Jose Francisco Lorenzo v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 16, 2021
• Docket: 20-10875
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10875 Non-Argument Calendar ________________________

Agency No. A028-550-927

JOSE FRANCISCO LORENZO, a.k.a. Domingo Francisco Mateo,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

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

(February 16, 2021)

Before MARTIN, JILL PRYOR and BRANCH, Circuit Judges.

PER CURIAM:

Petitioner Jose Francisco Lorenzo petitions for review of the Board of

Immigration Appeals’ (“BIA”) order denying his second motion to reconsider, USCA11 Case: 20-10875 Date Filed: 02/16/2021 Page: 2 of 10

which argued that the BIA erred in denying his motion to reopen and terminate

removal. Ten years after entering the United States without admission, the

Department of Homeland Security issued him a notice to appear (“NTA”), alleging

he was subject to removability under 8 U.S.C. §§ 1182(a)(6)(A)(i), (7)(A)(i)(I).

The NTA did not identify the time or date of the removal proceedings.

Lorenzo now argues that the agency lacked jurisdiction over his removal

proceedings under the reasoning of Pereira v. Sessions, 138 S. Ct. 2105 (2018),

because his NTA failed to set forth the time and place of his removal hearing. The

BIA rejected his petition as number barred, as well as in conflict with Eleventh

Circuit precedent. Because we agree with the BIA that Lorenzo’s jurisdictional

challenge is foreclosed by our precedent, we deny his petition.

I. BACKGROUND

Lorenzo, a citizen of Guatemala, originally entered the United States in

2001. DHS initiated removal proceedings against Lorenzo in 2011. His initial

NTA included the location of his removal hearing, but not the time and date. A

subsequent notice set the date and time of the hearing. He appeared both at that

hearing and at a later hearing where, represented by counsel, he admitted he had

entered the United States without permission.

After this admission, Lorenzo filed an application for cancellation of

removal. Lorenzo and his wife, who is also from Guatemala, have four children

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who are United States citizens. Lorenzo provides income for the family, and his

wife takes care of their children. In his removal hearing, he argued that his

deportation would cause undue hardship to his U.S. citizen children. After the

hearing, the immigration judge (“IJ”) determined that Lorenzo was not eligible for

cancellation of removal because he had not shown that his children would suffer

exceptional hardship if he was removed to Guatemala. The BIA affirmed this

decision, and Lorenzo did not file a petition seeking review of the BIA decision.

Lorenzo then moved to reopen his removal proceedings to provide

additional evidence of the hardship his deportation would pose to his children.

Lorenzo’s six-year-old son has Ventricular Septal Defect (“VSD”). VSD is a

congenital heart disease that requires frequent monitoring and could eventually

require open heart surgery. In his motion to reopen, Lorenzo argued that moving

his son to Guatemala would be an exceptional hardship because he could not get

the treatment he needed in Guatemala. The BIA again denied his motion, stating

that although Lorenzo had presented new evidence of hardship, he still had not met

the burden required to terminate removal proceedings. Again, Lorenzo did not file

a petition seeking review of this decision.

Following this denial, Lorenzo again moved to reopen. This time he argued

his removal proceedings should be terminated because the immigration court

lacked jurisdiction over his removal proceedings in light of the Supreme Court’s

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decision in Pereira, 138 S. Ct. at 2105. Lorenzo maintained that his original NTA

was defective because it did not include the date and time of his hearing. The BIA

denied this motion, noting that it had recently held in Matter of Bermudez-Cota

that an NTA that does not specify the time and place of the hearing still vests an

immigration court with jurisdiction as long as a second notice including that

information is sent. 27 I&N Dec. 441, 447 (BIA 2018). Because Lorenzo received

a second notice that included the time and date of his hearing, the BIA held, his

NTA was not defective and the immigration court had jurisdiction over his

removal proceedings.

Lorenzo filed a motion to reconsider this decision, arguing that this Court

had chosen not to follow Matter of Bermudez-Corta in Duran-Ortega v. United

States Attorney General, No. 18-14563, 2018 U.S. App. LEXIS 33531 (11th Cir.

Nov. 29, 2018). According to Lorenzo, this meant that Bermudez-Corta did not

apply in the Eleventh Circuit, and therefore the original NTA was defective under

Pereira. The BIA disagreed; Duran-Ortega, it noted, was an unpublished

decision, meaning that it was not binding authority on the Board. It also pointed to

another Eleventh Circuit decision—Molina-Guillen v. United States Attorney

General, 758 F. App’x 893, 898 (11th Cir. 2019)—where we held that a deficient

notice to appear followed by a notice of hearing with the necessary information

together fulfilled the notice requirement.

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In response, Lorenzo filed a second motion to reconsider.1 In that motion,

he argued that the BIA erred in granting weight to Molina-Guillen and discounting

Duran-Ortega because both were unpublished decisions. Moreover, since those

two decisions allegedly conflicted, Lorenzo maintained that the BIA was left only

with Pereira, which indicated the defective NTA meant the immigration court did

not have jurisdiction. The BIA denied Lorenzo’s motion as both number-barred

and in conflict with our precedent in Perez-Sanchez v. United States Attorney

General, 935 F.3d 1148 (11th Cir. 2019).

Lorenzo now appeals the dismissal of his second motion to reconsider.

II. STANDARD OF REVIEW

We review the BIA’s denial of a motion to reconsider for abuse of

discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003).

However, we review de novo our own subject matter jurisdiction. Fynn v. U.S.

Att’y Gen., 752 F.3d 1250, 1252 (11th Cir. 2014). We also review the BIA’s legal

determinations and interpretations of law or statutes de novo. See Castillo-Arias v.

U.S. Att’y Gen., 446 F.3d 1190, 1195 (11th Cir. 2006).

1 Lorenzo titled his second motion to reconsider an “Amended Motion to Reconsider.” The motion responded directly to the BIA’s decision on his first motion to reconsider and did not supersede his previous motion. Moreover, the Immigration and Nationality Act does not explicitly provide for amendments to motions in removal proceedings. See generally 8 U.S.C. § 1229a (outlining the procedures for removal proceedings). As such, we consider it a second, rather than an amended, motion.

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III. DISCUSSION

On appeal, Lorenzo argues that the BIA abused its discretion in denying his

second motion to reconsider in light of Pereira and that the BIA was bound by

Pereira to terminate the proceedings because his original NTA was defective. 2 To

support this argument, he contends that our Court’s only cases on this issue are

unpublished and conflicting, and therefore the Board erred in denying his petition.

This is incorrect. As the BIA noted in its denial of Lorenzo’s petition, our

precedent in Perez-Sanchez rejects Lorenzo’s Pereira jurisdictional argument. To

explain, we first discuss the Pereira decision and the relevant portions of the

Immigration and Nationality Act (“INA”) and accompanying regulations. We then

conclude by examining how Perez-Sanchez forecloses Lorenzo’s petition.

The INA 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 judge, but regulations provide that

2 Along with holding that Lorenzo’s Pereira argument lacked merit, the BIA concluded that his motion was numerically barred. The government argues that Lorenzo’s failure to address whether the BIA erred in considering his motion numerically barred amounts to waiver of a dispositive issue and we need not analyze the Pereira question. We disagree. Lorenzo’s Pereira argument is a challenge to our subject matter jurisdiction because our jurisdiction depends upon the BIA’s jurisdiction. 8 U.S.C. § 1252. As we have a duty to ensure our subject matter jurisdiction, we must address the Pereira issue. Pinson v. JPMorgan Chase Bank, Nat’l Ass’n, 942 F.3d 1200, 1206 (11th Cir. 2019). And because Lorenzo’s Pereira jurisdictional argument is also the underlying merits claim, we decide the case on the Pereira argument alone, without ruling on the numerical bar or waiver issue.

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“[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, an NTA 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). 3

In Pereira, the Supreme Court addressed when a noncitizen was eligible for

cancellation of removal, a type of discretionary relief available to nonpermanent

residents who have accrued 10 years of continuous physical presence in the United

States. 138 S. Ct. at 2109. The Court considered whether the INA’s stop-time

rule, which specifies that a noncitizen’s period of physical presence is deemed to

end when he is served with an NTA, applied when the notice to appear that the

noncitizen received failed to specify the time and place of the removal hearing. Id.

at 2109–10. The Supreme Court reasoned that a “putative notice to appear that

fails to designate the specific time or place of the noncitizen’s removal proceedings

is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-

time rule.” Id. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)).

3 The regulations specify that an NTA shall include time and place information for the removal hearing “where practicable.” 8 C.F.R. § 1003.18(b). When an NTA omits this information, the regulations permit an immigration judge to later provide the information to the noncitizen. Id.

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Although the Supreme Court in Pereira stated that it was deciding only a

“narrow question” about an eligibility requirement for cancellation of removal, it

acknowledged that the flaw present in the case—the failure to specify the time or

place of the removal hearing—was present in nearly every NTA that had been

issued in recent years. Id. at 2110–11. After Pereira, some noncitizens, like

Lorenzo, asserted that their removal proceedings were void because their

proceedings were purportedly commenced by a “putative notice to appear” that

was “not a notice to appear under section 1229(a).” Id. at 2113–14 (internal

quotation marks omitted).

We have considered whether an NTA that failed to state the time and date of

a noncitizen’s hearing deprived the agency of jurisdiction over the removal

proceedings. See Perez-Sanchez, 935 F.3d at 1150. We determined that such an

NTA was “unquestionably deficient” under § 1229(a). Id. at 1153. And we

reasoned that Pereira foreclosed any argument that this statutory defect in the

NTA could be cured by a subsequent notice that informed the noncitizen of the

time and date of the removal hearing. Id. at 1153–54.

We nonetheless held in Perez-Sanchez that a defective NTA did not deprive

the agency of jurisdiction over the removal proceedings because the statutory

“time-and-place requirement” did not “create a jurisdictional rule,” but instead set

forth a “claim-processing rule.” Id. at 1154–55. We also considered whether the

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immigration judge lacked jurisdiction under 8 C.F.R. § 1003.14. Id. at 1154. We

questioned whether the regulation, which purported to set forth when immigration

proceedings commenced, should be given effect, because it was contrary to the

unambiguous language in the statute. Id. But even assuming the statute was

ambiguous and the regulation should be given effect, we determined that the

outcome remained the same because the regulation “set[] forth only a claim-

processing rule.” Id. at 1155–57. Even though the regulation expressly referred to

the vesting of jurisdiction in the agency, we held that it was not a jurisdictional rule

because agencies cannot set or limit their own jurisdiction. Id. at 1155. Because

neither 8 U.S.C. § 1229(a) nor 8 C.F.R. § 1003.14 spoke to jurisdiction, we

concluded that “the IJ and the BIA properly exercised jurisdiction over [the

petitioner’s] removal hearing” based on the authority conferred under the INA,

even though the petitioner received a defective NTA, and denied the petition as to

the Pereira claim. Id. at 1157.

Our decision in Perez-Sanchez forecloses Lorenzo’s argument that the

agency lacked jurisdiction over his removal proceedings. Because the requirement

that an NTA include time and place information is a claim-processing, rather than

jurisdictional, rule, the BIA did not err when it denied his second motion for

reconsideration.

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IV. CONCLUSION

For the foregoing reasons, we deny Lorenzo’s petition.

PETITION DENIED.