Reyes-Luevanos v. Barr

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 22, 2020
• Docket: 19-9545
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 22, 2020 _________________________________ Christopher M. Wolpert Clerk of Court FERNANDO REYES-LUEVANOS,

Petitioner,

v. No. 19-9545 (Petition for Review) WILLIAM P. BARR, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, MATHESON, and CARSON, Circuit Judges. _________________________________

Fernando Reyes-Luevanos, a native and citizen of Mexico, petitions for review

of an order by the Board of Immigration Appeals (BIA) dismissing his appeal from a

decision by an immigration judge (IJ) denying his application for cancellation of

removal under 8 U.S.C. § 1229b. Exercising jurisdiction under 8 U.S.C. § 1252(a),

we deny the petition for review.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. BACKGROUND

On November 13, 2009, the Department of Homeland Security (DHS) initiated

removal proceedings by serving Petitioner with a notice to appear (NTA), alleging he

was removable for having stayed beyond the one year allowed under the H-2B visa

issued to him in 2003. The NTA provided his initial appearance before an IJ would

be at a date and time “to be set.” Admin. R. at 912. Five days later, he was served

with a notice of hearing (NOH), which specified the date and time for his appearance.

At a hearing in June 2010, Petitioner conceded he was removable but requested

cancellation of removal. In September 2010, he filed an application for such relief,

alleging, among other things, that he had been continuously present in the United

States for the preceding ten years, as required by 8 U.S.C. § 1229b(b)(1)(A).

At a hearing before an IJ in 2018, Petitioner testified that he originally entered

the United States illegally in 1998, that he travelled to Mexico in 2002 to visit family

for approximately thirty days, and that he returned on a work permit, which was “the

first time” he had such a permit, id. at 134. However, Petitioner’s written application

listed three departures—March to April 2000, December 2001 to February 2002, and

an unspecified duration in 2003—each time for the purpose of visiting family in

Mexico and each time returning to the United States on an H-2B visa. When asked to

clarify the discrepancies between his application and his testimony, Petitioner stated:

(1) with regard to the departure in 2000, he did not “remember,” id. at 135; and

(2) with regard to the departure in 2001, he was “travelling” but “didn’t leave the

country,” id. (internal quotation marks omitted). Petitioner acknowledged that he

2 initially testified to one departure and explained that he was “not sure how many

times [he] went back to Mexico,” id. at 159, that he could not “seem to recall them

correctly,” id., and that he “might have left more than once, maybe twice,” id. at 160.

He later testified that he had “left perhaps two times,” id. at 183 (internal quotation

marks omitted), and that the last time was in 2002. He was unable to explain why his

passport indicated he entered the United States in September 2003 after having been

issued an H-2B visa a month prior.

The IJ found that the record “includes significant gaps” and that Petitioner’s

testimony was “equivocal,” “shifting,” “vague, conflicting, and insufficient to

establish by a preponderance of the evidence that he did not have any departures that

would cut off his physical presence.” Id. at 88-90. The IJ found that the departures

listed on the application suggest “a potential ground of ineligibility based on a more

extended departure” and that Petitioner’s “inability to recall the precise chronology

here calls into question his entire testimony regarding this time period.” Id. at 89.

The IJ concluded Petitioner failed to carry his burden of showing continuous

presence for at least ten years preceding service of the NTA on November 13, 2009.

The IJ therefore denied his application for cancellation of removal but granted him

voluntary departure.

On appeal to the BIA, Petitioner argued: (1) the IJ erred in not crediting his

testimony about his presence in the United States; and (2) his NTA failed to specify a

date and time for his hearing and, thus, was deficient under Pereira v. Sessions,

138 S. Ct. 2105 (2018), which was issued after the IJ’s decision. In particular, with

3 respect to his Pereira argument, Petitioner contended the putative NTA failed both to

confer jurisdiction on the IJ and to trigger the stop-time rule under 8 U.S.C.

§ 1229b(d)(1)(A) for purposes of his continuous presence in the United States. The

BIA found that the IJ’s factual findings were not clearly erroneous and that

Petitioner’s Pereira arguments lacked merit based on BIA precedent permitting a

two-step process, whereby an NOH can cure a defective NTA. The BIA concluded

Petitioner had failed to establish ten years of continuous physical presence prior the

service of the NOH on November 18, 2009. Accordingly, the BIA dismissed his

appeal. Petitioner timely petitioned this court for review.

DISCUSSION

Petitioner raises two arguments based on Pereira: (1) because the putative

NTA failed to specify a date and time, the IJ lacked jurisdiction; and (2) the NOH did

not cure the putative NTA and trigger the stop-time rule. We disagree with his first

argument, and although we agree with the second, we conclude a remand is not

necessary.

I. Standard of Review

“We review the BIA’s legal determinations de novo and its findings of fact

under the substantial evidence standard.” Ramirez-Coria v. Holder, 761 F.3d 1158,

1161 (10th Cir. 2014) (internal quotation mark omitted). When, as here, a single BIA

member issues a brief order affirming the IJ, “we may consult the IJ’s opinion to the

extent that the BIA relied upon or incorporated it,” including “the IJ’s more complete

4 explanation of [the] same grounds” for the BIA’s decision. Sidabutar v. Gonzales,

503 F.3d 1116, 1123 (10th Cir. 2007) (internal quotation marks omitted).

II. Analysis

“An alien seeking relief from removal bears the burden of establishing he

satisfies the eligibility requirements and merits a favorable exercise of discretion.”

Gutierrez-Orozco v. Lynch, 810 F.3d 1243, 1246 (10th Cir. 2016) (internal quotation

marks omitted). Under 8 U.S.C. § 1229b(b)(1), an alien subject to removal may

apply to have the removal cancelled if he can show, among other things, ten years of

continuous physical presence in the United States “immediately preceding the date of

such application.” Id. § 1229b(b)(1)(A). Continuous physical presence requires that

the alien not have left “the United States for any period in excess of 90 days or for

any periods in the aggregate exceeding 180 days.” Id. § 1229b(d)(2). In addition,

the period of continuous physical presence is “deemed to end . . . when the alien is

served a notice to appear under section 1229(a).” Id. § 1229(d)(1)(A). Section

1229(a) lists the required contents of an NTA, which includes “[t]he time and place

at which the [removal] proceedings will be held.” § 1229(a)(1)(G)(i).

In Pereira, the Supreme Court addressed whether service of a putative NTA

that “fails to specify either the time or place of the removal proceedings . . . trigger[s]

the stop-rule” under § 1229(d)(1)(A). Pereira, 138 S. Ct. at 2110. The Court

concluded “[t]he answer is as obvious as it seems: No.” Id. The Court held that a

putative NTA that failed to designate the time or place of removal proceedings as

specified by § 1229(a) was “not a notice to appear under section 1229(a).”

5 Id. (internal quotation marks omitted). Such a notice therefore did “not trigger the

stop-time rule” ending the period of continuous presence in the United States for

purposes of an application for cancellation of removal. Id.; see also id. at 2113-14.

Petitioner first contends his NTA failed to confer jurisdiction on the IJ because

it lacked a date and time and, thus, was not a valid NTA under Pereira. He also

contends “[a] putative NTA which lacks the time or place information is deprived of

[its] essential function as a charging document,” Apt. Opening Br. at 21, and, thus,

“is insufficient to vest jurisdiction with the Immigration Court under 8 C.F.R.

§ 1003.14(a),” id. at 23. But these jurisdictional arguments are firmly foreclosed

by our decisions in Martinez-Perez v. Barr, 947 F.3d 1273 (10th Cir. 2020), and

Lopez-Munoz v. Barr, 941 F.3d 1013 (10th Cir. 2019).

In Lopez-Munoz, we held “8 C.F.R. § 1003.14 does not establish immigration

judges’ jurisdiction.” Id. at 1016. We also rejected application of Pereira to this

context, explaining that “§ 1229(a) is non-jurisdictional,” id. at 1017, and that

Pereira was not “an implicit pronouncement on an immigration judge’s jurisdiction,”

id. at 1018. We later “follow[ed] the lead of Lopez-Munoz and join[ed] the

overwhelming chorus of our sister circuits that have already rejected similar

Pereira-based challenges.” Martinez-Perez, 947 F.3d at 1278 (internal quotation

marks omitted). In particular, we explained “the requirements relating to notices to

appear are non-jurisdictional, claim-processing rules.” Id. Accordingly, “[w]hile

Petitioner’s notice to appear was defective” because it lacked a date and time, “that

did not divest the Immigration Court of jurisdiction.” Id. at 1279.

6 Petitioner’s second Pereira argument is that the BIA erred in permitting a

two-step process to the stop-time rule. Relying on In re Mendoza-Hernandez,

27 I. & N. Dec. 520, 535 (BIA 2019), the BIA concluded Petitioner’s deficient NTA

was perfected by the NOH containing the information missing from the NTA, thereby

triggering the stop-time rule and terminating his period of continuous presence. We

recently rejected the reasoning in Mendoza-Hernandez and held “the stop-time rule is

triggered by one complete notice to appear rather than a combination of documents.”

Banuelos-Galviz v. Barr, 953 F.3d 1176, 1178 (10th Cir. 2020); see also id. at 1180

(holding “the stop-time rule is not triggered by the combination of a defective notice

to appear and a notice of hearing”). The BIA therefore erred in concluding that the

NOH triggered the stop-time rule and that Petitioner needed to show continuous

physical presence prior to service of the NOH on November 18, 2009.

Nevertheless, we decline Petitioner’s request to remand this matter to the BIA

because the result would not be any different and Petitioner has not argued otherwise.

See Nazaraghaie v. INS, 102 F.3d 460, 465 (10th Cir. 1996) (applying harmless

error). The BIA agreed with the IJ that Petitioner’s “testimony regarding his

departures was vague and conflicting” and that he failed to establish that the

departures listed on his application did “not cut-off the requisite length of continuous

physical presence.” Admin. R. at 4.

7 In particular, Petitioner noted in his application that he left in December 2001

and returned in February 2002.1 But he failed to provide specific dates, and thus, as

the IJ noted, this departure could have been as long as ninety days. And with his

2003 departure, Petitioner failed to list even the months when he left and returned.

Although Petitioner’s passport indicated he entered the United States in September

2003, the IJ found that Petitioner “was unable to confirm that he did, in fact, leave

the country in 2003” and that “[i]t is . . . unclear how long [he] was gone from the

United States” during that time. Id. at 90. Petitioner has not contested these findings

and therefore has waived any challenge to them. See Krastev v. INS, 292 F.3d 1268,

1280 (10th Cir. 2002) (“Issues not raised on appeal are deemed to be waived.”).

Accordingly, Petitioner failed to establish that he did not depart “the United

States for any period in excess of 90 days or for any periods in the aggregate

exceeding 180 days” between September 24, 2000, and his application date of

September 24, 2010. 8 U.S.C. § 1229b(d)(2).2 Therefore, notwithstanding the BIA’s

error in applying the stop-time rule, it is unnecessary to remand this matter.

1 Petitioner also listed a departure in March 2000, but that was more than ten years prior to his application in September 2010, see 8 U.S.C. § 1229b(b)(1)(A). 2 Petitioner derided as “novel” Respondent’s claim that he needed to show ten years of continuous presence prior to his application, insisting instead that he has accumulated “ten years of continuous physical presence since the initiation of proceedings and throughout the appeals process.” Aplt. Supp. Br. at 6. But the statute plainly requires ten years of continuous physical presence “immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(1) (emphasis added).

8 CONCLUSION

The petition for review is denied. Petitioner’s unopposed motion for leave to

file a supplemental brief addressing the impact of Banuelos-Galviz is granted.3

Entered for the Court

Joel M. Carson III Circuit Judge

3 The court has reviewed Petitioner’s supplemental brief, which was attached to his motion, as well as the parties’ letters under Fed. R. App. P. 28(j), addressing the impact of Banuelos-Galviz on this appeal.