Huerta v. Gonzales

• Decision Date: 11 April 2006
• Docket Number: No. 04-9542.,04-9542.
• Citation: 443 F.3d 753
• Parties: Jose Luis HUERTA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

443 F.3d 753

Jose Luis HUERTA, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 04-9542.

United States Court of Appeals, Tenth Circuit.

April 11, 2006.

Sandra Saltrese-Miller, Boulder, CO, for Petitioner.

James E. Grimes, Attorney, Office of Immigration Litigation (Mary Jane Candaux, Senior Litigation Counsel, with him on the brief), Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before HENRY, McKAY, and TYMKOVICH, Circuit Judges.

McKAY, Circuit Judge.

In 1990, Petitioner became a lawful permanent resident alien of the United States pursuant to 8 U.S.C. § 1255(a). In 1999, Petitioner was convicted in Colorado state court of conspiring to sell marijuana. As a result, the Immigration and Naturalization Service ("INS") served Petitioner with a Notice to Appear informing him that he was removable from the country under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B), (U) ("aggravated felony" includes conspiracies to illicitly traffic controlled substances).

In the removal hearing, Petitioner contested all of the INS's allegations in the Notice to Appear, including the fact of his alienage. Petitioner asserted that he was born to agricultural workers in Salinas, California, on March 12, 1973, but that his birth was not registered in the United States at that time. Though Petitioner possessed a Mexican birth certificate, he asserted at the removal hearing that the certificate was fraudulently obtained by his parents in 1987 "so [Petitioner] could have some documentation as to his identity." A.R. at 173.

At the conclusion of the testimony regarding Petitioner's alienage, the immigration law judge continued the proceedings. Before the next hearing, INS Special Agent Anthony Rouco investigated Petitioner's alienage and concluded that Petitioner was issued a Mexican birth certificate that was officially registered in Mexico in 1973. Agent Rouco obtained a copy of the Mexican birth certificate and learned from an official in the Mexican Attorney General's office that it would have been "virtually . . . impossible" for Petitioner's family to have paid someone in 1987 to falsely list Petitioner's birth in the Mexican records in 1973. Id. at 229. Agent Rouco's investigation also revealed that Petitioner had made prior declarations of Mexican birth to government officials. In 1992, he claimed to be "[a]n alien lawfully admitted for permanent residence." Id. at 276. In 2000, he told Denver police officers that he was from Mexico when he was arrested in Colorado. And finally, he claimed that he was born in Mexico when he applied for a social security card. Based largely on Agent Rouco's findings, the immigration law judge held on July 18, 2000, that Petitioner was an alien, and, as such, was removable from the United States as an aggravated felon.

Petitioner filed an appeal with the Board of Immigration Appeals ("BIA") on August 18, 2000—one day after the thirty-day deadline for filing such an appeal had expired. See 8 C.F.R. § 1003.38(b) (2005). On December 14, 2001, Petitioner obtained a "delayed registration of birth" from a California court. The BIA overlooked Petitioner's late filing and remanded the case to the immigration law judge for additional consideration based on the newly obtained California birth certificate. On remand, the immigration law judge for additional consideration based on the newly obtained California birth certificate. On remand, the immigration law judge again found the Mexican birth certificate to be legitimate and reaffirmed his earlier judgment and removal order. Once again, Petitioner appealed the decision to the BIA. On November 21, 2003, the BIA affirmed the immigration law judge's determination. Petitioner did not file a petition for review of that decision.

On September 18, 2003, Petitioner obtained a United States passport from the State Department. He then moved the BIA to reopen his case, alleging that the passport was "conclusive proof" of his American citizenship. In opposition to Petitioner's motion, the Department of Homeland Security presented a letter to the BIA from the State Department which revoked Petitioner's passport, based on its determination that he was born in Mexico. On April 5, 2004, the BIA denied Petitioner's motion to reopen because the only basis for his motion—his U.S. passport — no longer existed. Petitioner then applied to this court for review of the BIA's April 5, 2004, denial of the motion to reopen.

We first address whether Petitioner's untimely filing of his appeal—missing the deadline by one day—deprived the BIA of jurisdiction to hear Petitioner's case. We have jurisdiction over a case only when jurisdiction over the underlying order was proper, Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir.2004), and we review issues of jurisdiction de novo, Angle v. United States, 996 F.2d 252, 253 (10th Cir.1993). The question before us is whether non-compliance with the filing deadlines governing appeal to the BIA constitutes a jurisdictional defect that prevents us from addressing the merits and renders all action subsequent to the untimely filing a nullity. Jurisdictional challenges can be made by any party or the court at any time and are not subject to waiver or forfeiture. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Alternatively, compliance with the regulation's timeliness requirement could be mandatory, but forfeitable.

BIA regulations require that an appeal from an immigration judge's ("IJ") decision must be made within thirty days of the decision. 8 C.F.R. § 1003.38(b). In this case, the IJ's decision was issued on July 18, 2000, which gave Petitioner until August 17, 2000, to file an appeal, a deadline that the written order highlighted. A.R. 145. The BIA, however, received Petitioner's notice of appeal on August 18, 2000. Despite the non-compliance with the regulatory filing deadline, and without any objection from the government, the BIA proceeded to address the merits of Petitioner's claims, remanded the case to the IJ, and heard the second appeal from the IJ's decision. Now, for the first time, the government argues to us that the untimely filing of the appeal deprived both the BIA and this court of jurisdiction. Because we hold that the regulation governing the timely-filing of a notice of appeal is mandatory but not jurisdictional, we hold that the BIA properly exercised its jurisdiction and that we, therefore, also have jurisdiction over Petitioner's claims.

The recently decided Supreme Court case Eberhart v. United States, provides some guidance in distinguishing "`between a rule governing subject-matter jurisdiction and an inflexible claim-processing rule.'" ___ U.S. ___, 126 S.Ct. 403, 403, 163 L.Ed.2d 14 (2005) (per curiam) (quoting Kontrick v. Ryan, 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)). This is a muddled area of the law in which courts have confused the terms mandatory and jurisdictional. See id. at 407 (appreciating the difficulty of the circuit court's task in interpreting confusing Supreme Court precedents in this area); United States v. Flowers, 441 F.3d 900, 902-03 (10th Cir.2006). Indeed, in Eberhart, the Court recognized that courts have been "less than meticulous" in their application of the term "jurisdictional." Kontrick, 540 U.S. at 454, 124 S.Ct. 906. Courts "have more than occasionally used the term `jurisdictional' to describe emphatic time prescriptions in rules of court." Id.; see also Flowers, 441 F.3d at 903. Eberhart provides some clarity to this area of the law.

In Eberhart, the defendant was convicted on drug charges and made an untimely motion for a judgment of acquittal or new trial. Id. at 404; Fed. R.Crim. Proc. 33, 45. But the government did not raise the untimeliness argument and instead opposed defendant's arguments on the merits. Id. The district court granted the motion for a new trial, but it was not until the appeal that the government raised the untimeliness argument. Id. The court of appeals held that defendant's untimely filing deprived the district court of jurisdiction. Id. The Supreme Court reversed the circuit court's decision, holding that the filing requirements were not jurisdictional. The Court held that the timeliness requirements are mandatory—they required the court to "observe the clear limits of the Rules of Criminal Procedure when they are properly...