Jose Garcia-Cea v. William Barr

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 16, 2019
• Docket: 18-2518
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-2518

JOSE ALEXANDER GARCIA-CEA,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: August 20, 2019 Decided: October 16, 2019

Before WILKINSON, MOTZ, and RICHARDSON, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Robert J. Harris, Fairfax, Virginia, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Leslie McKay, Senior Litigation Counsel, Corey L. Farrell, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Jose Alexander Garcia-Cea, a native and citizen of El Salvador, petitions for review

of an order of the Board of Immigration Appeals (Board) denying his motion to reopen

removal proceedings in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018) (holding that

notice to appear (NTA) that does not designate time and place of removal proceedings, as

directed under 8 U.S.C. § 1229(a) (2012), does not trigger stop-time rule in determining

alien’s years of continuous presence), and new evidence. We deny the petition for review.

We review the denial of a motion to reopen for abuse of discretion. 8 C.F.R.

§ 1003.2(a) (2019); INS v. Doherty, 502 U.S. 314, 323-24 (1992); Mosere v. Mukasey, 552

F.3d 397, 400 (4th Cir. 2009). The Board’s “denial of a motion to reopen is reviewed with

extreme deference, given that motions to reopen are disfavored because every delay works

to the advantage of the deportable alien who wishes merely to remain in the United States.”

Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir. 2009) (internal quotation marks omitted).

The motion “shall state the new facts that will be proven at a hearing to be held if the

motion is granted and shall be supported by affidavits or other evidentiary material.”

8 C.F.R. § 1003.2(c)(1) (2019). It “shall not be granted unless it appears to the Board that

evidence sought to be offered is material and was not available and could not have been

discovered or presented at the former hearing.” Id. We review the Board’s legal

determinations de novo. Barnes v. Holder, 625 F.3d 801, 803 (4th Cir. 2010).

The Board rejected Garcia-Cea’s argument that his NTA, issued in 2014, did not

vest jurisdiction with the immigration judge (IJ) because it did not list the date and time for

the initial hearing. Recently, we held that “the failure of the notice to appear filed with the

2 immigration court to include a date and time for [the] removal hearing [] does not implicate

the immigration court’s adjudicatory authority or jurisdiction.” United States v. Cortez,

930 F.3d 350, 358 (4th Cir. 2019) (internal quotation marks omitted). We observed that

the IJ’s authority to conduct removal proceedings stems from 8 U.S.C. § 1229a(a)(1)

(2012) (“[a]n immigration judge shall conduct proceedings for deciding the inadmissibility

or deportability of an alien”), and “nothing about that broad and mandatory grant of

adjudicatory authority is made contingent on compliance with rules governing notices to

appear, whether statutory, see 8 U.S.C. § 1229(a), or regulatory, see 8 C.F.R. § 1003.18(b)

[(2019)].” Cortez, 930 F.3d at 360 (parenthetical and citation omitted). We further

observed that there is no indication that 8 C.F.R. § 1003.14(a) (2019) “was intended to

implement some statutory provision giving the Attorney General the authority to adopt

rules of jurisdictional dimension.” Id. (internal quotation marks omitted). We noted that

8 C.F.R. § 1003.14 is “focused not on the immigration court’s fundamental power to act

but rather on requiring that the parties take certain procedural steps at certain specific times,

making it a claim-processing rule rather than a genuine jurisdictional requirement.” Id. at

361 (internal quotation marks omitted). Garcia-Cea’s argument that the IJ and Board

lacked jurisdiction over his removal proceedings is without merit. We further conclude

that the Board did not abuse its discretion denying Garcia-Cea’s motion to reopen based

on new evidence.

3 Accordingly, we deny the petition for review. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

PETITION DENIED