Umanzor Escobar: A Missing Appearance Form Left the Reopening Motion Late

A motion delivered before a deadline can still be rejected for a filing defect. In Umanzor Escobar v. Blanche, No. 22-2068 (9th Cir. Oct. 23, 2026), counsel attempted to reopen an in-absentia removal order without the required notice of appearance. The corrected submission came after the 180-day period. The Ninth Circuit upheld the agency’s timeliness ruling and denied the petition for review.

The unpublished memorandum applies Ninth Circuit filing and administrative-exhaustion rules to this record. Under Rule 36-3, it is nonprecedential except as that rule provides. Its practical value lies in the sequence of the attempted filing, rejection notice and corrected submission—and in the arguments the petitioner had actually presented to the agency.

The attempted filing and the corrected filing fell on different sides of the deadline

The immigration judge ordered Karen Gabriela Umanzor Escobar removed in her absence on July 3, 2019. She later sought reopening and rescission based on exceptional circumstances. That statutory route required a motion within 180 days after the removal order.

Counsel attempted to file the motion on Friday, December 27, 2019, without the required Form EOIR-28 notice of appearance. On the next business day, Monday, December 30—the final day of the 180-day period—the immigration court gave notice that it had rejected the submission for that omission and mailed the rejection notice to counsel. Counsel did not attempt to refile with the appearance form until January 10, 2020.

Those were different events. The first attempted submission did not become a properly filed motion merely because it reached the court before the deadline. The agency treated the corrected motion as late, and the appellate panel concluded that enforcing the appearance requirement on this record was not arbitrary, irrational or contrary to law.

The appearance requirement was part of a properly filed represented motion

The court read the statutory deadline together with the filing regulation. Under 8 C.F.R. section 1003.23(b)(1), the motion had to be written and signed, and a represented moving party’s motion required the appearance form. The missing document was counsel’s notice of appearance before the immigration judge, not the government’s charging document called a Notice to Appear.

The panel applied Cui v. Garland, 13 F.4th 991, 997–998 (9th Cir. 2021). In that published decision, the majority upheld rejection of a motion where counsel had not properly entered an appearance and failed to correct the problem before the filing period ended. The majority distinguished an attempted submission from an accepted filing and examined what counsel did after rejection.

Cui involved additional procedural complications, including an improper direct Board appeal and a failure to substitute counsel. Judge Paez concurred in part and dissented in part. He agreed with denial of the petition concerning the 2016 motion but disputed the treatment of the earlier attempted filing and the clerk’s filing-location rationale. The later Umanzor Escobar panel applied the majority’s filing rule to the missing-appearance-form problem before it.

The timing of the rejection notice did not cure the late correction

Umanzor Escobar tried to distinguish Cui because her attorney received the rejection notice after the 180-day period had ended. In Cui, counsel had time remaining after the notice was mailed. That difference addressed a concrete difficulty: Whether the filer learned of the defect while correction was still possible within the original period.

The panel’s response focused on the timing of the initial attempt. Counsel had waited until the Friday before the Monday deadline, creating the risk that a rejection notice would arrive too late to allow correction. The petitioner offered no reason counsel could not have tried to file earlier. She also did not bring an ineffective-assistance claim. Those features of the presentation mattered to the court’s rejection of the distinction.

The tolling and asylum-filing arguments had not been presented to the agency

The petitioner also argued that the agency should have used asylum-application filing rules as guidance and should have equitably tolled the deadline because of her circumstances. But she had not raised either argument before the immigration agency. The Ninth Circuit therefore declined to consider them under the administrative-exhaustion requirement.

This was a preservation problem, separate from whether those arguments could succeed on a developed record. A federal petition for review is not the first place to introduce the legal ground for excusing a late motion. The court relied on exhaustion authorities addressing the need to put the agency on notice of the particular argument; an account of difficult circumstances is not necessarily the same thing as asking for equitable tolling.

The distinction also matters when reading the court’s discussion of the 180-day statute. The panel resolved the actual filing problem and declined to consider the unexhausted tolling theory. In Cui, the court separately considered a tolling request and found the required showing absent on that different record. Each decision must be read with the argument and evidence actually before it.

The court did not need to review the agency’s alternative exceptional-circumstances finding

The agency had also found that Umanzor Escobar failed to establish exceptional circumstances beyond her control causing the missed hearing. That was an actual alternative ground for denying her motion. Because untimeliness independently supported the result, the Ninth Circuit expressly declined to address that alternative finding. The petition was denied on the filing and preservation analysis.

Review the filing record and the practitioner’s actual role

For a present problem, obtain the original motion packet, the court’s rejection notice, the corrected submission, delivery or electronic records, and the appearance documents. Identify the original legal deadline and when the corrected motion was accepted, rather than rely on a single statement that something was “filed.” If relief from lateness is requested, counsel needs the facts supporting that ground and the record showing where the argument was raised.

Use current form instructions for the actual role. EOIR’s practitioner-of-record guidance addresses Form EOIR-28 before the immigration court. Its separate document-assistance guidance addresses Form EOIR-61 for an otherwise unrepresented person; that limited assistance does not make the practitioner counsel of record. This case involved a represented motion missing the required appearance form.

Our guide to a rejected immigration-court filing explains how to separate a submission problem, an acceptance record and the original deadline. The immigration defense team can review those records alongside the order and the relief being requested.