Raul Deocampo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 5, 2019
• Docket: 19-70091
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 5 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAUL MOLINA DEOCAMPO, No. 16-72298 19-70091 Petitioner, Agency No. A031-252-889 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Submitted March 1, 2019**

Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON,*** District Judge.

Petitioner Raul Molina Deocampo (“Petitioner”) is a native and citizen of

the Philippines. He petitions for review of a Board of Immigration Appeals

* 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). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. (“BIA”) decision denying his motion to reopen and terminate his removal

proceedings based on the Supreme Court’s holding in Pereira v. Sessions, 138 S.

Ct. 2105 (2018).1 Additionally, although a stay of removal is already in effect,

Petitioner again moves the Court to stay his removal.

On February 7, 2019, the Government (“Respondent”) filed three motions in

response to Petitioner’s petition for review: (1) to consolidate the petitions for

review in Nos. 19-70091 and 16-72298, as required by the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1252(b)(6); (2) to summarily deny the petition

for review in No. 19-70091 under Ninth Circuit Rule 3-6(b) because Petitioner’s

position has been foreclosed by this Court’s opinion in Karingithi v. Whitaker, 913

F.3d 1158, 1160 (9th Cir. 2019); and (3) to suspend filing deadlines where further

filings would be futile. On February 19, 2019, Petitioner filed his Response in

Opposition to Respondent’s Motion for Summary Disposition, and moved for his

petition for review in No. 19-70091 to “be heard by the [C]ourt en banc pursuant

to Rule 35 of the Federal Rules of Appellate Procedure.”2 On March 1, 2019, the

Court granted Respondent’s motions to consolidate and suspend filing deadlines.

We have reviewed the record and Petitioner’s filings in this Court, including

1 This is Petitioner’s second petition for review, originally filed under No. 19- 70091. We address the first petition for review (in No. 16-72298) in a separate memorandum disposition filed contemporaneously with this memorandum disposition. The Court previously consolidated both cases. 2 Petitioner’s Rule 35 request for en banc review is premature.

2 Petitioner’s Opposition. This petition for review is appropriate for summary

disposition under Ninth Circuit Rule 3-6 because Petitioner’s argument is

foreclosed by Ninth Circuit authority. See United States v. Hooton, 693 F.2d 857,

858 (9th Cir. 1982) (per curiam) (setting standard). Deocampo’s petition for

review is denied.

Petitioner’s argument that the notice to appear (NTA) that commenced his

removal proceeding was insufficiently detailed to vest jurisdiction has already been

rejected in Karingithi. See 913 F.3d at 1160. In Karingithi, the Court explained

that jurisdiction vests in the Immigration Judge (“IJ”) when a charging document,

such as an NTA, is filed with the Immigration Court. Id. at 1159–60 (citing 8

C.F.R. §§ 1003.13, 1003.14(a)). While 8 C.F.R. § 1003.15(b) details the specific

information than an NTA must contain in order to properly vest jurisdiction in the

IJ, “the regulation does not require that the time and date of proceedings appear in

the initial notice.” Id. at 1160; see 8 C.F.R. § 1003.15(b). Instead, “the regulation

compels inclusion of such information where practicable.” Karingithi, 913 F.3d at

1160 (citation and quotation omitted).3 If “the time, place and date of the initial

removal hearing” are not included in the NTA, the Immigration Court is

“responsible for scheduling . . . and providing notice to . . . the alien of the time,

3 Although Karingithi did not consider “place,” 8 C.F.R. § 1003.18 lists “place” alongside “time” and “date” as information that can be included “where practicable.” 8 C.F.R. § 1003.18.

3 place, and date of [the] hearing.” 8 C.F.R. § 1003.18(b).

Petitioner’s attempts to frame Karingithi as a misreading of the Supreme

Court’s holding in Pereira are unpersuasive.4 In Pereira, the Supreme Court was

extremely careful to confine its holding to the very narrow statutory intersection

between 8 U.S.C. § 1229b(d)(1)’s stop-time rule and 8 U.S.C. § 1229(a)’s

definition of an NTA. 138 S. Ct. at 2110. Neither Pereira nor 8 U.S.C. § 1229

reference the jurisdictional question at issue in Karingithi. Karingithi, 913 F. 3d at

1160–61. Consequently, Pereira is inapplicable to the petition for review at issue.

The petition for review is DENIED.

4 And, in any event, we are bound by Karingithi. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (holding that this court is bound by prior circuit authority unless it is clearly irreconcilable with intervening higher authority).