to our view in Matter 

of Arambula Bravo” that “section 239(a)(1) is not a jurisdictional provision.” Id.

at 607. See also id. at 608, 612 (also citing Nchifor, 28 I. & N. Dec. at 588; Vargas, 

27 I. & N. Dec. at 753-54). Fernandes does not identify specific BIA decisions that 

it overrules or supersedes about timeliness. 

As a claim-processing requirement, section 239(a)(1) is subject to waiver and 

forfeiture. Id. at 609. If a noncitizen “does not raise an objection to a defect in the 

notice to appear in a timely manner, such an objection is waived or forfeited.” Id., 

citing Pierre-Paul v. Barr, 930 F.3d 684, 693 (5th Cir. 2019). “This guideline 

would also allow DHS an opportunity to remedy the noncompliant notice to appear 

before any substantive matters are discussed or determined[.]” Id. at 610. 

 

Contrary to Morales’s view—which echoes the dissent in Fernandes that 

focused on Rosales Vargas—Fernandes followed prior BIA decisions and was not 

an intervening precedent. The BIA properly declared that Fernandes was not an 

intervening change in the law that would excuse his forfeiture of an objection to the 

NTA.

II. 

Morales argues that because the IJ mentioned that he had retracted his 

admission and concession of the charge of removal and proceeded to resolve 
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removability based on the evidence, the IJ accepted the retraction as a timely

objection to the NTA. Morales emphasizes that Fernandes says that an objection 

is timely if it is raised before the closing of pleadings. Id. at 610. Citing the 

undisputed facts, he reasons that because the IJ: (1) scheduled later hearings, (2)

did not say explicitly on the record that his removability was established, and (3) 

had not deemed him removable, the pleadings were not closed. On appeal, the BIA

did not address this issue. It ruled on the merits, citing 8 C.F.R. § 1240.10 (the 

regulation about removal hearings). 

In removal proceedings, the immigration judge first determines whether the 

noncitizen is removable from the United States. If the noncitizen is not removable, 

the proceedings end. If a noncitizen admits the NTA’s allegations and concedes 

removability, the IJ “may determine that the removability as charged has been 

established[.]” 8 C.F.R § 1240.10(c). If the IJ does not accept the admission and

concession, the IJ “shall direct a hearing on the issues.” Id. The immigration 

proceedings then proceed to the relief phase. See Matovski v. Gonzales, 492 F.3d 

722, 727 (6th Cir. 2007) (“Removal proceedings against an alien are divided into 

two phases (1) determination of the alien’s removability; and (2) consideration of 

applications for discretionary relief.”). 

In his original appearance, Morales, with counsel, admitted the NTA’s 

allegations, and conceded the sole charge of removability. Fernandes recognizes

the “guideline” that “closing of pleadings” occurs when “substantive matters are 

discussed or determined[.]” Fernandes, 28 I. & N. Dec. at 610. After Morales’s

admission and concession, the IJ scheduled four hearings to discuss the substantive 

matters for his applications for relief from removal, especially his U-Visa 

eligibility. Morales’s case lasted nearly two years in the relief phase where

“substantive matters were discussed or determined.” Id. Thus, pleadings had 

closed before his retraction. 

 Morales asserts: “Because 8 C.F.R. § 1240.10(d) requires a decision 

sustaining the charge of removability as the last act that closes the pleading process, 
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the pleadings here weren’t closed.” To the contrary, that regulation does not require 

an explicit statement from the immigration judge to “determine that removability 

as charged has been established by the admissions of the [noncitizen.]” 8 C.F.R. § 

1240.10 (c). 

Morales also reasons that since DHS can amend or substitute the allegations 

or charges in an NTA at any time, pleadings are not closed until the conclusion of 

the proceeding. True, the regulation provides that if DHS adds or substitutes an 

allegation or charge, the “alien may be given a reasonable continuance to respond 

to the additional factual allegations and charges[.]” 8 C.F.R. § 1003.30. In this 

case, DHS did not amend or substitute allegations, so Morales’s reasoning does not 

apply. 

Through counsel, Morales admitted to DHS’s allegations and conceded 

removability. “Absent egregious circumstances,” a distinct and formal admission 

before, during, or even after a proceeding by an attorney acting in his professional 

capacity binds the client as a judicial admission. Matter of Velasquez, 19 I. & N. 

Dec. 377, 382 (BIA 1986). The egregious circumstances are admissions and 

concessions that were “the result of unreasonable professional judgment” or “were 

so unfair that they have produced an unjust result.” Id. at 383. Because Fernandes

was not a change in law, it is not an egregious circumstance permitting the 

withdrawal of the admission and concession. Morales has not alleged ineffective 

assistance of counsel. There is a strong presumption that a counsel’s decision to 

concede deportability is a reasonable tactical decision. Id. at 382. Morales presents 

no evidence to overcome the presumption. Morales’s objections to the NTA 

occurred after the closing of pleadings, and thus were untimely. 

III. 

In his motion to reopen, Morales requested a remand to allow the possibility 

of a negotiated resolution with the DHS. He claims that the BIA distorted his 

request when it stated: 
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The respondent also seeks remand to pursue prosecutorial 

discretion with the DHS. However, the Board lacks the 

authority to compel DHS to take such action. See 

generally Matter of Quintero, 18 I&N Dec. 348, 349-50 

(BIA 1982) (explaining prosecutorial discretion is a 

function of DHS). Our decision does not affect the 

respondent’s ability to separately pursue prosecutorial 

discretion with DHS.

 The BIA’s “compel DHS” response is, in the Government’s words, 

“unartful.” However, as both parties agree, the BIA lacks this authority over the 

DHS. Because Morales could still pursue prosecutorial discretion, the BIA did not 

abuse its discretion in denying a remand. 

* * * * * * *

The petition for review is denied. 

KELLY, Circuit Judge, dissenting. 

In Matter of Fernandes, the BIA held for the first time that the requirement in 

§ 239(a)(1) that the NTA specify the time and place of proceedings “is a claimprocessing rule, not a jurisdictional requirement.” 28 I. & N. Dec. 605, 608 (BIA 

2022). The BIA also said that it “will generally consider an objection to a 

noncompliant notice to appear to be timely if it is raised prior to the closing of 

pleadings before the Immigration Judge.” Id. at 610–11 (emphasis added). Relying 

on this language, the BIA concluded Amador-Morales’s objection “was untimely 

because he filed a motion to terminate [his removal proceedings] based on the 

missing time and date information after his pleadings were taken by the Immigration 

Judge.” Thus, according to the BIA, his objection was waived.

But Fernandes did not define “the closing of pleadings.” See id. So, we do not 

know how to determine when pleadings close in a case like this one, where a 
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noncitizen retracts and amends their pleadings before the IJ makes a substantive 

decision on their eligibility for relief.1 Moreover, “immigration laws provide little 

guidance that would help us to choose such a fixed point.” Arreola-Ochoa v.

Garland, 34 F.4th 603, 608 (7th Cir.), cert. denied, 143 S. Ct. 492 (2022).2 

In resolving this case, the court here describes removal proceedings as 

comprised of two distinct phases: the IJ determines removability in one phase and 

considers eligibility for relief in another. In many cases, the dividing line between 

removal and relief may be that simple. But, as this case illustrates, that is not always 

how it works. See Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011) (per 

curiam) (“[R]emoval proceedings are ‘not always neatly divided into pleading and 

evidentiary stages.’” (quoting Perez-Mejia v. Holder, 663 F.3d 403, 415 n.10 (9th 

Cir. 2011))). 

In Amador-Morales’s proceedings, the parties began discussing potential 

avenues of relief before any pleadings as to removability, suggesting removability 

and eligibility for relief were being examined concurrently. Then, after admitting to 

DHS’s charges, and exploring and declining to pursue different forms of relief, 

Amador-Morales suggested to the IJ that his prior voluntary departure order may be 

1

Fernandes also left open “[t]he precise contours of permissible remedies” that 

DHS may request and an IJ may impose upon a petitioner’s timely objection. 28 I. 

& N. Dec. at 616. Thus, if pleadings remained open when Amador-Morales raised 

his objection, then the appropriate course of action would have been a remand for 

the IJ to determine an appropriate remedy. See id. 

2

In this pre-Fernandes case, the Seventh Circuit recognized that “a bright-line 

moment during proceedings at which a claim moves from timely to untimely” was 

yet undefined, so conducted “a holistic and circumstance-specific analysis of 

timeliness.” Arreola-Ochoa, 34 F.4th at 608–09. It considered the following nonmandatory and non-exhaustive factors: (1) “how much time passed, in absolute 

terms, between the receipt of the [NTA] and the raising of the objection;” (2) whether 

“the immigration court set a schedule for filing objections, and did the objection 

comply with that schedule;” and (3) “how much of the merits had been discussed or 

determined prior to the objection[.]” Id. at 609.
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void due to a defective NTA. See Pereira v. Sessions, 585 U.S. 198, 202 (2018) (“A

notice that does not inform a noncitizen when and where to appear for removal 

proceedings is not a ‘notice to appear under section 1229(a)’ and therefore does not 

trigger the stop-time rule.”). Amador-Morales later moved to terminate proceedings 

based on the missing information on the NTA, and submitted amended written 

pleadings denying DHS’s charges against him. He did so before the IJ considered 

any potential relief on the merits. 

When the IJ ruled on Amador-Morales’s motion to terminate, it did not 

expressly find his amended pleadings, or objection to the defective NTA, untimely. 

Rather, the IJ simply acknowledged that Amador-Morales had “retracted his 

admission of the factual allegations and concession of the charge of removal” and 

had submitted “updated written pleadings.” The IJ then considered those amended 

pleadings and expressly relied on evidence other than Amador-Morales’s withdrawn 

pleadings to decide that DHS’s allegations had been proven and deny relief. In short, 

the IJ had not yet made a substantive decision about relief when Amador-Morales 

objected to the defective NTA and amended his pleadings. Under these 

circumstances, the record could support a finding that Amador-Morales’s objection 

was timely. Cf. Castillo-Gomez v. Garland, No. 22-1049, 2023 WL 7042544, at *2 

(9th Cir. Oct. 26, 2023) (finding objection untimely when it was first raised after the 

BIA entered a final removal order); Alvarenga-Canales v. Garland, No. 22-3514, 

2023 WL 3094545, at *3 (6th Cir. Apr. 26, 2023) (finding objection untimely when 

it was first raised on appeal). 

Amador-Morales asked the BIA to reopen his proceedings to apply Fernandes. 

However, when the BIA found that his objection to the defective NTA was untimely, 

it did not address the fact that when he raised the objection, he also withdrew his 

admission and amended his pleadings, and that this occurred prior to any merits 

hearing or substantive decision on relief. Thus, even if Fernandes is not an 

intervening change in the law, that case—and the BIA’s denial—left open the 

question that needs to be answered here: how do we determine when pleadings have 

closed? Because the BIA has not clarified, we lack guidance for determining when 
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the pleadings are considered closed in a situation like this one—where the initial 

admission has been withdrawn and an amended pleading has taken its place.

Our review of the BIA’s decision to deny Amador-Morales’s motion is 

deferential, see Payeras v. Sessions, 899 F.3d 593, 596 (8th Cir. 2018), and the 

unresolved question does not necessarily have an easy answer—at least as to 

Amador-Morales. But given the unusual procedural record, it was an abuse of 

discretion to overlook the impact of Fernandes on Amador-Morales’s case. And 

because “the [BIA] can bring its expertise to bear upon the matter,” it is properly 

“place[d] primarily in agency hands.” See INS v. Orlando Ventura, 537 U.S. 12, 16–

17 (2002) (per curiam). For these reasons, I would grant the petition for review and 

remand for the BIA to clarify the phrase “the closing of pleadings,” and, if 

appropriate, for the BIA to remand to the IJ for further proceedings. 

I respectfully dissent.

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