Yadav: A Valid Marriage After a Removal Order Did Not Reopen the Case

He had a United States citizen wife. He had an approved family petition. He also had a removal order more than ten years old.

Amit Yadav asked the Board of Immigration Appeals, the appellate body of the immigration court system, to reopen his case so he could apply for a green card through his marriage. He had missed the ordinary deadline by about a decade, so he asked the Board to use a discretionary power to reopen a case on its own. The Board refused.

Many families live inside this same gap: a real marriage, an approval notice from U.S. Citizenship and Immigration Services (USCIS) and an old order that still has legal force. In Matter of Amit Yadav, 29 I&N Dec. 438 (BIA 2026), a published decision issued February 5, 2026, by a three-member panel with no separate opinion, the Board wrote: “A respondent’s valid marriage to a United States citizen entered into after a removal order does not constitute an exceptional situation warranting sua sponte reopening of removal proceedings.” The order denied his motion, which left the removal order in place.

The ruling makes the usual late request very hard to win for families in this position, and a California reader has little chance of getting a federal court to review such a refusal. Other routes exist, but each has its own conditions, and the wrong one can cost years.

Ten years after the order, a marriage and an approved petition

The Board’s account is short and its dates carry the case. Yadav entered the United States in 2008 and was placed in removal proceedings after he overstayed his visa. On January 16, 2013, an immigration judge denied his applications for relief and ordered him removed. The Board dismissed his appeal on October 7, 2014, and that dismissal made the order final within the agency. He then filed a petition for review, the request that asks a federal appeals court to examine a removal order. The Board reports that the petition was denied in 2015, in a First Circuit decision we know only from the Board’s citation.

The family facts came later. Yadav married his wife in 2017. In 2020, USCIS approved a Form I-130, the Petition for Alien Relative, filed on his behalf. That form asks USCIS to recognize a family relationship. It gives no status by itself, as our guide to approved petitions and removal cases explains.

“More than 10 years after our decision,” the Board wrote, he filed a motion to reopen, a request to restart a closed case, so that he could apply for adjustment of status, the process for becoming a permanent resident without leaving the country. The opinion does not explain why he needed reopening, but the regulations do: Once a person has been placed in removal proceedings, other than as an arriving traveler, 8 C.F.R. § 1245.2(a)(1)(i) gives the immigration judge “exclusive jurisdiction” over an adjustment application. Reopening also matters because, as the Ninth Circuit explained in Bonilla v. Lynch, No. 12-73853, 840 F.3d 575, 589 (9th Cir. 2016) (amended Oct. 20, 2016), a granted motion vacates, meaning cancels, the final order.

Congress generally allows one motion to reopen, filed within 90 days of the final order, under 8 U.S.C. § 1229a(c)(7). The statute makes exceptions for some asylum claims based on changed country conditions, certain orders entered when a person missed a hearing, and certain abuse survivors. According to the Board, Yadav “does not allege that his motion falls within an exception to the 90-day deadline.” He asked instead for reopening “sua sponte in the interest of justice.”

The power he asked the Board to use

“Sua sponte” is Latin for “on its own motion.” When Yadav was decided, 8 C.F.R. § 1003.2(a) said the Board “may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” In practice the person files a request and calls it sua sponte, but no one has a right to the result. As the Board put it four months after Yadav, in a footnote to Matter of Herrera-Nunez, 29 I&N Dec. 695, 695 n.1 (BIA 2026), “‘Sua sponte’ does not refer to a right of a party to seek reopening.”

The limit on this power has been in place since soon after Congress and the agency set the 90-day rule. In Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997), a motion arrived two days late. The Board said its own-motion power allows reopening “in exceptional situations” but “is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.”

Two years later, the full Board gave that phrase content in Matter of G-D-, 22 I&N Dec. 1132, 1133–35 (BIA 1999), over a dissent. The power, it said, is “an extraordinary remedy reserved for truly exceptional situations.” Its example was a change in the law so fundamental that a person suddenly became eligible for relief. A routine new precedent would not do.

The closest forerunner came in 2020. A woman ordered removed in 2004 filed a new motion to reopen in 2019, based in part on a petition her husband had filed for U status, a visa category for crime victims and certain relatives. Matter of H-Y-Z-, 28 I&N Dec. 156, 161 (BIA 2020), said that equities “acquired while she remained illegally in the United States after being ordered removed” generally do not qualify. “Equities” here means the positive facts that argue for letting someone stay, such as family ties. But she had another problem: a final finding that she filed a frivolous asylum application, which by statute barred her from any immigration benefit. H-Y-Z- could have been read as a case about that bar. Yadav applies the equities reasoning where the Board identified no obstacle except the passage of time.

Why the Board said no

The Board’s analysis takes about a page and gives four reasons, none of which turns on whether the marriage was genuine. It called the marriage “valid” in the sentence that decides the case.

Finality. The time and number limits exist, the Board said quoting J-J-, “to bring finality to immigration proceedings and to redress the problem of abuses resulting from the filing of successive or frivolous motions.” Broad use of the own-motion power, in words from G-D-, “would substantially erode” those limits. G-D- said that about treating every small change in case law as a reason to reopen. Yadav carries the same concern to family equities. The Board also quoted its 2025 decision on administrative closure, a temporary suspension of a case, Matter of B-N-K-, 29 I&N Dec. 96, 99, for “an important public interest in the finality of immigration proceedings.”

Remaining after an order. Reopening on equities built up during “[t]he continued presence of an alien lawfully deemed removable,” the Board wrote, rewards a “continuing violation of United States law.” Those phrases appear in Nken v. Holder, No. 08-681, 556 U.S. 418, 436 (2009), which set the standard for pausing a removal while a court reviews it. Nken said the public has an interest in prompt removal. It was not a reopening case. An older Supreme Court decision is closer, although the Board did not cite it. In INS v. Rios-Pineda, No. 83-2032, 471 U.S. 444, 450 (1985), the Court upheld a refusal to reopen for a family whose required seven years of residence accrued while appeals the Board found meritless were pending. The Attorney General could “legitimately avoid creating a further incentive for stalling by refusing to reopen” for people in that position. Yadav’s marriage came after his appeals had ended, so the fit is partial.

Fairness to people who left. Reopening on such equities, the Board said, is “fundamentally unfair to other aliens who cannot acquire such equities because they follow the immigration laws or comply with lawful orders of removal.” For support it cited Justice Kavanaugh’s solo concurrence in Noem v. Vasquez Perdomo, No. 25A169, 146 S. Ct. 1, 5 (2025), an order about immigration stops in the Los Angeles area. There, he was weighing the interest of people here unlawfully in avoiding questioning, and he wrote that they were “jumping in front of those noncitizens who follow the rules and wait in line to immigrate into the United States through the legal immigration process.” His subject was street stops. A spouse of a citizen is also an “immediate relative,” a category 8 U.S.C. § 1151(b)(2)(A)(i) places outside the annual numerical limits, so in our view the image of a line fits this group imperfectly. But the Board’s stated point is wider: A person who obeyed the order and left could not have built these equities here.

The Board’s role. The Board described itself as “an administrative court of law rather than a court of equity,” citing Matter of O-R-E-, 28 I&N Dec. 330, 336 (BIA 2021). That case rejected laches, a defense based on the government’s delay in bringing a case. Here the Board used the idea to explain why it should use a discretionary power sparingly.

The strongest answer to all this appears nowhere in the opinion, which records only that Yadav asked for reopening “in the interest of justice.” It is that Congress treats a citizen’s spouse specially. 8 U.S.C. § 1255 lets a person who was inspected and admitted adjust status, and § 1255(c) spares immediate relatives from its bars for working without permission or falling out of status. On paper, a visa overstay with an approved spousal petition is the person those provisions help. The Board’s reasoning does not dispute that. It answers a different question: May a person who stayed after a final order use that eligibility to undo the order, long after the deadline?

The rule leaves a narrow opening

The Board stated the general rule with qualifiers and the result without them. A sua sponte request based on post-order equities “generally does not establish a truly exceptional situation,” and “only a truly exceptional situation would warrant” reopening on that basis. Then comes the flat sentence about marriage. Read together, the opinion leaves the power in place but says a marriage made after the order does not by itself meet the test. By its terms the sentence addresses marriages entered after a removal order.

A later Board decision shows how it reads Yadav. Herrera-Nunez, decided June 12, 2026, involved a man ordered removed in 2015 who married a citizen in 2019. He filed a receipt notice for a pending petition, his marriage certificate, the birth certificate of his 6-year-old citizen son, a declaration and medical records for his wife, and letters from friends and co-workers. He claimed hardship to his wife and manifest injustice. The Board repeated that equities gained after an order “generally” do not qualify, said it had “reiterated this recently” in Yadav, and noted that Yadav’s petition had at least been approved. It denied the motion and denied as moot his request to pause removal, called a stay. So a child and a spouse’s medical records did not change the result either.

The opinion does not say what would be enough. G-D-’s example remains a fundamental change in the law. A California reader should treat any request built only on a later marriage, children, or years of good conduct as very unlikely to succeed.

The regulation itself has a history worth checking before filing. A 2020 rule would have largely eliminated own-motion reopening. A California federal court halted that rule in Centro Legal de la Raza v. EOIR, 524 F. Supp. 3d 919 (N.D. Cal. 2021), and a 2024 rule, 89 Fed. Reg. 46742, rewrote § 1003.2(a) to state the power again. On June 22, 2026, a federal court in Texas entered a consent judgment, one the parties agreed to, vacating that entire 2024 rule in Texas v. Department of Justice, No. 7:26-CV-00070-O, ECF 5. The judgment focuses on administrative closure and does not mention own-motion reopening. Yadav applied the regulation as it stood in 2025.

In the Ninth Circuit, review of a refusal is narrow

A petition for review from a California immigration court goes to the Ninth Circuit, and that court will usually not review a refusal to reopen sua sponte at all. Ekimian v. INS, No. 99-70322, 303 F.3d 1153, 1159 (9th Cir. 2002), held that “exceptional situations” gives a court no meaningful standard for judging the Board’s choice. The court reaffirmed that rule in Magana-Magana v. Bondi, No. 23-1887, 129 F.4th 557, 575 (9th Cir. 2025) (amended Feb. 19, 2025): “We remain bound by it, and accordingly we lack jurisdiction to review the BIA’s decision not to reopen removal proceedings sua sponte.”

There is one exception. Bonilla, 840 F.3d at 588, allows review “for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.” After Bonilla’s 1995 deportation order he married a citizen, and in 2011 he moved to reopen, claiming his lawyers had failed him. His request to extend the deadline failed because he went six years without seeking legal help. But a Supreme Court decision had changed the law for a waiver he sought, and he also asked the Board to reopen on its own. The Ninth Circuit concluded the Board had wrongly assumed he could never regain the permanent resident status the waiver required, and it sent the case back. It added that if the Board refused again on a correct legal basis, that refusal would not be reviewable.

Lona v. Barr, No. 17-70329, 958 F.3d 1225, 1234 (9th Cir. 2020), narrowed that opening. Review reaches only “legal or constitutional error that is apparent on the face of the BIA’s decision.” The court also rejected an attempt to hold the Board to its own pattern of past grants. That argument had appeared in Menendez-Gonzalez v. Barr, No. 15-73869, 929 F.3d 1113, 1118 (9th Cir. 2019), and Lona held it barred by Ekimian. Even an exceptional situation does not require reopening. Quoting Bonilla, Lona said “[t]he Board is not required ... to reopen proceedings sua sponte in exceptional situations.”

In our reading, a Board denial that cites Yadav and says the marriage is not exceptional will look like an ordinary use of discretion, which the Ninth Circuit cannot review. The available challenge is narrow: that the Board treated Yadav as stripping it of power to act at all, which would be the kind of legal mistake Bonilla reaches. Yadav’s own language, “only a truly exceptional situation would warrant” reopening, makes that a hard argument.

Routes other than asking the Board to act on its own

• A motion within 90 days of the final order. This is the right the statute gives. The motion must state new facts and attach the application for relief with supporting documents under § 1003.2(c)(1). The Board can still deny it as a matter of discretion, but in the Ninth Circuit that denial can be reviewed for abuse of discretion, as Li v. Bondi, No. 18-70278, 139 F.4th 1113, 1119–20 (9th Cir. 2025), explains. A marriage entered while proceedings are pending also faces 8 U.S.C. § 1255(e), which requires clear and convincing proof that the marriage is genuine.
• A joint motion with the government. Section 1003.2(c)(3)(iii) lifts the time and number limits for a motion “[a]greed upon by all parties and jointly filed.” It requires the Department of Homeland Security (DHS), which prosecutes removal cases, to sign on.
• A statutory exception, if one truly applies. Asylum based on changed country conditions and relief for certain abuse survivors have their own rules. Each needs its own proof.
• Equitable tolling for lawyer error. Tolling means extending a deadline for fairness reasons. In the Ninth Circuit it can apply when a lawyer’s “deception, fraud, or error” kept someone from filing, but only with due diligence, and Bonilla’s six-year gap was fatal. Yadav’s opinion reports no claim of that kind. Our guide to court review of reopening decisions explains why the type of motion matters.
• The consular path, only after careful review. Leaving under an order carries its own penalty. Under 8 U.S.C. § 1182(a)(9)(A)(ii), a person ordered removed is generally barred from admission for 10 years after departing, and a separate bar applies to long unlawful presence. A person with a final order cannot use the provisional waiver of the unlawful-presence bar unless USCIS has first granted consent to reapply, under 8 C.F.R. § 212.7(e)(4)(iv). That consent, on Form I-212, is conditional on the departure under 8 C.F.R. § 212.2(j). See our guides to Form I-212 after removal and the provisional waiver.

Two cautions apply on any path. A pending motion generally does not stop removal: Under § 1003.2(f), the order can be carried out unless a stay is specifically granted, with an exception for certain motions to reopen orders entered after a missed hearing. And the Board’s further order in Yadav warned of a civil penalty of up to $998 for each day a person willfully refuses to depart or hampers removal, and of a fine or up to two years in prison under 8 U.S.C. § 1326(a) for returning after removal or after departing under an order. An unlawful return can also bring a separate, longer inadmissibility bar.

Later developments. The Texas judgment vacating the 2024 rule was still in effect when we last checked the docket papers. On August 21, 2026, the court denied intervention by three cities and a legal-services organization (ECF 23), describing the vacated rule as having “also addressed termination, briefing schedules, background checks, and sua sponte reopening.” An appeal was filed August 28. The district court denied a stay on September 2 (ECF 30), and the Fifth Circuit denied a stay on September 29, 2026, in No. 26-10794. The Supreme Court denied a stay on October 27, 2026, in City of Baltimore v. Texas, No. 26A500.

The Board continued to recognize its own-motion authority after the Texas judgment. In Matter of M-M-L-J-, 29 I&N Dec. 843, 848–49 (BIA Aug. 18, 2026), it described that authority and declined reopening because the record showed no exceptional situation. The online federal regulation, current through November 6, 2026, also still states that the Board may reopen a case on its own motion. Before filing a late motion, check how the Texas judgment and the court orders governing your case affect that request.