Full Opinion

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 25-2528 ROBERT SAVIO PANTON, Petitioner, v. TODD BLANCHE, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A 031-257-320 ____________________ ARGUED OCTOBER 26, 2026 — DECIDED NOVEMBER 10, 2026 ____________________ Before EASTERBROOK, SCUDDER, and LEE, Circuit Judges. EASTERBROOK, Circuit Judge. Robert Panton came to the United States in 1970 as a lawful permanent resident. He was four years old. During the late 1980s he participated in a large- scale drug conspiracy, for which he was convicted in 1992 and sentenced to life imprisonment. In 2020 a district court granted Panton’s motion for compassionate release. On the day Panton walked out of prison, immigration of- ficials began the process of removing him to Jamaica. He ar- gued (based on the Convention Against Torture) that he 2 No. 25-2528 would face harm in that nation, but an Immigration Judge dis- agreed with that contention and ordered his removal. Com- pare 8 U.S.C. §1231(b)(3)(B) (persons sentenced to five or more years are ineligible for asylum) with 8 C.F.R. §1208.17 (Convention Against Torture remains available). We denied Panton’s petition for review of the removal order. Panton v. Garland, No. 21-2346 (7th Cir. June 15, 2023) (nonprecedential disposition). Panton had one more option: a U visa, available to victims of crime who assist law enforcement. 8 U.S.C. §1101(a)(15)(U). Because he was not arrested at the same time as many of his co-conspirators, a belief arose that Panton had sold out his confederates. He was shot, survived, added to the list of de- fendants, convicted, and served more than 25 years in prison. Pointing to efforts to reform his life, Panton applied to the Sec- retary of Homeland Security for a U visa. That application (which to this day remains pending) did not prevent the Im- migration Judge from issuing a removal order. 8 C.F.R. §214.14(c)(1)(ii). That order itself created a problem, however. The drug conviction and removal order made Panton inadmissible, 8 U.S.C. §1182(a)(2)(A)(i)(I), so he needs a waiver of inadmissi- bility to remain in the United States and benefit from a U visa, should he eventually receive one. 8 C.F.R. §214(a)(3)(i). Both the Department of Homeland Security, see 8 U.S.C. §1182(d)(14), and the Department of Justice, see 8 U.S.C. §1182(d)(3)(A), can grant requests for waivers of inadmissibil- ity. Panton sought to increase his chances by seeking that re- lief from both agencies. Adverse decisions by Immigration Judges may be reviewed by the Board of Immigration Ap- peals and the judiciary, while adverse decisions by the De- partment of Homeland Security are conclusive. 8 C.F.R. No. 25-2528 3 §212.17(b)(3). This makes an application to an Immigration Judge especially attractive. One more problem confronted Panton: he needed proof that he met the statutory requirements for a U visa. He asked officials in New York for confirmation, but they took about three years to respond. Finally, on December 11, 2023, the New York Police Department certified that Panton had been the target of an attempted murder, had assisted with the in- vestigation of that crime, and had positive equities. This came too late to be presented to the Immigration Judge in support of a request for a waiver of inadmissibility. So Panton asked the Board of Immigration Appeals to reopen his case and remand with instructions to take the new infor- mation into account. The deadline for a motion to reopen is 90 days from the Board’s original decision, 8 U.S.C. §1229a(c)(7)(C)(i), but this time can be extended on equitable grounds. Mejia-Padilla v. Garland, 2 F.4th 1026, 1034 (7th Cir. 2021). In other words, the time limit is not jurisdictional. Ra- mos-Braga v. Sessions, 900 F.3d 871, 876 (7th Cir. 2018). Cf. Riley v. Bondi, 606 U.S. 259 (2025) (time limit in 8 U.S.C. §1252(b)(1) is not jurisdictional; opinion implies that most other time lim- its in Title 8 also are not jurisdictional). The Board denied Pan- ton’s motion to reopen, and he seeks judicial review of that decision. Recap: Panton asked the Board to reopen his case because, he asserted, delay by officials in New York had made it im- possible for him to seek a waiver of inadmissibility earlier. The Board might have denied that request on the ground that New York’s certification is not as vital as Panton depicts, or perhaps that Panton is not entitled to a favorable exercise of discretion. What the Board said instead is hard to fathom— and, to the extent we can fathom it, impossible to accept. 4 No. 25-2528 The Board first said that, because Panton sought relief more than 90 days after its decision, only reopening sua sponte was an option. The Board ignored the possibility of equitable tolling, even though Panton had requested that relief explic- itly. Its statement that Panton had not even “claimed” an ex- ception to the 90-day limit is false. Next the Board said that only the United States Citizen- ship and Immigration Services (part of the Department of Homeland Security) can issue a U visa—which is true but has nothing to do with Panton’s request. He wants an Immigra- tion Judge to waive his inadmissibility, not to issue a U visa. The Board seemingly equated these two. Panton asked the Board for an additional remedy: discre- tionary closure of the removal proceeding until the Depart- ment of Homeland Security acts on his request for a U visa. See 8 C.F.R. §214.14(c)(1)(i). The Board did not so much as mention this possibility. The agency’s lawyer in this court has confessed error on the Board’s decision, recognizing that it was mistaken in part (conflating a visa with a waiver of inadmissibility) and nonre- sponsive in full. Still, counsel contends that the Board’s errors were harm- less. The brief recognizes that we have held that Immigration Judges and other officials in the Department of Justice can is- sue waivers of inadmissibility. See L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014); Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017), enforced by Baez-Sanchez v. Barr, 947 F.3d 1033 (2020). Accord, Jimenez-Rodriguez v. Garland, 996 F.3d 190 (4th Cir. 2021); Meridor v. Attorney General, 891 F.3d 1302 (11th Cir. 2018). But it contends that Panton, who was admitted in 1970, can’t obtain from the Department of Justice the sort of waiver that L.D.G. and Baez-Sanchez address. No. 25-2528 5 Perhaps counsel is thinking that only the Department of Homeland Security can issue a retroactive waiver of inadmis- sibility to an alien who sought it after becoming inadmissible while in the United States. See Sunday v. Attorney General, 832 F.3d 211, 214 (3d Cir. 2016). Our decision in L.D.G. reserved that possibility, 744 F.3d at 1028, and the subject remains open. Baez-Sanchez, 872 F.3d at 856, added that perhaps all of the Attorney General’s powers over waivers of inadmissibility have passed to the Department of Homeland Security; that topic, too, remains open in this court. Unless these matters are resolved against Panton, however, it would be hard to call the Board’s error harmless. Even then, as long as the Attorney General possesses any waiver authority (and the agency’s brief does not deny that he does), Panton might be able to ar- gue that he (like L.D.G.) seeks only a prospective waiver. He has been removed to Jamaica and could use the waiver to reenter the United States. Counsel for the agency principally contends that an alien who was lawfully admitted and becomes inadmissible later cannot be regarded as “seeking admission” under 8 U.S.C. §1182(d)(3)(A)(ii) and therefore does not come within §1182(d)(3)(A) as a whole, the provision that authorizes the Attorney General to issue waivers of inadmissibility. This line of argument calls to mind the holding of Cirrus Rojas v. Olson, 183 F.4th 909 (7th Cir. 2026), petition for certiorari pending, No. 26–572, that inadmissible aliens detained inside the United States (as opposed to at the border) cannot be treated as seeking admission. The consequence in Cirrus Rojas was that the alien did not face mandatory detention under 8 U.S.C. §1225(b)(2)(A). By parallel reasoning, perhaps the Attorney General lacks au- thority to waive inadmissibility under §1182(d)(3)(A). 6 No. 25-2528 Problem: the Department of Justice’s counsel distin- guishes L.D.G., Baez-Sanchez, and similar cases on the ground that those aliens were never lawfully admitted to the United States and therefore could be thought of as seeking admission from inside our borders. Yet they were apprehended well af- ter their entry, so, under the approach of Cirrus Rojas, their presence in the United States means that they were not seek- ing admission and should not have been able to obtain waiv- ers under §1182(d)(3)(A), which would contradict the hold- ings in L.D.G. and Baez-Sanchez. The agency’s brief in this case does not try to reconcile the position the Department of Jus- tice took in Cirrus Rojas (that inadmissible aliens inside the United States must be deemed to be seeking admission) with the position taken here (that inadmissible aliens inside the United States cannot be deemed to be seeking admission). The Supreme Court will decide in Roney v. Barbosa da Cunha, No. 26–104 (cert. granted Oct. 1, 2026), whether this court’s holding in Cirrus Rojas is correct. Perhaps the Court will shed light on the question when, if at all, an alien who was lawfully admitted but later removed from the United States, and desires to return, is properly treated as one seek- ing admission, and therefore entitled to ask the Department of Justice for a waiver of inadmissibility under §1182(d)(3)(A). Because Panton is not now inside the United States, resolution of the tension in the agency’s positions may not matter to him. We need not tackle any of those subjects today because of the Chenery principle. SEC v. Chenery Corp., 318 U.S. 80, 88 (1943); SEC v. Chenery Corp., 332 U.S. 194, 196–97 (1947). See also, e.g., FDA v. Wages & White Lion Investments, L.L.C., 604 U.S. 542, 587–88 (2025). The Board did not mention these top- ics or explain how any of them affects an alien in Panton’s po- sition. Chenery tells us that the validity of an administrative No. 25-2528 7 decision depends on the reasons the agency gives, not on rea- sons supplied by counsel in court. When an agency’s rationale is deficient, and counsel ad- vances new arguments, the normal course is a remand so that the agency can reconsider. Wages & White Lion, 604 U.S. at 586–91; Negusie v. Holder, 555 U.S. 511 (2009); Gonzales v. Thomas, 547 U.S. 183 (2006); INS v. Orlando Ventura, 537 U.S. 12 (2002). We follow that approach here. The Board of Immigration Appeals must address and re- solve the arguments that Panton advances and any response that the agency’s lawyer presents. But the Board need not again consider the possibility of reopening sua sponte. It has already declined to follow that course, and such a decision is not judicially reviewable. See, e.g., Anaya-Aguilar v. Holder, 683 F.3d 369, 371–73 (7th Cir. 2012). Indeed, a “request to reo- pen sua sponte” is an oxymoron. Sua sponte means action on a tribunal’s own initiative. If the tribunal acts in response to a litigant’s motion, the step is not on its own initiative. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir. 2013). Cf. Calderon v. Thompson, 523 U.S. 538, 553–54 (1998) (same point about a mo- tion to recall appellate mandate sua sponte). The petition for review is granted, and the case is re- manded to the Board.