Marvin Javier-Flores v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2022
• Docket: 20-71566
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 19 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN JAVIER-FLORES, No. 20-71566

Petitioner, Agency No. A098-007-713

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 14, 2022** San Francisco, California

Before: BEA, CHRISTEN, and BRESS, Circuit Judges.

Marvin Javier-Flores, a native and citizen of Honduras, petitions for review

of the Immigration Judge’s (IJ) order reinstating an order of removal entered on

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). February 13, 2008. We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we

deny Javier-Flores’s petition.1

1. We may review Javier-Flores’s 2008 removal order only for a “gross

miscarriage of justice.” See Vega-Anguiano v. Barr, 982 F.3d 542, 547 (9th Cir.

2019). A gross miscarriage of justice “occurs when a . . . removal order had no

valid legal basis at the time of its issuance or at the time of its execution.” Id.

(emphasis omitted). Javier-Flores argues that his 2008 removal order had no valid

legal basis because, he contends, the IJ entered the order without subject matter

jurisdiction. Javier-Flores challenges the Immigration Court’s subject matter

jurisdiction because the Notice to Appear lacked the date and time of his removal

hearing and he did not otherwise receive notice of the date and time of his removal

hearing. We disagree.

In Aguilar Fermin v. Barr and Karingithi v. Whitaker, we said a notice to

appear that lacks a date and time of the removal hearing does not deprive the

Immigration Court of jurisdiction so long as notice of the time and date of the

removal hearing is later provided. See Aguilar Fermin v. Barr, 958 F.3d 887, 895

(9th Cir. 2020); Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019). But

1 Because the parties are familiar with the facts, we recite only those facts necessary to decide the petition. 2 more recently, our en banc court held that notice of the date and time of the

removal hearing is a claim-processing rule and the absence of such notice does not

deprive the Immigration Court of subject matter jurisdiction. United States v.

Bastide-Hernandez, No. 19-30006, 2022 WL 2662044, at *5 (9th Cir. July 11,

2022) (en banc). Further, despite Javier-Flores’s assertion that he was never given

notice of the date and time of his removal hearing, the record makes clear that he

was present at his removal hearing. The IJ did not issue an in absentia removal

order and the IJ’s decision indicates that it was personally served on Javier-Flores

and that he waived his right to an appeal in the Immigration Court. The IJ did not

enter Javier-Flores’s 2008 removal order without subject matter jurisdiction and

thus a gross miscarriage of justice has not occurred.

2. We are not persuaded by Javier-Flores’s attempt to distinguish

between when the Immigration Court’s jurisdiction vested and when removal

proceedings are “initiated” under 8 U.S.C. § 1229. Bastide-Hernandez made clear

that the notice requirements in the statutory scheme on which Javer-Flores relies

are merely claim-processing provisions that do not affect the court’s subject matter

jurisdiction. Bastide-Hernandez, 2022 WL 2662044, at *5.

PETITION FOR REVIEW DENIED.