Lopez-Munoz v. Barr

• Decision Date: 04 November 2019
• Docket Number: No. 19-9510,19-9510
• Citation: 941 F.3d 1013
• Parties: Sandra LOPEZ-MUNOZ, Petitioner, v. William P. BARR, Attorney General Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

941 F.3d 1013

Sandra LOPEZ-MUNOZ, Petitioner,

v.William P. BARR, Attorney General Respondent.

No. 19-9510

United States Court of Appeals, Tenth Circuit.

FILED November 4, 2019

Submitted on the briefs^*

Jennifer M. Smith, Glenwood Springs, Colorado, on behalf of the Petitioner.

Joseph H. Hunt, Assistant Attorney General, Leslie McKay, Senior Litigation Counsel, and Manuel A. Palau, Trial Attorney, U.S Department of Justice, Washington, D.C., on behalf of the Respondent.

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

This petition for review involves a collateral challenge to a removal (deportation) order. The removal proceedings began with the service of a notice to appear. Because the notice to appear failed to include a date and time for her impending immigration hearing,¹ the petitioner (Ms. Sandra Lopez-Munoz) argues that the immigration judge lacked jurisdiction over the removal proceedings.

If Ms. Lopez is right, she may be entitled to relief based on the immigration judge’s lack of jurisdiction to order removal. In our view, however, the alleged defect would not preclude jurisdiction. We thus deny the petition for review.

1. Ms. Lopez seeks review of the denial of a motion to reconsider.

At the eventual removal proceedings, Ms. Lopez appeared and requested cancellation of removal, but the immigration judge declined the request. Ms. Lopez unsuccessfully appealed to the Board of Immigration Appeals, moved for the Board to reopen her case, petitioned for review in our court, moved a second time for the Board to reopen her case, and moved for reconsideration of the denial of her second motion to reopen.

Ms. Lopez’s present petition for review involves the denial of her motion to reconsider. Ordinarily, a noncitizen² cannot file a second motion to reopen, much less a motion to reconsider the denial of a second motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A) ; 8 C.F.R. § 1003.23(b)(1). In addition, motions to reopen are ordinarily due 90 days from the date of the removal order. 8 U.S.C. § 1229a(c)(7)(C)(i) ; 8 C.F.R. § 1003.23(b)(1).³

Despite these bars, Ms. Lopez sought reconsideration of an otherwise prohibited second motion to reopen nearly six years after issuance of the removal order. To overcome these procedural bars, Ms. Lopez must show a jurisdictional defect in the removal proceedings. Kontrick v. Ryan , 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004).

Ms. Lopez alleges a jurisdictional defect in her notice to appear based on noncompliance with regulations and the underlying statute. The regulations state that (1) the filing of a "charging document" creates jurisdiction, (2) a charging document consists of a notice to appear, and (3) a notice to appear must include the date and time where practicable. 8 C.F.R. §§ 1003.13, 1003.14(a), 1003.18. The statute provides that a notice to appear must specify the time and place of the removal hearing. 8 U.S.C. § 1229(a)(1)(G)(i). Invoking the regulations and statute, Ms. Lopez contends that her notice to appear was defective because it omitted the time or place of the removal hearing. For the sake of argument, we assume that Ms. Lopez is right about the existence of a defect in the notice to appear.

2. The alleged defect in the notice to appear was not jurisdictional.

In our view, this defect would not preclude jurisdiction.

A. The alleged regulatory defect is not jurisdictional.

Ms. Lopez’s jurisdictional argument relies largely on a federal regulation adopted by the Attorney General. This regulation provides that an immigration judge obtains jurisdiction when a charging document is filed. 8 C.F.R. § 1003.14(a).

Though the regulation uses the word "jurisdiction," the term "jurisdiction" is often loosely used for requirements unrelated to an agency or court’s power to act. Kontrick v. Ryan , 540 U.S. 443, 454–55, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). We thus must look beyond the Attorney General’s label to determine whether the regulation actually restricts immigration judges’ jurisdiction. Looking past that label, we conclude that the regulatory mention of "jurisdiction" is colloquial. The Attorney General didn’t—and couldn’t—restrict immigration judges’ jurisdiction.

Immigration judges obtain their powers from Congress, not agency regulations. See United States v. Cortez , 930 F.3d 350, 360 (4th Cir. 2019) ("[T]he immigration courts’ adjudicatory authority over removal proceedings comes not from the agency regulation codified at 8 C.F.R. § 1003.14(a), but from Congress."); Perez-Sanchez v. Att’y Gen. , 935 F.3d 1148, 1150 (11th Cir. 2019) ("Congress alone has the power to define the scope of an agency’s authority."). Congress empowered immigration judges by authorizing them to decide the issue of "inadmissibility or deportability." 8 U.S.C. § 1229a(a)(1) ; see United States v. Cortez , 930 F.3d 350, 360 (4th Cir. 2019) (stating that 8 U.S.C. § 1229(a) grants jurisdiction to immigration judges by authorizing them to conduct removal proceedings). By delegating this power to immigration judges, Congress granted them jurisdiction over removal proceedings. Perez-Sanchez , 935 F.3d at 1154-55 ; Cortez , 930 F.3d at 360.

Given this congressional delegation of authority, the Attorney General could not unilaterally restrict immigration judges’ jurisdiction. See Perez-Sanchez , 935 F.3d at 1156 ("[A]n agency cannot fashion a procedural rule to limit jurisdiction bestowed upon it by Congress.").⁴ So even if immigration judges had exceeded their regulatory power by ordering removal without a valid notice to appear, they would have still had jurisdiction.⁵ See City of Arlington v. FCC , 569 U.S. 290, 297–98, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013) (explaining that an agency’s power to act "is authoritatively prescribed by Congress").⁶ Because the Attorney General could not restrict an immigration judge’s jurisdiction through a regulation, 8 C.F.R. § 1003.14 does not establish immigration judges’ jurisdiction.⁷

B. The alleged statutory defect is not jurisdictional.

In challenging the immigration judge’s jurisdiction, Ms. Lopez also relies on the statutory provision requiring notices to appear to include the date and time of the hearing. This reliance is misplaced.

Not every statutory requirement is jurisdictional. To the contrary, a statutory requirement is jurisdictional only when Congress says it is. See Arbaugh v. Y & H Corp. , 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ("[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character."); see also Gad v. Kansas State Univ. , 787 F.3d 1032, 1039 (10th Cir. 2015) ("[W]e should not treat requirements as jurisdictional without express congressional direction."). Although a statute "need not go so far as to use the magic word ‘jurisdiction,’ " the jurisdictional language must be clear. United States v. McGaughy , 670 F.3d 1149, 1156 (10th Cir. 2012). Such clarity typically exists only when the statute addresses "the courts’ statutory or constitutional power to adjudicate the case." Barnes v. United States , 776 F.3d 1134, 1146 (10th Cir. 2015) (emphasis in original) (quoting Hobby Lobby Stores, Inc. v. Sebelius , 723 F.3d 1114, 1157–58 (10th Cir. 2013) (Gorsuch, J., concurring)).

Section 1229(a) does not refer to "jurisdiction" or "the courts’ statutory or constitutional power to adjudicate the case." Id. (emphasis in original). Thus, § 1229(a) is non-jurisdictional. See Hernandez–Perez v. Whitaker , 911 F.3d 305, 314–15 (6th Cir. 2018) (holding that § 1229(a) is not jurisdictional); Ortiz–Santiago v. Barr , 924 F.3d 956, 963 (7th Cir. 2019) (same); Karingithi v. Whitaker , 913 F.3d 1158, 1160 (9th Cir. 2019) (same).

Ms. Lopez nonetheless argues that the statutory rules governing the "initiation of cases are jurisdictional" because these rules are akin to statutes of limitations.⁸ Pet’r’s Opening Br. at 24–25.⁹ But statutes of limitations are not ordinarily jurisdictional. Musacchio v. United States , ––– U.S. ––––, 136 S. Ct. 709, 716–17, 193 L.Ed.2d 639 (2016). A limitations period is jurisdictional only if Congress says it is. See id. at 717. And Congress said nothing in the federal statutes to suggest that the requirements for a notice to appear are jurisdictional. Thus, Ms. Lopez’s purported equivalence between a notice to appear and limitations period is self-defeating.

Ms. Lopez relies not only on case law addressing the "initiation of cases" but also on Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Reliance on Pereira is misplaced. There the Supreme Court discussed the effect of a notice to appear that did not comply with § 1229(a). 138 S. Ct. at 2109–10. But we must interpret this discussion in context. See Illinois v. Lidster , 540 U.S. 419, 424, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (stating that the Supreme Court often reads the general language in opinions "as referring in context to circumstances similar to the circumstances then before the Court and not referring to quite different circumstances that the Court was not then considering"); see also Wisehart v. Davis , 408 F.3d 321, 326 (7th Cir. 2005) ("Judges expect their pronunciamientos to be read in context").

In Pereira , the Court decided only whether a defective notice to appear had interrupted a noncitizen’s continuous presence in the United States. 138 S. Ct. at 2110. The Court did not address the distinct question of whether a defect in the notice to appear would preclude jurisdiction over the removal proceedings. Indeed, the Court expressly declined to address this broader question, emphasizing that the decision was "much narrower." Id. at 2113.

Given this context, other circuits have declined to treat Pereira as a limitation on an immigration judge’s jurisdiction. See Gomez v. Barr , 922 F.3d 101, 110 (2d Cir. 2019) ("[W]e conclude that Pereira ’s self-described disposition...