United States v. Lira-Ramirez

Decision Date06 March 2020
Docket NumberNo. 19-3057,19-3057
Citation951 F.3d 1258
Parties UNITED STATES of America, Plaintiff-Appellee, v. Jose Vincente LIRA-RAMIREZ, a/k/a Vicente Lira-Ramirez, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Melody Brannon, Federal Public Defender, Topeka, Kansas, for Defendant-Appellant.

Jared S. Maag, Assistant United States Attorney, Topeka, Kansas (Stephen R. McAllister, United States Attorney, and James A. Brown, Assistant United States Attorney, Chief, Appellate Division, with him on the briefs), for Plaintiff-Appellee.

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal is brought by Mr. Jose Vincente Lira-Ramirez, who was indicted on a charge of illegally reentering the United States. See 8 U.S.C. § 1326(a). An element of illegal reentry is the existence of a prior removal order. United States v. Adame-Orozco , 607 F.3d 647, 650–51 (10th Cir. 2010).1 Though Mr. Lira-Ramirez had been removed in earlier proceedings, he moved to dismiss the indictment, arguing that the immigration judge lacked jurisdiction over the earlier proceedings because the notice to appear was defective under Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). The district court denied the motion to dismiss the indictment, and Mr. Lira-Ramirez appeals.

We affirm, concluding that our precedents foreclose Mr. Lira-Ramirez's jurisdictional challenge. Though Mr. Lira-Ramirez raises a new argument, it does not cast doubt on our precedents. We thus affirm the denial of Mr. Lira-Ramirez's motion to dismiss the indictment.

1. Mr. Lira-Ramirez challenged the immigration judge's jurisdiction over the prior removal proceedings.

Mr. Lira-Ramirez's removal proceedings began with service of a document entitled "Notice to Appear." Under federal law, a notice to appear must state the date and time of the removal hearing. 8 U.S.C. § 1229(a)(1)(G)(i). But this information was missing from the document sent to Mr. Lira-Ramirez. Despite the omission, Mr. Lira-Ramirez appeared at the removal hearing and was deported.

Mr. Lira-Ramirez was later charged with illegally reentering the United States. He challenged the validity of his prior removal order, arguing that the immigration judge had lacked jurisdiction because of the omission of the date and time in the notice to appear. The district court acknowledged that the notice to appear had been defective, but did not conclude that the immigration judge had lacked jurisdiction. The district court instead rejected Mr. Lira-Ramirez's argument on procedural grounds.2

2. Our review is de novo.

Because this appeal presents a question of law, we engage in de novo review. United States v. Pauler , 857 F.3d 1073, 1075 (10th Cir. 2017).

3. Mr. Lira-Ramirez's argument is foreclosed by our precedents.

Mr. Lira-Ramirez argues that the immigration judge lacked jurisdiction because of an omission of the date and time in his notice to appear. But we have held in two precedential opinions that this omission does not create a jurisdictional defect.3

The first precedential opinion was Lopez-Munoz v. Barr , 941 F.3d 1013 (10th Cir. 2019). Challenging the validity of a removal order, the petitioner in Lopez-Munoz argued that the omission of the date and time had rendered the notice to appear defective, precluding jurisdiction over the removal proceedings. 941 F.3d at 1015. We assumed that the petitioner's notice to appear was defective and held that an omission of the date and time in the notice to appear would not affect jurisdiction. Id. at 1015–18.

We reaffirmed Lopez-Munoz in Martinez-Perez v. Barr , 947 F.3d 1273 (10th Cir. 2020). Again considering an omission of the date and time in a notice to appear, we held that the omission did not preclude jurisdiction. 947 F.3d at 1278.

Lopez-Munoz and Martinez-Perez foreclose Mr. Lira-Ramirez's argument. We must generally follow our precedents absent en banc consideration.

United States v. Brooks , 751 F.3d 1204, 1209 (10th Cir. 2014). An exception exists for intervening changes in our precedents, id. , but Mr. Lira-Ramirez does not identify any. We are thus bound to follow our two precedential opinions. See United States v. Fagatele , 944 F.3d 1230, 1235–36 (10th Cir. 2019).

Mr. Lira-Ramirez suggests that Lopez-Munoz is not binding because the panel did not analyze a new argument regarding a transitional provision in the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 2009 (1996). See Part 4, below.4 We disagree.

At oral argument, Mr. Lira-Ramirez contended that in Yousuf v. Cohlmia , 741 F.3d 31 (10th Cir. 2014), doubts about a precedent led a panel of our court to buck precedent. But reliance on Yousuf is misplaced. The panel in Yousuf did overrule a point of law established by a previous panel, but did so with approval from the en banc court. 741 F.3d at 47 n.6.

In his briefs, Mr. Lira-Ramirez points to out-of-circuit opinions in which panels have sidestepped precedents. These opinions do not allow us to abandon our precedents.

For example, Mr. Lira-Ramirez refers to a First Circuit opinion stating that a panel can overturn another panel's decision when "newly emergent authority, although not directly controlling, nevertheless offers a convincing reason for believing that the earlier panel, in light of the neoteric developments, would change its course." Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct & Sewer Auth. , 945 F.2d 10, 12 (1st Cir. 1991), rev'd on other grounds , 506 U.S. 139, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). But our circuit has never endorsed abandonment of a precedent on these grounds.

Mr. Lira-Ramirez also cites a Fifth Circuit opinion, which allowed one panel to overrule another panel that had unknowingly contradicted an earlier Supreme Court decision. Wilson v. Taylor , 658 F.2d 1021, 1034–35 (5th Cir. 1981). But the Fifth Circuit opinion does not apply. There the Fifth Circuit overruled its precedent because it conflicted with a prior Supreme Court opinion, which also bound the Fifth Circuit. Mr. Lira-Ramirez's new argument does not involve a Supreme Court opinion, so the Fifth Circuit opinion cannot justify deviation from our precedent.

Because Mr. Lira-Ramirez identifies no intervening change in our precedents, we are bound by Lopez-Munoz and Martinez-Perez . Under these opinions, the alleged defect in the notice to appear would not be jurisdictional.

4. Mr. Lira-Ramirez's new argument does not cast doubt on our precedents holding that the alleged defect would not be jurisdictional.

Mr. Lira-Ramirez's argument treats the statutory requirements for a notice to appear as jurisdictional based on a transitional provision that had applied between the adoption and effective date of 8 U.S.C. § 1229. We would reject this argument even if we were not bound by Lopez-Munoz and Martinez-Perez .

Before the adoption of § 1229, removal proceedings could begin with two documents: (1) an order to show cause and (2) a notice of hearing. 8 U.S.C. § 1252b (1995).5 In 1996, however, Congress replaced the two documents with a single notice to appear. 8 U.S.C. § 1229(a) ; see Report of the Committee on the Judiciary, House of Representatives, H.R. Rep. 104-469(I) (1996), 1996 WL 168955 at *159 (discussing the statutory change).

But the 1996 law did not immediately go into effect. So Congress provided a transitional provision to govern removal proceedings that had begun before the new law took effect. Illegal Immigration Reform and Immigrant Responsibility Act, § 309(c)(4), Pub. L. No. 104-208, 110 Stat. 3009- 546, 3009-626.

This provision temporarily allowed the Attorney General to start removal proceedings under either the old procedure (with an order to show cause and a notice of hearing) or the new procedure (with a single notice to appear). The transitional provision stated that if the Attorney General started removal proceedings under the old procedure, "the notice of hearing provided to the alien under [ § 1252b ] shall be valid as if provided under [ § 1229(a) ](as amended by this subtitle) to confer jurisdiction on the immigration judge ." Id . (emphasis added). Relying on this sentence, Mr. Lira-Ramirez argues that the transitional provision shows that § 1229(a) is jurisdictional. We disagree for two reasons.

First, we must decide whether § 1229 is jurisdictional, not whether the transitional provision would have been jurisdictional. We can consider § 1229 jurisdictional only if Congress clearly stated that it intended to restrict immigration judges' jurisdiction. United States v. McGaughy , 670 F.3d 1149, 1156 (10th Cir. 2012). Congress did not clearly make such a statement in § 1229, which says nothing about jurisdiction or an immigration judge's power to act. Lopez-Munoz v. Barr , 941 F.3d 1013, 1017 (10th Cir. 2019). And the language of a separate transitional provision couldn't provide the clear statement necessary to render § 1229 jurisdictional. See United States v. Green , 886 F.3d 1300, 1305–06 (10th Cir. 2018) (explaining that classification of one provision as jurisdictional bears little relevance to whether a nearby provision is jurisdictional).

But let's assume for the sake of argument that the transitional provision could show that another provision ( § 1229 ) is jurisdictional. Even then, we'd conclude that the transitional provision does not clearly show that a notice to appear is jurisdictional. Mr. Lira-Ramirez relies on a sentence in the transitional provision stating that a notice of hearing shall be valid to confer jurisdiction. As Mr. Lira-Ramirez concedes, however, the transitional provision addresses the impact of a "notice of hearing" rather than a "notice to appear." Oral Arg. at 5:04–:11; see also Appellant's Reply Br. at 2 (stating that "[t]he statutory notice of the hearing," rather than the notice to appear, is what " ‘confers jurisdiction on the immigration[ ] judge’ " (citation omitted)). So the sentence does not say that a notice...

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