Castelan-Cruz v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 17, 2022
• Docket: 21-9537
• Status: Unpublished

Opinion

Appellate Case: 21-9537 Document: 010110658710 Date Filed: 03/17/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 17, 2022 _________________________________ Christopher M. Wolpert Clerk of Court PANFILO CASTELAN-CRUZ,

Petitioner,

v. No. 21-9537 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and EID, Circuit Judges. _________________________________

Panfilo Castelan-Cruz petitions for review of a decision by the Board of

Immigration Appeals (BIA) denying his motion to terminate removal proceedings.

Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we dismiss the petition in part

and deny it in part.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-9537 Document: 010110658710 Date Filed: 03/17/2022 Page: 2

BACKGROUND

Petitioner is a native and citizen of Mexico. The Department of Homeland

Security (DHS) served him with a Notice to Appear (NTA) on August 3, 2015. The

NTA charged him with removability as a noncitizen present without admission or

parole, see 8 U.S.C. § 1182(a)(6)(A)(i), and required him to appear before an

immigration judge (IJ) in an Aurora Immigration court on “a date to be set” at “a

time to be set.” R. at 206. The immigration court later issued a notice of hearing

specifying a date and time for the appearance in August 2015.

Petitioner appeared at this hearing, admitted the facts in the NTA other than

the alleged arrival date (the NTA asserted he arrived in August 2015, but Petitioner

asserted he arrived in June 2004), and admitted to his removability as charged. The

IJ therefore found DHS had established Petitioner’s removability by clear and

convincing evidence. At a second hearing in September 2015, Petitioner applied for

cancellation of removal under 8 U.S.C. § 1229b(b)(1). At a third hearing, this time in

a Denver immigration court, Petitioner requested that the IJ set his application for

cancellation of removal for a merits hearing. The IJ set the merits hearing for

October 5, 2018.

Before the merits hearing, the Supreme Court decided Pereira v. Sessions,

138 S. Ct. 2105 (2018). Petitioner then filed a motion to terminate proceedings in

which he argued that, under Pereira, because his NTA did not specify a date certain

for the first hearing before the IJ, the immigration court lacked jurisdiction and could

not continue the removal proceedings. The IJ denied the motion, concluding, based

2 Appellate Case: 21-9537 Document: 010110658710 Date Filed: 03/17/2022 Page: 3

on Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 447 (B.I.A. 2018), that the

defective NTA did not implicate the immigration court’s jurisdiction. Petitioner filed

a second motion to terminate in which he argued the BIA wrongly decided

Bermudez-Cota and that, alternatively, DHS’s failure to comply with regulations

required termination of the proceedings.

In October 2018, Petitioner appeared before the IJ for his merits hearing. He

conceded he could not meet his burden to show exceptional and extremely unusual

hardship to support his application for cancellation of removal, but he argued the

court should grant his second motion to terminate in light of Pereira. Petitioner also

argued that, apart from the jurisdictional issue, the defective NTA deprived him of

his Fifth Amendment right to due process. The IJ denied the second motion to

terminate, concluding Bermudez-Cota was binding and Petitioner’s presence at each

of four prior hearings undermined any assertion of inadequate notice. The IJ then

found Petitioner had not carried his burden for cancellation of removal.

Petitioner timely filed a notice of appeal to the BIA. In his agency appeal,

Petitioner did not raise his due process or claims-processing objections but argued the

IJ “erred as a [m]atter of [l]aw by finding . . . that the Immigration Court had

jurisdiction over [Petitioner].” R. at 32.

The BIA dismissed Petitioner’s appeal and concluded the IJ had jurisdiction in

light of Bermudez-Cota. This petition followed.

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DISCUSSION

Because the BIA decision was issued by a single board member, we review it

“as the final agency determination and limit our review to issues specifically

addressed therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006). We

consider legal questions de novo. Elzour v. Ashcroft, 378 F.3d 1143, 1150

(10th Cir. 2004).

Petitioner presents one issue for review, asserting the BIA “erred as a matter of

law by affirming the IJ’s denial of [his] motion to terminate proceedings due to a

defective NTA.” Pet’r’s Opening Br. at 4. But to the extent Petitioner is once again

pressing his jurisdictional argument, circuit precedent forecloses it. See Martinez-

Perez v. Barr, 947 F.3d 1273, 1278 (10th Cir. 2020) (“[W]e agree with the several

circuits that have held that the requirements relating to notices to appear are non-

jurisdictional, claim-processing rules.”).

“We are bound by the precedent of prior panels absent en banc reconsideration

or a superseding contrary decision by the Supreme Court.” United States v. Meyers,

200 F.3d 715, 720 (10th Cir. 2000) (italics omitted). Petitioner points to no such en

banc reconsideration or superseding contrary decision here. He invokes Niz-Chavez

v. Garland, 141 S. Ct. 1474, 1480 (2021), in which the Supreme Court held that to

invoke the stop-time rule the government must serve an alien with an NTA consisting

of a single document specifying a hearing time and place. But nothing in Niz-Chavez

calls into doubt our conclusion in Martinez-Perez that these requirements are non-

jurisdictional.

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To the extent Petitioner now attempts to recast his arguments based on Pereira

and Niz-Chavez not as challenges to the jurisdiction of the immigration court but as

claims-processing or due-process objections, we lack jurisdiction to consider them

because he did not exhaust such objections before the BIA. See 8 U.S.C.

§ 1252(d)(1); Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008)

(“[O]bjections to procedural errors or defects that the BIA could have remedied must

be exhausted even if the alien later attempts to frame them in terms of constitutional

due process on judicial review.”).

CONCLUSION

We deny in part and dismiss in part the petition for review.

Entered for the Court

Allison H. Eid Circuit Judge