MD Farhad v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 22, 2020
• Docket: 20-10568
• Status: Unpublished

Opinion

Case: 20-10568 Date Filed: 09/22/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10568 Non-Argument Calendar ________________________

Agency No. A215-827-332

MD FARHAD,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (September 22, 2020)

Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:

MD Farhad seeks review of the Board of Immigration Appeals’s (“BIA”)

order denying his motion to reopen his immigration proceedings. Specifically,

Farhad asks us to review the BIA’s denial of his argument that the Immigration Case: 20-10568 Date Filed: 09/22/2020 Page: 2 of 5

Judge (“IJ”) lacked jurisdiction over his removal proceedings under the Supreme

Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). The government

moves for summary denial of his petition for review, arguing that we lack

jurisdiction to address the merits of Farhad’s petition for review and, in the

alternative, that his challenge is foreclosed by our precedent.

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

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

rights delayed are rights denied,” or where “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).

We review the BIA’s denial of a motion to reopen for an abuse of discretion,

and any underlying legal determinations de novo. Li v. U.S. Att’y Gen., 488 F.3d

1371, 1374 (11th Cir. 2007). Review of the denial of a motion to reopen is limited

to determining whether there has been an exercise of administrative discretion and

whether that exercise was arbitrary or capricious. Ali v. U.S. Att’y Gen., 443 F.3d

804, 808 (11th Cir. 2006). “Motions to reopen in removal proceedings are

particularly disfavored.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.

2009). However, we do not have jurisdiction to review the BIA’s decision denying

2 Case: 20-10568 Date Filed: 09/22/2020 Page: 3 of 5

a petitioner’s motion for sua sponte reopening. Lenis v. U.S. Att’y Gen., 525 F.3d

1291, 1292, 1294 (11th Cir. 2008).

In Pereira, decided in 2018, the Supreme Court analyzed whether a notice to

appear (“NTA”) that did not specify the time and place of an alien’s removal

hearing triggered the stop-time rule for cancellation of removal and therefore

ended the alien’s continuous physical presence in the United States. See Pereira v.

Sessions, 138 S. Ct. 2105, 2109-10 (2018). The Supreme Court held that a putative

NTA that failed to designate the specific time or place of the alien’s removal

proceedings was not a “notice to appear” under 8 U.S.C. § 1229(a) and, therefore,

did not trigger the stop-time rule. Id. at 2110, 2113-14. The Court explained that

failing to specify “integral information like the time and place of removal

proceedings unquestionably [deprives] [the NTA] of its essential character.” Id. at

2116.

After Pereira, the BIA issued a published decision holding that an NTA that

did not specify the time and place of an alien’s initial removal hearing nevertheless

vested the IJ with jurisdiction over the removal proceedings and met the

requirements of 8 U.S.C. § 1229(a)(1), so long as a notice of hearing specifying

this information was later sent to the alien. Matter of Bermudez-Cota, 27 I. & N.

Dec. 441, 447 (BIA 2018). In its decision, the BIA noted both the long history of

NTA’s that lacked time and place specifications and how the Supreme Court in

3 Case: 20-10568 Date Filed: 09/22/2020 Page: 4 of 5

Pereira addressed only a narrow question regarding the stop-time rule, and it

remanded the case for further proceedings, indicating that there was jurisdiction

over the case. Id. at 443-47.

Recently, in Perez-Sanchez, however, we concluded that, when an NTA

failed to specify the time of the hearing, it violated 8 U.S.C. § 1229(a). See

Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1153-57 (11th Cir. 2019). But

we determined that such a rule was only a claim-processing rule, rather than a

jurisdictional rule. Id. Because the rule was not jurisdictional, its violation did not

deprive the agency of jurisdiction. Id. at 1154‑55. Turning to 8 C.F.R. § 1003.14,

which provides when jurisdiction vests with the immigration judge, we reasoned

that it too was a claim-processing rule. See id. at 1155-57. Thus, even if the NTA

failing to specify the time of the hearing rendered it deficient under the regulations,

the agency still properly exercised jurisdiction. Id. We also noted that the

regulations did not require the NTA to contain the time, date, and location of the

removal hearing. Id. 1155 (citing 8 C.F.R. § 1003.15).

As an initial matter, we do not have jurisdiction to review the BIA’s decision

denying Farhad’s motion for sua sponte reopening. Lenis, 525 F.3d at 1292, 1294.

Even if we could address the merits of Farhad’s petition, our decision in

Perez-Sanchez forecloses Farhad’s arguments. See Perez-Sanchez, 935 F.3d at

1153-57. Indeed, we held that an NTA’s failure to specify the date and time of a

4 Case: 20-10568 Date Filed: 09/22/2020 Page: 5 of 5

hearing does not divest the IJ of jurisdiction. Id. Thus, Farhad’s arguments on

appeal would be foreclosed by our prior precedent. Id.

Therefore, because the government’s position is clearly correct as a matter

of law, we GRANT the government’s motion for summary denial of Farhad’s

petition for review. See Groendyke Transp., Inc., 406 F.2d at 1162.