Martinez-Perez v. Barr

• Citation: 947 F.3d 1273
• Decision Date: 17 January 2020
• Docket Number: No. 18-9573,18-9573
• Parties: Alonso MARTINEZ-PEREZ, Petitioner, v. William BARR, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

947 F.3d 1273

Alonso MARTINEZ-PEREZ, Petitioner,

v.William BARR, Attorney General of the United States, Respondent.

No. 18-9573

United States Court of Appeals, Tenth Circuit.

FILED January 17, 2020

Mark R. Barr, Lichter Immigration, Denver, Colorado, appearing for Petitioner.

Lynda A. Do, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, Civil Division, and Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, with her on the brief), Department of Justice, Washington, District of Columbia, appearing for Respondent.

Before BRISCOE, EBEL, and HARTZ, Circuit Judges.

BRISCOE, Circuit Judge.

Alonso Martinez-Perez (Petitioner) has filed a petition for review of a final order of the Board of Immigration Appeals (BIA). The BIA dismissed Petitioner's appeal, holding that neither the BIA nor the Immigration Court had jurisdiction to grant Petitioner's application for cancellation of removal. Petitioner then filed the present petition for review. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant in part and deny in part the petition for review, vacate the order of the BIA dismissing Petitioner's appeal, and remand to the BIA for further proceedings consistent with this Opinion.

I

Petitioner is a native and citizen of Mexico. Certified Administrative Record (CAR) at 63. He entered the United States in 2001, without being inspected and admitted or paroled. Id. On April 9, 2009, the Department of Homeland Security (DHS) charged him as removable from the United States pursuant to the Immigration and Nationality Act (INA) as an alien present in the United States without being admitted or paroled. Id. Immigration officials served Petitioner with a notice to appear. Id. The notice to appear did not include a date and time for his hearing. Id. at 408. One week later, Petitioner received notice of the date and time of his hearing in a separate document. Id. at 407. On May 5, 2010, Petitioner, through counsel, admitted the allegations contained in the notice to appear and conceded the charge of removability.¹ Id. at 63. The Immigration Judge found Petitioner removable. Id.

On July 7, 2011, Petitioner filed his application for cancellation of removal. Id. The Attorney General may, in pertinent part, cancel removal when "removal would result in exceptional and extremely unusual hardship to the alien's ... child, who is a citizen of the United States." 8 U.S.C. § 1229b(b)(1)(D). "The term ‘child’ means an unmarried person under twenty-one years of age." Id. § 1101(b)(1). Petitioner's qualifying relative was his daughter, who was sixteen years old when Petitioner filed his application for cancellation of removal. CAR at 213.

The hearing on Petitioner's application was initially scheduled for July 22, 2011, but the Immigration Court subsequently rescheduled the hearing on its own motion five times. Id. at 64. The Immigration Court first rescheduled the matter to January 6, 2012; then to February 7, 2014; then to June 5, 2014; then to January 28, 2015; and, finally, to November 29, 2019. Id. These continuances spanning a period of over eight years posed a problem for Petitioner because his daughter "would age out of her status as a qualifying relative on October 7, 2015, when she would turn twenty-one and no longer be considered a ‘child’ under ... the Act." Id. On May 7, 2015, Petitioner moved to reschedule his hearing for a date before his daughter's twenty-first birthday, but his motion was denied. Id. at 96–98. In denying Petitioner's motion, the Immigration Judge stated that there was "no earlier docket availability for non-priority cases." Id. at 96.

Petitioner's hearing was eventually rescheduled for April 5, 2017, almost six years after his application was filed. Id. at 64. At the hearing, Petitioner acknowledged that he was no longer eligible for cancellation of removal because he no longer had a qualifying relative—by that time, his daughter had aged out. Id. Petitioner moved for administrative closure² on "fairness and due process" grounds because he "ha[d] been in removal proceedings for eight years and ha[d] been prepared to move forward with the individual hearing for ... six years." Id. at 87. He requested voluntary departure in the alternative. Id. at 89. The Immigration Court denied Petitioner's motion for administrative closure because "there [wa]s no relief immediately available to him, either inside or outside of removal proceedings." Id. at 65. Petitioner's request for voluntary departure was granted. Id. at 66.

Petitioner sought review by the BIA. Id. at 48. Petitioner argued that: (1) based on the Supreme Court's reasoning in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), the Immigration Court lacked jurisdiction over his removal proceeding because he was never served with a valid notice to appear; and (2) his Fifth Amendment right to procedural due process was violated when his hearing on his application for cancellation of removal was repeatedly continued, depriving him of a qualifying relative. Id. at 23. The BIA dismissed Petitioner's appeal. Id. at 4. First, it held that the Immigration Court had jurisdiction over Petitioner's removal proceeding, notwithstanding Pereira . Id. at 3 (citing Matter of Bermudez-Cota , 27 I. & N. Dec. 441 (BIA 2018) ). The BIA, however, did not address Petitioner's due process argument. Instead, it noted the age of Petitioner's daughter at the time of the hearing before the Immigration Court and concluded that "neither the B[IA] nor the Immigration Judge ha[d] jurisdiction to grant [Petitioner's] application [for cancellation of removal] in the absence of ... a qualifying relative at the time of the hearing." Id. at 4. Petitioner timely filed a petition for review.

II

We have jurisdiction under 8 U.S.C. § 1252(a) because the BIA's order denying relief from removal is an appealable final order of removal. Sosa-Valenzuela v. Holder , 692 F.3d 1103, 1108 (10th Cir. 2012). Our review is limited to constitutional claims or questions of law because eligibility for relief from removal is ordinarily an unreviewable matter of discretion under 8 U.S.C. § 1252(a)(2)(C) & (D). Id. at 1108–09. We therefore review the BIA's legal determinations de novo, but we do not ordinarily review its exercise of discretion. Id. at 1109.

III

Petitioner presents two arguments in his petition for review. First, Petitioner argues that the Immigration Court lacked jurisdiction over his removal proceedings because his notice to appear did not specify the date and time of his initial hearing. Pet. Opening Br. at 15. Second, Petitioner argues that "the B[IA] erred when it [found] ... that it lacked ‘jurisdiction’ to consider him as having a qualifying relative for cancellation." Id. at 27.

A

We first turn to Petitioner's argument that the Immigration Court lacked jurisdiction because Petitioner's notice to appear did not include the date and time of the initial hearing. Title 8 C.F.R. § 1003.14 states that the Immigration Court's "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court." In turn, a "charging document" is defined as "the written instrument which initiates a proceeding" before the Immigration Court, including a notice to appear. 8 C.F.R. § 1003.13. The statute governing removal proceedings defines a notice to appear as "written notice" that specifies, among other things, "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(G)(i). The implementing regulations, however, state that a notice to appear need only contain the time and place of the removal proceedings "where practicable." 8 C.F.R. § 1003.18(b).

Relying on the Supreme Court's holding in Pereira that "[a] putative notice to appear that fails to designate the specific time or place ... is not a ‘notice to appear under section 1229(a),’ " Petitioner argues that jurisdiction never vested with the Immigration Court in his proceeding. 138 S. Ct. at 2113–14. In response, Respondent relies on the BIA's post- Pereira decision in Bermudez-Cota , which held that "a notice to appear that does not specify the time and place of an alien's initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings ... so long as a notice of hearing specifying this information is later sent to the alien." 27 I. & N. Dec. at 447. Respondent also points us to rulings from other circuits which hold that Pereira does not extend beyond the narrow stop-time rule context at issue in Pereira .

This court has very recently rejected a similar Pereira -based argument that a notice to appear which fails to specify the time and place of an alien's initial removal hearing deprives the Immigration Court of jurisdiction. See Lopez-Munoz v. Barr , 941 F.3d 1013, 1017 (10th Cir. 2019). We follow the lead of Lopez-Munoz and "join the overwhelming chorus of our sister circuits that have already rejected similar Pereira -based challenges." Pierre-Paul v. Barr , 930 F.3d 684, 689 (5th Cir. 2019) ; see Banegas Gomez v. Barr , 922 F.3d 101, 110 (2d Cir. 2019) ; Nkomo v. Att'y Gen. , 930 F.3d 129, 133 (3d Cir. 2019) ; United States v. Cortez , 930 F.3d 350, 358 (4th Cir. 2019) ; Hernandez-Perez v. Whitaker , 911 F.3d 305, 315–16 (6th Cir. 2018) ; Ortiz-Santiago v. Barr , 924 F.3d 956, 963 (7th Cir. 2019) ; Ali v. Barr , 924 F.3d 983, 986 (8th Cir. 2019) ; Karingithi v. Whitaker , 913 F.3d 1158, 1160 (9th Cir. 2019) ; Perez-Sanchez v. United States Att'y Gen. , 935 F.3d 1148, 1154 (11th Cir. 2019). As an initial matter, Pereira is inapposite. As noted in Lopez-Munoz , the Supreme Court in Pereira addressed only the "narrow question" of whether a notice to appear that omits the time or place of the initial hearing triggers the statutory stop-time rule for cancellation of removal. 941 F.3d at 1018. The Supreme Court held that a notice to appear that omits the removal...