Ismael Hernandez-Alvarez v. William Barr ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1459
ISMAEL HERNANDEZ-ALVAREZ,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A043-789-540.
____________________
ARGUED NOVEMBER 6, 2020 — DECIDED DECEMBER 16, 2020
____________________
Before ROVNER, BRENNAN and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Mexican citizen Ismael Hernandez-
Alvarez was a permanent resident of the United States when,
in 2002, he was convicted in Illinois of indecent solicitation of
a child. The Department of Homeland Security (“DHS”) initi-
ated removal proceedings on the grounds that his conviction
constituted an aggravated felony. Though Hernandez-Alva-
rez argued that his solicitation conviction did not qualify as
2 No. 20-1459
an aggravated felony, an Immigration Judge (“IJ”) and the
Board of Immigration Appeals (the “Board”) disagreed and
ordered his removal. He then moved for the Board to recon-
sider but was removed to Mexico before the Board decided
his motion. The Board then determined that his removal con-
stituted a withdrawal of his motion to reconsider.
Fifteen years later, Hernandez-Alvarez moved for the
Board to reconsider its decision and reopen his removal pro-
ceedings in light of two recent Supreme Court decisions: Es-
quivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), and Pereira
v. Sessions, 138 S. Ct. 2105 (2018). He argued that his motion
was timely because it merited equitable tolling; alternatively,
he requested that the Board invoke its authority to reopen his
proceedings sua sponte. 1 The Board denied his statutory mo-
tion to reconsider and reopen, concluding that equitable toll-
ing was not warranted because Hernandez-Alvarez failed to
show due diligence. It also rejected his argument based on Pe-
reira that the IJ did not have jurisdiction over his removal pro-
ceedings and declined to exercise its power to reopen the pro-
ceedings sua sponte. Because the Board did not abuse its dis-
cretion in denying Hernandez-Alvarez’s statutory motion to
1 We recognize that “[d]escribing the motion as seeking a ‘sua sponte’
reopening is a common but unfortunate misnomer and even an oxymo-
ron.” Salazar-Marroquin v. Barr, 969 F.3d 814, 816 n.1 (7th Cir. 2020); see also
Fuller v. Whitaker, 914 F.3d 514, 515 n.1 (7th Cir. 2019) (“[W]hen the Board
acts in response to a litigant’s request, it is not acting sua sponte.”). None-
theless, we use the phrase here because it “distinguishes the Board’s in-
herent power to reopen removal proceedings at any time from a party’s
right to file one motion to reopen within 90 days of a final agency deter-
mination” or a party’s right to file one motion to reconsider within 30 days
of a final agency determination. Salazar-Marroquin, 969 F.3d at 816 n.1.
No. 20-1459 3
reconsider and reopen, his petition for review is denied. And
because the Board did not commit legal error in declining to
reopen his proceedings sua sponte, we dismiss that aspect of
the petition for want of jurisdiction.
I. Background
A. Removal Proceedings
In 2002, when he was 20 years old, Hernandez-Alvarez
was charged and convicted of indecent solicitation of a child
in Illinois as part of an undercover operation. He conversed
in an internet chat room with an adult undercover investiga-
tor, whom he believed to be a 15-year-old girl named “Katie.”
He made plans to meet “Katie” for sex and was arrested the
next morning en route to meet her. He was convicted under
720 ILCS 5/11–6(a), which provided:
A person of the age of 17 years and upwards
commits the offense of indecent solicitation of a
child if the person, with the intent that the of-
fense of aggravated criminal sexual assault,
criminal sexual assault, predatory criminal sex-
ual assault of a child, or aggravated criminal
sexual abuse be committed, knowingly solicits a
child or one whom he or she believes to be a
child to perform an act of sexual penetration or
sexual conduct as defined in Section 12–12 of
this Code.
The statute defined “child” as “a person under 17 years of
age.” 720 ILCS 5/11–6(b). Hernandez-Alvarez was then
sentenced to 30 months’ probation and six months’ peri-
odic imprisonment.
4 No. 20-1459
As a result of this conviction, on April 9, 2003, DHS initi-
ated removal proceedings by issuing Hernandez-Alvarez a
notice to appear. It charged him as being removable under 8
U.S.C. § 1227(a)(2)(A)(iii) on the theory that indecent solicita-
tion of a child constitutes sexual abuse of a minor and so is an
aggravated felony. 2 DHS later added an additional basis for
removability based on 8 U.S.C. § 1101(a)(43)(U)’s definition of
“aggravated felony” to include an attempt to commit an of-
fense that constitutes an aggravated felony.
The issued notice to appear did not include a date and
time of the initial agency hearing and stated that it would oc-
cur on a date and time to be set. On April 18, 2003, the immi-
gration court issued Hernandez-Alvarez a notice of hearing
informing him that the hearing would take place on April 22,
2003.
Hernandez-Alvarez appeared with counsel at the April 22,
2003 hearing and at a subsequent hearing held on May 8, 2003.
He moved to terminate his removal proceedings on the
grounds that his conviction under 720 ILCS 5/11-6 was not an
aggravated felony. The IJ disagreed and issued a written de-
cision ordering Hernandez-Alvarez’s removal. The IJ relied
on 8 U.S.C. § 1101(a)(43)(U), which defines “aggravated fel-
ony” to include an attempt to commit any substantive offense
listed in § 1101(a)(43), including the sexual abuse of a minor.
See § 1101(a)(43)(A). The IJ determined that, regardless of
whether Hernandez-Alvarez’s conviction could be
2 The notice to appear alternatively charged Hernandez-Alvarez as
being removable under 8 U.S.C. § 1227(a)(2)(E)(i) on the theory that inde-
cent solicitation of a minor constitutes child abuse. The IJ did not rule on
this basis of removability and so we will not discuss it further.
No. 20-1459 5
considered “sexual abuse of a minor” under 8 U.S.C.
§ 1101(a)(43)(A), “his conviction clearly qualifies as an attempt
to commit sexual abuse of a minor” because he intended to
engage in sexual abuse of a minor and took a substantial step
towards committing that criminal act.
Hernandez-Alvarez appealed his removal to the Board.
On January 9, 2004, the Board adopted the IJ’s rationale and
denied his appeal. Hernandez-Alvarez then moved for the
Board to reconsider, but before it could reach his motion, he
was removed to Mexico. The Board subsequently determined
that his removal constituted a withdrawal of his motion under
8 C.F.R. § 1003.2(d) and did not rule on the merits.
Hernandez-Alvarez filed a petition for review of the
Board’s decision to uphold his removal, which we denied.
Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. 2005). He
argued that his solicitation conviction did not qualify as an
attempt to commit sexual abuse of a minor because the person
solicited was an adult investigator rather than a child. Id. at
765. We disagreed, reasoning that solicitation is “a partially
completed offense similar to an attempt” and so Hernandez-
Alvarez’s conviction falls within the definition of “sexual
abuse of a minor.” Id. at 766. Even though his offense did not
involve an actual minor, we determined that impossibility did
not preclude Hernandez-Alvarez’s conviction from being
characterized as an aggravated felony because under both Il-
linois and federal law, “[t]he impossibility of completing the
offense attempted is not a defense.” Id. at 766–67 (citation
omitted).
6 No. 20-1459
B. Motion to Reopen and Reconsider
Fifteen years later, on May 3, 2019, Hernandez-Alvarez
filed a motion to reopen and reconsider with the Board based
on two recent Supreme Court decisions. In Esquivel-Quintana,
the Court addressed the question of “whether a conviction
under a state statute criminalizing consensual sexual inter-
course between a 21-year-old and a 17-year-old qualifies as
sexual abuse of a minor” under the Immigration and Nation-
ality Act and held that “it does not.” 137 S. Ct. at 1567. Because
“the generic federal definition of sexual abuse of a minor re-
quires that the victim be younger than 16,” the state statute at
issue did “not categorically fall within that definition” and so
“a conviction pursuant to it is not an aggravated felony under
§ 1101(a)(43)(A).” Id. at 1568. Hernandez-Alvarez argued that
just like the state statute at issue in Esquivel-Quintana, the Illi-
nois statute he violated encompassed conduct that fell outside
the generic federal definition of sexual abuse of a minor be-
cause it included 16-year-olds in its definition of “child.” See
720 ILCS 5/11-6(b). Thus, his conviction should not have been
considered an aggravated felony.
In Pereira, the Supreme Court examined a provision that
allows nonpermanent residents who have accrued 10 years of
continuous physical presence in the United States to be eligi-
ble for cancellation of their removal. According to the “stop-
time rule,” the “period of continuous physical presence is
‘deemed to end … when the alien is served a notice to ap-
pear.’” 138 S. Ct. at 2109 (quoting 8 U.S.C. § 1229b(d)(1)(A)).
The Court determined that a notice to appear that failed to
specify the time or place of the removal proceedings was in-
sufficient to trigger the stop-time rule. Id. at 2110. Hernandez-
Alvarez contended that, because his notice to appear did not
No. 20-1459 7
include the time or place, it was defective and so the immigra-
tion court lacked jurisdiction to conduct removal proceedings
in his case.
Hernandez-Alvarez acknowledged that a motion to recon-
sider generally must be filed within 30 days of a final admin-
istrative order of removal, 8 U.S.C. § 1229a(c)(6)(B), and a mo-
tion to reopen generally must be filed within 90 days. 8 U.S.C.
§ 1229a(c)(7)(C)(i). Nonetheless, Hernandez-Alvarez argued
that the Board should consider his statutory motion to recon-
sider and reopen timely because equitable tolling of the time
and numeric limitations was warranted. Alternatively, he
contended that the Board should invoke its authority to re-
consider and reopen his removal proceedings sua sponte be-
cause he would suffer manifest injustice if its prior decision
was allowed to stand.
The Board denied Hernandez-Alvarez’s motion to recon-
sider and reopen. Regarding his statutory motion to recon-
sider its 2004 decision, the Board determined that equitable
tolling was not warranted. The Board acknowledged that Her-
nandez-Alvarez had submitted a timely motion to reconsider
in 2004, which it deemed withdrawn after he was removed. In
2010, we determined that the Board has jurisdiction to con-
sider motions even after an alien has been removed. Marin-
Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010). Nonetheless,
the Board noted that nine years had elapsed between our de-
cision in Marin-Rodriguez and Hernandez-Alvarez’s motion to
reconsider, and so equitable tolling was not warranted be-
cause Hernandez-Alvarez had failed to show he diligently
pursued his rights. The Board also stated that even if it were
to reach the merits of Hernandez-Alvarez’s motion to
8 No. 20-1459
reconsider, it was not convinced of any error in its application
of the law at that time.
The Board then considered Hernandez-Alvarez’s motion
to reopen proceedings based on the Supreme Court’s deci-
sions in Esquivel-Quintana and Pereira. Regarding his argu-
ment based on Esquivel-Quintana, the Board declined to equi-
tably toll the filing deadline. It noted that the Court’s decision
in Esquivel-Quintana had occurred almost two years before
Hernandez-Alvarez had submitted his motion and he had
failed to show he exercised due diligence. Regarding his ar-
gument based on Pereira, the Board did not reach the issue of
timeliness. Rather, it concluded our recent decision in Ortiz-
Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), foreclosed his ar-
gument that the defective notice to appear stripped the immi-
gration court of jurisdiction.
The Board further declined to invoke its sua sponte author-
ity to reopen Hernandez-Alvarez’s removal proceedings. It
noted that it only sparingly invokes its sua sponte authority
and views it as a remedy reserved for truly exceptional situa-
tions. The Board stated that after considering the circum-
stances presented and Hernandez-Alvarez’s arguments, it did
not find the situational so exceptional that it warranted reo-
pening the removal proceedings. Hernandez-Alvarez then
submitted a timely petition for review of the Board’s decision.
II. Discussion
In his petition, Hernandez-Alvarez challenges the denial
of his motion to reconsider and reopen on several grounds.
He argues that the Board should have found his statutory mo-
tion to reconsider to be timely because it relates back to his
2004 motion. Alternatively, he asserts that the Board erred
No. 20-1459 9
when it determined that his motion to reconsider did not war-
rant equitable tolling. He further contends that the Board
erred when it denied his statutory motion to reopen, given
that equitable tolling was warranted, and the Board did not
consider whether he was prejudiced by his defective notice to
appear. Lastly, he argues that the Board committed legal error
when it declined to invoke its authority to reopen proceedings
sua sponte.
A. Statutory Motion to Reconsider
We first turn to the Board’s denial of Hernandez-Alvarez’s
statutory motion to reconsider. “A motion to reconsider con-
tends that the original decision was somehow erroneous” and
“asks [the Board] to revisit its decision in light of ‘additional
legal arguments, a change of law, or an argument that was
overlooked earlier.’” Victor v. Holder, 616 F.3d 705, 709 (7th Cir.
2010) (quoting Patel v. Gonzales, 442 F.3d 1011, 1015 (7th Cir.
2006)). “[I]n considering such motions, the Board places itself
‘back in time and consider[s] the case as though a decision in
the case on the record before [it] had never been entered.’”
Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007) (quot-
ing In re Cerna, 20 I. & N. Dec. 399, 402 (B.I.A. 1991)). Gener-
ally, an alien is limited to one motion to reconsider that must
be filed within 30 days of the date of entry of a final adminis-
trative order of removal. See 8 U.S.C. § 1229a(c)(6)(A), (B). We
review the Board’s denial for abuse of discretion. Vyloha v.
Barr, 929 F.3d 812, 815 (7th Cir. 2019). “The Board has abused
its discretion when its decision was made without a rational
explanation, inexplicably departed from established policies,
or rested on an impermissible basis, such as invidious dis-
crimination against a race or particular group.” Id. (internal
quotation marks and citation omitted).
10 No. 20-1459
Hernandez-Alvarez contends that the Board erred in
denying his motion to reconsider for two reasons. He asserts
that the Board should have considered his motion timely be-
cause the 2019 motion relates back to the still-pending 2004
motion. He further contends that even if his 2019 motion does
not relate back to the 2004 motion and is therefore untimely,
the Board abused its discretion when it determined that equi-
table tolling was not warranted. We address each of these ar-
guments.
1. Relation Back
Hernandez-Alvarez contends that, because the Board
never reached the merits of his 2004 motion to reconsider, his
2019 motion should be considered timely because it relates
back to the still-pending 2004 motion. There is no dispute that
Hernandez-Alvarez timely filed a motion to reconsider in
2004. Once he was removed, however, the Board determined
that his motion had been withdrawn under 8 C.F.R.
§ 1003.2(d) and did not reach the merits. In 2010, we deter-
mined that “[a]s a rule about subject-matter jurisdiction,
§ 1003.2(d) is untenable” and the Immigration and National-
ity Act authorizes the Board to reconsider its own decisions
regardless of whether the alien is still present in the United
States. Marin-Rodriguez, 612 F.3d at 593–94. Relying on Marin-
Rodriguez, Hernandez-Alvarez argues that the Board did not
possess the authority to withdraw his 2004 motion to recon-
sider based on his removal and so that motion remains pend-
ing. Thus, according to Hernandez-Alvarez, his 2019 motion
to reconsider is timely because it relates back to his still-pend-
ing 2004 motion.
Hernandez-Alvarez failed to exhaust his administrative
remedies because he did not raise this argument before the
No. 20-1459 11
Board, and so we need not reach its merits. “A failure to ex-
haust administrative remedies usually forecloses a petitioner
from raising an issue in federal court that was not raised be-
fore the immigration tribunal.” Duarte-Salagosa v. Holder, 775
F.3d 841, 846 (7th Cir. 2014). To properly exhaust his reme-
dies, “a petitioner has the burden of raising th[e] legal point
before the Board.” Garcia-Martinez v. Barr, 921 F.3d 674, 678
(7th Cir. 2019). Hernandez-Alvarez argued to the Board that
his 2019 motion was timely because equitable tolling was war-
ranted, not because it related back to his still-pending 2004
motion. He thus did not adequately exhaust the issue.
Hernandez-Alvarez makes two unpersuasive arguments
as to why we should find that he exhausted his administrative
remedies. First, he argues that he raised the issue before the
Board because his motion cited Marin-Rodriguez and argued
that the Board had jurisdiction to consider his 2019 motion
despite his removal from the United States. Yet this brief ref-
erence to Marin-Rodriguez occurs in a section labeled “Stand-
ards for a Motion to Reconsider and a Motion to Reopen Re-
moval Proceedings”—13 pages before he argues that his mo-
tion is timely—and falls far short of arguing that his 2019 mo-
tion is timely because it relates back to his still-pending 2004
motion. Alternatively, Hernandez-Alvarez argues that even if
he did not raise the issue to the Board, the Board nevertheless
addressed the status of his 2004 motion to reconsider because
it referenced Marin-Rodriguez when denying his 2019 motion.
In support for this argument, Hernandez-Alvarez relies on
two unpublished opinions in which we concluded that “when
the [Board] sua sponte denies relief on a ground not raised by
the alien, the failure to raise that argument to the [Board] does
not preclude our review.” Cisneros-Cornejo v. Holder, 330 F.
App’x 616, 618 (7th Cir. 2009); see also Mei Mei Liu v. Mukasey,
12 No. 20-1459
264 F. App’x 530, 533 (7th Cir. 2008). Nonetheless, here the
Board’s decision did not engage with the precise question of
whether Marin-Rodriguez means that Hernandez-Alvarez’s
motion—which was administratively withdrawn six years be-
fore we decided Marin-Rodriguez—was still pending or
whether his motion to reconsider related back to it.
Accordingly, Hernandez-Alvarez failed to exhaust his
remedies before the Board for his argument that his 2019 mo-
tion is timely because it relates back to his 2004 motion, and
“consequently he failed to preserve his right to judicial re-
view.” Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008)
2. Equitable Tolling
Hernandez-Alvarez alternatively argues that the Board
abused its discretion when it determined that his motion to
reconsider did not warrant equitable tolling. While generally
an alien has 30 days to file a motion to reconsider, this filing
deadline is a “non-jurisdictional claim-processing rule[], sub-
ject to the doctrine of equitable tolling.” Ramos-Braga v. Ses-
sions, 900 F.3d 871, 876 (7th Cir. 2018) (per curiam). “In order
to succeed on a claim for equitable tolling, a petitioner must
demonstrate due diligence.” El-Gazawy v. Holder, 690 F.3d 852,
859 (7th Cir. 2012). This is satisfied “if the petitioner can show
that ‘he could not have reasonably been expected to file ear-
lier.’” Yusev v. Sessions, 851 F.3d 763, 767 (7th Cir. 2017) (quot-
ing El-Gazawy, 690 F.3d at 859).
The Board determined that Hernandez-Alvarez’s motion
to reconsider did not merit equitable tolling because nine
years elapsed between our decision in Marin-Rodriguez—
which overturned the basis on which the Board had previ-
ously deemed his motion withdrawn—and when he filed his
No. 20-1459 13
2019 motion. And because he failed to show that he diligently
pursued his rights during that time, equitable tolling was not
warranted. According to Hernandez-Alvarez, even though
our decision in Marin-Rodriguez overturned the basis on
which the Board had deemed his 2004 motion withdrawn, he
could not have reasonably been expected to file the motion to
reconsider before the Court’s 2017 decision in Esquivel-Quin-
tana because caselaw in the Seventh Circuit did not support
his underlying argument.
Even assuming that Hernandez-Alvarez could not have
been reasonably expected to bring his motion prior to the de-
cision in Esquivel-Quintana, he nevertheless fails to show that
the Board abused its discretion in determining that equitable
tolling was not warranted. In resolving his motion to reopen,
the Board determined that Hernandez-Alvarez had failed to
show that he had exercised due diligence in bringing his mo-
tion, given that he did not file his motion for almost two years
after the Court’s decision in Esquivel-Quintana. On appeal,
Hernandez-Alvarez concedes it took him and his attorney a
“long period of time” to prepare and file his motion, but ar-
gues that equitable tolling is nonetheless warranted because
geographic separation and the passage of time made the mo-
tion difficult to prepare. Other than these conclusory asser-
tions, Hernandez-Alvarez fails to offer any evidence that he
diligently pursued his rights in the two years following Es-
quivel-Quintana. See El-Gazawy, 690 F.3d at 860 (upholding the
Board’s determination that a petitioner did not demonstrate
due diligence when he failed “to offer any support for his
claim that he acted diligently to preserve his rights” during a
two-year period). We thus cannot conclude that the Board
abused its discretion in determining that equitable tolling was
not warranted.
14 No. 20-1459
B. Statutory Motion to Reopen
We next turn to the Board’s denial of Hernandez-Alvarez’s
statutory motion to reopen. Unlike motions to reconsider,
“[m]otions to reopen ask the [Board] to reconsider its earlier
decision based on ‘facts or evidence not available at the time
of the original decision.’” Mungongo, 479 F.3d at 534 (quoting
Patel, 442 F.3d at 1015). While a motion to reopen generally
must be filed within 90 days of the date of entry of a final ad-
ministrative order, 8 U.S.C. § 1229a(c)(7)(C)(i), this filing
deadline can be equitably tolled. Yuan Gao v. Mukasey, 519
F.3d 376, 377 (7th Cir. 2008). Like motions to reconsider, we
review the Board’s denial of a motion to reopen for abuse of
discretion. Patel, 442 F.3d at 1016.
Hernandez-Alvarez based his motion to reopen on the
Court’s decisions in Esquivel-Quintana and Pereira. As dis-
cussed above, the Board did not abuse its discretion in deter-
mining that the motion was untimely and did not merit equi-
table tolling. Unlike his motion to reopen based on Esquivel-
Quintana, the Board reached the merits of his Pereira claim,
and determined that our decision in Ortiz-Santiago foreclosed
his argument that the immigration court did not have juris-
diction. In Ortiz-Santiago, we held that the requirement that a
notice to appear include the date and time of the removal pro-
ceeding is not jurisdictional in nature and is instead a claims-
processing rule. 924 F.3d at 965. Relief based on a defective
notice to appear is available only “for those who make timely
objections, as well as those whose timing is excusable and
who can show prejudice.” Id. On appeal, Hernandez-Alvarez
contends that the Board failed to assess his argument that his
timing was excusable and he suffered prejudice from the
No. 20-1459 15
defective notice. He asserts we must remand the case to the
Board so it can determine these issues in the first instance.
Even assuming that Hernandez-Alvarez’s late objection is
excusable, he has not put forth any plausible argument as to
why he was prejudiced by his defective notice to appear. Her-
nandez-Alvarez argues that the prejudice to him is “obvious”
because, under Esquivel-Quintana, he was not convicted of an
aggravated felony and so was not removable. But this argu-
ment misses the mark because Ortiz-Santiago’s prejudice in-
quiry does not focus on prejudice derived from the removal
proceedings generally; rather, it focuses specifically on preju-
dice suffered at the time of the hearing. Accordingly, we look,
for example, to whether the defects in the notice to appear de-
prived the alien of the ability to attend or prepare for the hear-
ing, including the ability to secure counsel. See Chen v. Barr,
960 F.3d 448, 451 (7th Cir. 2020) (determining that respondent
could not show prejudice because she did not “contend she
lacked actual knowledge of the time and place for the hear-
ing” and she appeared with counsel); Vidinski v. Barr, 790 F.
App’x 816, 820 (7th Cir. 2019) (noting that it was “unlikely that
Vidinski could establish prejudice” given that he received the
notice to appear, contested the charge of removability, at-
tended the hearing, and was represented by a lawyer); Ortiz-
Santiago, 924 F.3d at 964–65 (“This is not a case in which the
Notice of Hearing never reached him, or it came so quickly
that he had trouble preparing for the hearing.”). While Her-
nandez-Alvarez’s notice to appear initially lacked the date
and time of the initial agency hearing, he received a notice of
hearing shortly afterward that included the required infor-
mation. He secured counsel before attending the hearing, and
did not argue that he “was prejudiced by the delivery of the
16 No. 20-1459
statutory information in two documents rather than one,” ei-
ther to the Board or on appeal. Chen, 960 F.3d at 451.
Despite his failure to advance any relevant arguments that
he was prejudiced by the defective notice to appear, Hernan-
dez-Alvarez urges us to remand the case to the Board so that
it can determine whether he satisfies Ortiz-Santiago’s inquiry
in the first instance. We decline to do so. When a petitioner
fails to raise any plausible argument as to why he was preju-
diced, we have determined that remand is unnecessary. Chen,
960 F.3d at 451 (declining to remand where the petitioner
failed to advance a plausible argument that she suffered prej-
udice); Shojaeddini v. Barr, 781 F. App’x 545, 548 (7th Cir. 2019)
(denying a petition for review rather than remanding where
the petitioners did not show, or even attempt to show, “that
they were prejudiced by having received the time and date of
their hearing in a separate document”); Ortiz-Santiago, 924
F.3d at 965 (determining that no “discernable prejudice” oc-
curred without remanding to the Board). Accordingly, re-
mand is unnecessary.
C. Motion for the Board to Reopen Proceedings Sua Sponte
Finally, we turn to Hernandez-Alvarez’s contention that
the Board erred by declining to reopen proceedings sua sponte.
The Board has discretion to reopen a case on its motion at any
time, 8 C.F.R. § 1003.2(a), but only invokes this power “spar-
ingly, treating it not as a general remedy for any hardships
created by enforcement of the time and number limits in the
motions regulations, but as an extraordinary remedy reserved
for truly exceptional situations.” Matter of G-D-, 22 I. & N. Dec.
1132, 1133-34 (BIA 1999). Our review of the Board’s denial to
reopen proceedings sua sponte is very narrow—“[b]ecause no
law defines what situations will qualify as ‘exceptional,’ we
No. 20-1459 17
have held that the merits of these denials are unreviewable.”
Salazar-Marroquin, 969 F.3d at 817. Our review of the Board’s
denial is limited to assessing “constitutional transgressions
and other legal errors that the Board may have committed in
disposing of such a motion.” Fuller, 914 F.3d at 519. Such legal
errors include whether the Board’s “stated rationale for deny-
ing such a motion indicates that it ignored evidence that the
alien tendered in support of his request” or misapprehended
the basis for the motion. Id. at 519, 522.
The Board concluded that Hernandez-Alvarez’s situation
was not exceptional enough to warrant exercising its author-
ity to reopen his proceedings. On appeal, Hernandez-Alvarez
asserts that the Board committed legal error in declining to
reopen his case sua sponte because it stated that even if it were
to reach the merits of his statutory motion to reconsider, it was
“not convinced of any error in [its] application of the law at
that time.” Hernandez-Alvarez interprets this statement to
mean that the Board determined that Esquivel-Quintana
would not change the outcome in his case, which he argues is
legally erroneous because Esquivel-Quintana compels the con-
clusion that his solicitation conviction was not an aggravated
felony.
Hernandez-Alvarez’s argument misinterprets the Board’s
decision. A close reading of the decision reveals that the Board
did not reach the question of whether Esquivel-Quintana ap-
plies to Hernandez-Alvarez’s conviction. In his motion to the
Board, Hernandez-Alvarez argued that the Board had erred
when it found that his conviction qualified as an aggravated
felony. In making this argument, he first argued why Esquivel-
Quintana compels the conclusion that his conviction should
not have been considered an aggravated felony. Second, he
18 No. 20-1459
discussed the prior decisions of the IJ, the Board, and the Sev-
enth Circuit and contended that they were wrong when decided
based on caselaw that existed at that time. He cited to cases
like People v. Scott, 318 Ill. App. 3d 46 (2000), and Taylor v.
United States, 495 U.S. 575, 599–601 (1990), and made several
arguments as to why his conviction should not have been con-
sidered an aggravated felony even before the Court decided
Esquivel-Quintana. It was this latter argument that the Board
referenced when it stated that it was “not convinced of any
error in [its] application of the law at that time,” as evidenced
by its citation to the portion of Hernandez-Alvarez’s motion
that focused on the state of the caselaw in 2004, not the portion
that discussed Esquivel-Quintana’s application to his case.
Hernandez-Alvarez’s argument that the Board legally erred
by determining that Esquivel-Quintana did not apply to his
case therefore fails, because the Board made no such determi-
nation. The Board’s decision does not suggest that it failed to
consider Hernandez-Alvarez’s arguments concerning the im-
port of Esquivel-Quintana when it determined it did not find
an exceptional situation warranting the sparing invocation of
a remedy it reserves for truly exceptional situations.
Hernandez-Alvarez further argues that the Board erred in
not invoking its inherent authority to reopen his case because
Esquivel-Quintana means that the Board got it wrong in 2004,
and so his case is by definition “exceptional.” Hernandez-Al-
varez relies on a concurrence from Matter of J-J-, 21 I. & N. Dec.
976, 985 (BIA 1997) (Villageliu, Board Member, concurring),
which stated that “exceptional situations … must include
cases where the courts have reversed the underlying basis for
the Board’s legal conclusions in a case after the 30-day limita-
tion for motions to reconsider has expired.” Apart from this
concurrence—whose position was not reflected in the
No. 20-1459 19
majority—Hernandez-Alvarez has provided no caselaw to
support his contention that the Board was compelled to exer-
cise its inherent authority to reopen his case.
The Board’s explanation for why it declined to reopen the
proceedings sua sponte did not contain or imply any legal er-
ror. “Judicial review accordingly is unavailable.” Malukas v.
Barr, 940 F.3d 968, 971 (7th Cir. 2019).
III. Conclusion
To the extent that the Board denied the statutory motion
to reconsider and reopen, the petition for review is denied. To
the extent that the Board declined to reopen the proceedings
sua sponte, the petition for review is dismissed for want of ju-
risdiction.