Francisca Antonia Murillo-Vallencillo v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 17, 2020
• Docket: 20-12356
• Status: Unpublished

Opinion

USCA11 Case: 20-12356 Date Filed: 12/17/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12356 Non-Argument Calendar ________________________

Agency No. A206-311-981

FRANCISCA ANTONIA MURILLO-VALLECILLO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(December 17, 2020)

Before JILL PRYOR, BRANCH and LUCK, Circuit Judges.

PER CURIAM: USCA11 Case: 20-12356 Date Filed: 12/17/2020 Page: 2 of 6

Francisca Antonia Murillo-Vallecillo petitions for review of a Board of

Immigration Appeals (“BIA”) decision reinstating her order of removal. The

government has filed a motion for a summary denial of her petition. After careful

review, we grant the government’s motion.

Murillo-Vallecillo entered the United States without inspection, and the

Department of Homeland Security served her with a notice to appear, alleging that

she was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i). Although the notice

failed to identify the time or place of the removal hearing, the agency later notified

Murillo-Vallecillo of the time and place of the hearing. Murillo-Vallecillo failed to

appear for her removal hearing, and the immigration judge entered an order of

removal.

Later, Murillo-Vallecillo sought to reopen her proceedings and have the order

of removal rescinded, arguing that the agency lacked jurisdiction over her removal

proceedings because the notice to appear failed to set forth the time and place of her

removal hearing. The immigration judge agreed that the agency lacked jurisdiction

and entered an order terminating the removal proceedings. But the BIA vacated the

immigration judge’s decision and reinstated the removal order.

In this petition for review, Murillo-Vallecillo argues that the agency lacked

jurisdiction over her removal proceedings because she had been served with a

defective notice to appear. The government moved for summary disposition,

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arguing that our precedent forecloses Murillo-Vallecillo’s argument that the agency

lacked jurisdiction over her removal proceedings.

Summary disposition is appropriate either when time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or when “the position of one of the parties is clearly

right as a matter of law so that there can be no substantial question as to the outcome

of the case, or where, as is more frequently the case, the appeal is frivolous.”

Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).1

We review de novo the BIA’s legal determinations and interpretations of law

or statutes, “deferring to an agency’s interpretation of a statute it administers only if

the statute’s language is ambiguous and the agency’s interpretation is based on a

permissible construction of the statute.” Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d

1148, 1152 (11th Cir. 2019) (internal quotation marks omitted). Under our prior

panel precedent rule, “the holding of the first panel to address an issue is the law of

this Circuit” and “bind[s] all subsequent panels unless and until the first panel's

holding is overruled by the Court sitting en banc or by the Supreme Court.” Smith

v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981. 3 USCA11 Case: 20-12356 Date Filed: 12/17/2020 Page: 4 of 6

The Immigration and Nationality Act provides that an immigration judge

shall conduct proceedings to determine whether a noncitizen is removable from the

United States. 8 U.S.C. § 1229a(a)(1). The statute does not explicitly state the

conditions upon which jurisdiction vests with an immigration court, but regulations

provide that “[j]urisdiction vests . . . when a charging document is filed with the

Immigration Court.” 8 C.F.R. § 1003.14(a). A notice to appear is a type of

charging document. Id. § 1003.13. By statute, a notice to appear must specify,

among other things, the time and place at which a removal hearing will be held.

8 U.S.C. § 1229(a)(1)(G)(i). But under the regulatory framework, a notice to

appear is not required to specify the time or place of the removal hearing. See

8 C.F.R. § 1003.15(b), (c).

We previously considered whether the agency had jurisdiction over a

noncitizen’s removal proceedings when he was served with a notice to appear that

included no information about the time or place of the removal hearing. See Perez-

Sanchez, 935 F.3d at 1150. We determined that such a notice to appear was

“unquestionably deficient” under § 1229(a) and this statutory defect could not be

cured by a subsequent notice that informed the noncitizen of the time and place of

the removal hearing. Id. at 1153–54. But we ultimately held that this defect did not

deprive the agency of jurisdiction over the removal proceedings. Id. at 1154–57.

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Under our prior panel precedent rule, we are bound by Perez-Sanchez to reject

Murillo-Vallecillo’s argument that the agency lacked jurisdiction over her removal

proceedings. Murillo-Vallecillo admits that the Perez-Sanchez panel held that

defects in a notice of removal do not deprive the agency of jurisdiction. But, she

says, the panel in Perez-Sanchez wrongly decided this issue, and we may revisit its

decision because a later panel is permitted to revisit an issue when “the first panel to

address an issue failed to follow and apply controlling Supreme Court precedent.”

Petitioner’s Br. at 16 (internal quotation marks omitted). We disagree with Murillo-

Vallecillo’s characterization of our prior precedent rule. As a later panel, we are

bound by Perez-Sanchez because our Court has “categorically reject[ed]” the

argument that there is an “exception to the prior panel precedent rule based upon a

perceived defect in the prior panel’s reasoning or analysis.” Smith, 236 F.3d at 1303;

see also United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017) (explaining

that even if an earlier panel’s decision was “flawed,” a later panel “does not [have]

. . . the authority to disregard it”).

We are bound by Perez-Sanchez to conclude that the agency had jurisdiction

over Murillo-Vallecillo’s removal proceedings. Because there is no substantial

question as to the outcome of the case, and the government’s position is correct as a

matter of law, we GRANT the government’s motion for summary denial and DENY

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Murillo-Vallecillo’s petition for review. See Groendyke, 406 F.2d at 1162. In

addition, we DENY as moot the government’s motion to stay the briefing schedule.