Pastor v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: December 4, 2020
• Docket: 19-77
• Status: Unpublished

Opinion

19-77 Pastor v. Barr BIA A088 444 106 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 4th day of December, two thousand twenty. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 ROBERT D. SACK, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 NATALIO C. PASTOR, 14 Petitioner, 15 16 v. 19-77 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Rene Kathawala, Paige Pavone, 24 Orrick, Herrington & Sutcliffe 25 LLP, New York, NY; Dan R. Smulian, 26 Catholic Charities Community 27 Services, New York, NY. 28 29 1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Jessica E. Burns, Senior 3 Litigation Counsel; Keith I. 4 McManus, Assistant Director, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC. 8 9 FOR MOVANT AMICI CURAE: Alina Das, Jessica Rofé, Jessica 10 Swensen, Washington Square Legal 11 Services, Inc. Immigrant Rights 12 Clinic, New York, NY. 13

14 UPON DUE CONSIDERATION of this petition for review of a

15 Board of Immigration Appeals (“BIA”) decision, it is hereby

16 ORDERED, ADJUDGED, AND DECREED that the petition for review

17 is DENIED.

18 Petitioner Natalio C. Pastor, a native and citizen of

19 Mexico, seeks review of a December 21, 2018, decision of the

20 BIA denying his motion to reopen and terminate his immigration

21 proceedings. In re Pastor, No. A 088 444 106 (B.I.A. Dec.

22 21, 2018). The Washington Square Legal Services, Inc.

23 Immigrant Rights Clinic moves to file a late-filed brief on

24 behalf of amici curiae former immigration judges and members

25 of the Board of Immigration Appeals. We assume the parties’

26 familiarity with the underlying facts and procedural history.

27 We review the BIA’s denial of a motion to reopen for

28 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

2 1 Cir. 2006). There was no abuse of discretion here.

2 Pastor’s sole argument, that that the agency lacked

3 jurisdiction over his removal proceedings because his notice

4 to appear (“NTA”) did not include a hearing time and place,

5 is foreclosed by our decision in Banegas Gomez v. Barr, 922

6 F.3d 101 (2d Cir. 2019). In Pereira v. Sessions, 138 S. Ct.

7 2105, 2113–14 (2018), the Supreme Court held that an NTA that

8 fails to specify a time or place of hearing as required in 8

9 U.S.C. § 1229(a)(1) does not stop the accrual of continuous

10 presence required for cancellation of removal as set forth in

11 8 U.S.C. § 1229b(d)(1). Following that decision, we held in

12 Banegas Gomez that “an NTA that omits information regarding

13 the time and date of the initial removal hearing is

14 nevertheless adequate to vest jurisdiction in the Immigration

15 Court, at least so long as a notice of hearing specifying

16 this information is later sent to the alien.” 922 F.3d at

17 112. Although the NTA at issue in Banegas Gomez did not also

18 omit the place of the hearing, as the NTA did in this case,

19 we observed that Pereira addressed a narrow question

20 regarding the stop-time rule and does not “void jurisdiction

21 in cases in which an NTA omits a hearing time or place.” Id.

22 at 110. Pastor’s NTA omitted the time, date, and place of

3 1 the hearing, but he received a hearing notice containing this

2 information. Both notices certified that Pastor was

3 personally served, he does not argue that he did not receive

4 the documents, and he appeared at his hearing. Accordingly,

5 the immigration court had jurisdiction. We do not consider

6 Pastor’s argument that Banegas Gomez was wrongly decided

7 because the opinion is binding “unless and until it is

8 overruled by the Court en banc” or called into question by

9 the Supreme Court. See Deem v. DiMella-Deem, 941 F.3d 618,

10 623 (2d Cir. 2019). We deny the Clinic’s motion to file an

11 amicus brief because the proposed brief predates Banegas

12 Gomez.

13 For the foregoing reasons, the petition for review is

14 DENIED. All pending motions and applications are DENIED and

15 stays VACATED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court