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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-14370 Non-Argument Calendar ________________________
Agency No. A206-528-820
TOMAS MORALES HERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(September 13, 2019)
Before TJOFLAT, JORDAN and HULL, Circuit Judges.
PER CURIAM: Case: 18-14370 Date Filed: 09/13/2019 Page: 2 of 17
Tomas Morales Hernandez, represented by counsel, seeks review of the
Board of Immigration Appeals’ (“BIA”) decision: (1) affirming the Immigration
Judge’s (“IJ”) denial of his application for cancellation of removal; and (2)
denying his motion to remand his removal proceedings. In his petition for review,
Hernandez argues that the IJ did not have jurisdiction over his removal
proceedings because his Notice to Appear (“NTA”) omitted the date and time of
his initial hearing at Krome Service Processing Center (“Krome”), even though a
subsequent notice of hearing served on Hernandez a few weeks later contained that
information, and Hernandez, along with his counsel, appeared at his hearing.
Alternatively, Hernandez argues that the BIA erred in affirming the IJ’s
decision and in denying his motion to remand because he demonstrated that he was
of good moral character and that his U.S.-born children would experience
exceptional and extremely unusual hardship if he was removed to Mexico.
Hernandez also argues that he was deprived of his right to due process because of
errors in the transcript of his hearing on his application for cancellation of removal.
After review, we conclude, based on Perez-Sanchez v. United States
Attorney General, ___ F.3d ___, No. 18-12578, 2019 WL 3940873, at *7 (11th
Cir. Aug. 21, 2019), that the omissions in Hernandez’s NTA did not deprive the IJ
of jurisdiction. As to the merits, we conclude that we lack appellate jurisdiction to
review Hernandez’s challenge to the BIA’s decisions because they were based on
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discretionary determinations and that Hernandez has not raised a colorable due
process claim. Accordingly, we deny in part and dismiss in part Hernandez’s
petition for review.
I. FACTUAL BACKGROUND
A. Illegal Entry and Criminal History
Hernandez, a native and citizen of Mexico, entered the United States without
inspection in 2001. Since then, Hernandez has lived and worked in Florida, where
he and his wife have two young, U.S.-citizen children. Hernandez’s wife, who is
also a citizen of Mexico, is a uterine cancer survivor and is currently in remission.
Their younger son was diagnosed with an eye condition called red light reflex, and
their older son suffers from earaches. Hernandez works seasonally in construction
and as an agricultural worker but does not have a stable income. His children
receive Medicaid assistance and food stamps.
Hernandez paid income taxes beginning in 2011. He admitted that in 2014
he and his wife filed separate tax returns, each claiming one son as a dependent,
and that he did not indicate on his tax return that he was married.
Hernandez’s criminal history is somewhat unclear, but the parties agree that
in 2007 he was charged with burglary of a conveyance and petit theft in
Hillsborough County, Florida, after he stole a case of beer from a car. Hernandez
was not convicted of these offenses until December 2010, at which time he was
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sentenced to time-served plus 30 days in jail. In his removal proceedings,
Hernandez admitted that after his 2007 arrest, he pled guilty and paid a bond, but
he could not remember if he failed to return to court or absconded and could not
explain the four-year gap between his 2007 arrest and 2010 conviction.
Meanwhile, in October 2010, after a car accident, Hernandez was arrested
for driving under the influence (“DUI”) and driving without a valid driver’s license
in Hillsborough County. In January 2011, Hernandez was found guilty of DUI,
and the driver’s license charge was dismissed. After Hernandez violated his state
probation on the DUI conviction, Immigration and Customs Enforcement arrested
Hernandez in 2014.
B. Notice to Appear
On February 6, 2014, Hernandez was detained in the custody of the
Department of Homeland Security (“DHS”) at Krome. On that date, DHS served
Hernandez with an NTA, which charged him with removability: (1) under the
Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C.
§ 1182(a)(6)(A)(i), as an alien present in the United States without being admitted
or paroled; (2) under INA § 212(a)(7)(A)(i), 8 U.S.C. § 1182(a)(7)(A)(i), for being
an immigrant not in possession of a valid, unexpired immigrant visa or other entry
document; and (3) under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182 (a)(2)(A)(i)(I),
as an alien who was convicted of acts which constituted the essential elements of a
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crime involving moral turpitude. The NTA specified that Hernandez was ordered
to appear before an Immigration Judge at Krome on a date “to be set” and at a time
“to be set.”
C. Subsequent Notices of Hearings
On February 20, 2014, Hernandez, who was still detained at Krome, was
served with a notice of hearing (“NOH”) from the immigration court, which stated
that a hearing at Krome was set for February 25, 2014 at 9:00 a.m. Hernandez was
present at the February 25, 2014 hearing, and his newly retained counsel asked via
telephone that the hearing be reset. The IJ granted the request, and Hernandez was
personally served with another copy of the original NTA and also a new NOH
setting a master hearing at Krome for February 27, 2014 at 8:00 a.m. At the
February 27, 2014 hearing, Hernandez was released on bond, and a third notice of
hearing was served on Hernandez’s counsel setting the master hearing for March
31, 2014 at 8:00 a.m. in Miami, Florida.
D. Removal Hearing
After a change of venue to Orlando, Florida, Hernandez’s removal hearing
ultimately was held on October 15, 2014. Hernandez, represented by counsel,
admitted the factual allegations in the NTA, stood silent on the charges of entering
the United States without admission or parole and without a valid, unexpired
immigrant visa or other entry document, and denied the charge of being convicted
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of a crime involving moral turpitude. The IJ sustained the first two charges, but
not the charge for a crime involving moral turpitude.
E. Cancellation of Removal
Hernandez filed an application for cancellation of removal based on
hardship to his U.S.-citizen children and for adjustment of status. 1 Hernandez
argued, inter alia, that his younger son’s eye condition required monitoring and
testing for vision abnormalities, such as cataracts, glaucoma or retinoblastoma,
some of which could be life-threatening or require corrective surgery, and that,
without proper documentation, his U.S.-born son would not have access to
healthcare services in Mexico.
After a merits hearing, at which Hernandez and his wife testified, the IJ
denied Hernandez’s application for cancellation of removal. The IJ found that,
although Hernandez had been continuously physically present in the United States
for at least ten years and had not been convicted of a crime involving moral
turpitude, Hernandez could not satisfy the statutory requirements: (1) that he was a
person of good moral character; or (2) that his qualifying family members—his
children—would experience exceptional and extremely unusual hardship. The IJ
1 Hernandez also applied for withholding of removal and relief under the Convention Against Torture (“CAT”) based on his membership in a particular social group, which the IJ denied. Because Hernandez’s counseled brief offers no substantive arguments concerning those claims, we do not address them further. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
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stated that he had “significant issues with [Hernandez’s] overall credibility,
especially as it relate[d] to his inability to remember much of anything about his
arrests, failure to appear for his criminal court hearing, and his convictions.”
Alternatively, the IJ denied Hernandez’s application for cancellation as a
matter of discretion. The IJ explained that “even if . . . respondent met the
hardship requirement,” the IJ denied relief as a matter of discretion because of
Hernandez’s history of alcohol abuse, the fact that he “was arrested, processed, and
released on a bond, but failed to appear for his hearing,” his failure to pay taxes
between 2001 and 2010, and his failure to properly file a joint tax return with his
wife correctly claiming both sons in 2014. The IJ stated that Hernandez had not
“demonstrated a willingness or ability to follow certain of this society’s basic
requirements, such as obeying the criminal code, paying the taxes owed, driving
with a valid driver’s license, and appearing for all criminal court hearings as
required, and following through with his conditions of probation,” and stated that
“[t]hese factors undercut [Hernandez’s] claim of acculturation and membership in
this society.”
F. BIA Appeal
Hernandez appealed to the BIA, arguing that he had submitted sufficient
evidence of his good moral character and of the exceptional and extremely unusual
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hardship to his children if he was removed to Mexico. Hernandez also argued that
he merited relief as a matter of discretion.
While his appeal was pending, Hernandez filed a motion to remand his case
to the IJ to reconsider his application for cancellation of removal in light of new
evidence that his younger son had been diagnosed with developmental and
communicative delays. Hernandez also argued the BIA should remand his case
because the transcript of his merits hearing was incomplete and inadequate, which
amounted to a denial of due process.
The BIA dismissed Hernandez’s appeal and denied his motion to remand.
The BIA expressly adopted and affirmed the IJ’s decision denying Hernandez
cancellation of removal. The BIA agreed that Hernandez did not show that his
removal would result in an exceptional and extremely unusual hardship to his
children. Specifically, the BIA determined that Hernandez had not shown that his
younger son would be unable to receive medical treatment in Mexico, even if that
treatment was more expensive, or that Hernandez would be unable to find work in
Mexico. The BIA agreed with the IJ’s finding that Hernandez was statutorily
ineligible for cancellation of removal because he did not meet his burden of
showing the requisite good moral character and also affirmed the IJ’s denial of
Hernandez’s application as an exercise of discretion.
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As to Hernandez’s due process claim that his hearing transcript was
deficient, the BIA found that Hernandez had not pointed to specific evidence or
testimony that would have otherwise been presented if there had not been
transcription errors or shown how any transcription errors made a difference to the
outcome of his case.
With respect to Hernandez’s motion to remand, the BIA found that, although
the new evidence of his son’s developmental delays was unavailable at the time of
the IJ’s hearing, Hernandez had not shown that the evidence would have affected
the outcome of the case. The BIA explained that the new evidence did not show
that Hernandez’s son would not receive treatment in Mexico, but only that the
treatment would not be comparable to the treatment available in the United States.
Additionally, the BIA explained that the new evidence “did not impact the
Immigration Judge’s findings that [Hernandez] did not establish the requisite good
moral character or that he does not deserve a favorable exer[c]ise of discretion in
light of the adverse factors.”
II. DISCUSSION
A. Omissions in the Notice to Appear
On appeal and for the first time, Hernandez argues that the immigration
court did not have jurisdiction over his removal proceedings because his NTA
omitted the date and time of his first removal hearing at Krome. In support of his
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jurisdictional argument, Hernandez cites the Supreme Court’s recent decision in
Pereira v. Sessions, 585 U.S. ___, 138 S. Ct. 2105 (2018). We review subject
matter jurisdiction de novo. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221
(11th Cir. 2006).
This Court recently addressed the same argument Hernandez raises here. In
Perez-Sanchez, the alien, relying on Pereira, argued that the IJ “never had
jurisdiction over his removal case,” because his NTA “did not include either the
time or date of his removal hearing.” Perez-Sanchez, ___ F.3d at ___, 2019 WL
3940873, at *1. This Court determined that the alien’s NTA was defective under
INA § 239(a)(1), 8 U.S.C. § 1229(a)(1), because it did not include the hearing’s
date and time. Id. at ___, 2019 WL 3940873, at *4. However, this Court then
concluded that the defect did not deprive the agency of jurisdiction over the alien’s
removal proceedings because the “time-and-place requirement” in INA
§ 239(a)(1), 8 U.S.C. § 1229(a)(1), does not “create a jurisdictional rule.” Id. at
___, 2019 WL 3940873, at *4.2
2 In a provision entitled “Initiation of removal proceedings,” the INA requires that an alien in removal proceedings be given a written notice to appear specifying certain information about the proceedings, including, among other things, the “nature of the proceedings,” the “legal authority under which the proceedings are conducted,” the “charges against the alien,” and that the alien may secure his or her own representation (and include a current list of available pro bono counsel the alien may contact). INA § 239(a)(1)(A)-(G), 8 U.S.C. § 1229(a)(1)(A)-(G). The notice to appear must also include the “time and place at which the proceedings will be held.” INA § 239(a)(1)(G)(i), 8 U.S.C. § 1229(a)(1)(G)(i). But this provision of the INA does not speak in terms of vesting jurisdiction.
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In so holding, this Court joined eight other Circuits that have rejected the
argument that Pereira pronounced a broad jurisdictional rule and have concluded
that the omission of the time and place of the removal hearing from an NTA does
not deprive the immigration court of jurisdiction over removal proceedings. See
Pierre-Paul v. Barr, 930 F.3d 684, 689-90 (5th Cir. 2019); United States v. Cortez,
930 F.3d 350, 363-65 (4th Cir. 2019); Nkomo v. Att’y Gen, 930 F.3d 129, 133-34
(3d Cir. 2019); Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019); Ortiz-Santiago v.
Barr, 924 F.3d 956, 958, 962-64 (7th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d
101, 105, 110-12 (2d Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1160-61
(9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305, 314-15 (6th Cir.
2018).
The Perez-Sanchez Court also agreed with the Fourth, Fifth, and Seventh
Circuits that the agency’s regulation, 8 C.F.R. § 1003.14,3 “despite its language,
3 Under 8 C.F.R. § 1003.14, entitled “Jurisdiction and commencement of proceedings,” “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” Id. § 1003.14(a). The regulations define “charging document” as a “written instrument which initiates a proceeding before the Immigration Judge.” Id. § 1003.13. The three documents given as examples of a “charging document” are “a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien.” Id. The regulations list the information the Service must include in the notice to appear, such as the nature of the proceedings, the legal authority under which the proceedings are conducted, and the charges against the alien. However, this list does not include the time and place of the initial hearing. Id. § 1003.15(b). Rather, the regulations require the Service to “provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable.” Id. § 1003.18(b) (emphasis added). However, “[i]f that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing.” Id.
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sets forth not a jurisdictional rule but a claim-processing one.” ___ F.3d at ___,
2019 WL 3940873, at *5-6 (explaining that “an agency cannot fashion a
procedural rule to limit jurisdiction bestowed upon it by Congress”); see also
Pierre-Paul, 930 F.3d at 691-93; Cortez, 930 F.3d at 358-62; Ortiz-Santiago, 924
F.3d at 963-64. Having determined that “the IJ and the BIA properly exercised
jurisdiction over [the alien’s] removal hearing based on the authority conferred
upon them by 8 U.S.C. § 1229a(a)(1),” this Court denied the alien’s “petition for
review as to his Pereira claim.” Perez-Sanchez, ___ F.3d at ___, 2019 WL
3940873, at *7. To the extent the alien argued he was entitled to a remand
“because his NTA violated the agency’s claim-processing rules,” the Court
dismissed the alien’s petition for lack of jurisdiction, explaining that the alien
“failed to exhaust the claim before the agency.” Id.
In this case, under Perez-Sanchez, the IJ had jurisdiction over Hernandez’s
removal proceedings upon the filing of the initial NTA, despite the fact that the
NTA did not specify the date and time of Hernandez’s next hearing. Accordingly,
we deny Hernandez’s petition as to his Pereira claim. To the extent Hernandez
argues that the NTA was defective under the agency’s claim-processing rules, we
dismiss his petition for lack of jurisdiction because, like the alien in Perez-
Sanchez, Hernandez did not exhaust this issue before the BIA.
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In any event, we note that the subsequent notice of hearing Hernandez
received two weeks later did specify the date and time of his next hearing at
Krome, and Hernandez and his attorney in fact appeared at that hearing and all
other hearings throughout his removal proceedings. The subsequent prompt notice
of hearing cured the defect and made the defect harmless. See, e.g., Pierre-Paul v.
Barr, 930 F.3d 684, 690-91 (5th Cir. 2019) (concluding that a subsequently sent
notice of hearing containing the time and place of the removal hearing cures any
defect in the NTA); Banegas Gomez v. Barr, 922 F.3d 101, 112 (2d Cir. 2019)
(same); In re Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018) (same).
B. Denial of Cancellation of Removal and Motion to Remand
Hernandez argues that the BIA abused its discretion in affirming the IJ’s
finding that he was not entitled to cancellation of removal as a matter of discretion
and also in denying his motion to remand to consider new evidence. We agree
with the government that we lack jurisdiction to review these claims.4
The Attorney General has the discretion to cancel removal of a non-
permanent alien who is inadmissible or removable from the United States if the
alien establishes, among other requirements, that he was of good moral character
and that removal would result in exceptional and extremely unusual hardship to his
4 We review jurisdictional questions de novo. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006).
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child, who is a U.S. citizen. INA § 240A(b)(1)(B), (D), 8 U.S.C.
§ 1229b(b)(1)(B), (D). This Court, however, lacks jurisdiction to review the BIA’s
discretionary decisions that an alien failed to show good moral character under the
“catchall provision” of INA § 101(f), 8 U.S.C. § 1101(f), or failed to show that his
qualifying relative would suffer exceptional and extremely unusual hardship,
except to the extent his petition raises a constitutional claim or question of law.
See INA § 242(a)(2)(B), (D), 8 U.S.C. § 1252(a)(2)(B), (D); see also Jimenez-
Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1210-11 (11th Cir. 2012) (good moral
character); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221-22 (11th Cir. 2006)
(hardship).
Here, Hernandez does not raise any question of law or constitutional claim
with regard to the denial of his application for cancellation of removal. Instead, he
merely argues that the BIA abused its discretion. We lack jurisdiction to review
the BIA’s purely discretionary determinations as to whether Hernandez showed
good moral character or satisfied the exceptional and extremely unusual hardship
standard for cancellation of removal.
The same is true for the BIA’s denial of Hernandez’s motion to remand,
which the BIA evaluated under the standards of a motion to reopen. See Al Najjar
v. Ashcroft, 257 F.3d 1262, 1301 (11th Cir. 2001) (explaining that a motion to
remand to introduce previously unavailable evidence is treated as a motion to
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reopen); INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7). The BIA concluded, among
other things, that Hernandez’s new evidence of his son’s developmental delays did
not affect the IJ’s discretionary determinations that he had not shown the requisite
good moral character or that he deserved a favorable exercise of discretion.
We ordinarily have jurisdiction to review the denial of a motion to reopen or
reconsider. See Kucana v. Holder, 558 U.S. 233, 244-50, 130 S. Ct. 827, 835-38
(2010) (concluding that INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), does not
strip courts of jurisdiction to review denials of motions to reopen or reconsider
made pursuant to 8 C.F.R. § 1003.2). However, when, as here, review of the
underlying order is precluded by the INA’s jurisdiction-stripping provisions, our
“jurisdiction to entertain an attack on that order mounted through filing of a motion
to reopen” is also curtailed. Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1262 (11th
Cir. 2003); see also Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d 1311, 1313-14
(11th Cir. 2013).
For these reasons, to the extent Hernandez seeks review of the denial of
cancellation of removal or the denial of his subsequent motion to remand, we
dismiss his petition for lack of jurisdiction.
C. Due Process Claim
We retain jurisdiction under the INA to consider constitutional claims and
questions of law and review constitutional claims concerning a deprivation of due
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process de novo. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Martinez, 446
F.3d at 1221-22; Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). For
this Court to possess jurisdiction pursuant to the constitutional claim exception, the
petitioner must allege “at least a colorable constitutional violation.” Arias v. U.S.
Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007) (internal quotation marks
omitted). A colorable due process claim requires the alien to show that he was
deprived of liberty without due process and the asserted error caused him
substantial prejudice. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir.
2010). Because a petitioner has no constitutionally protected interest in purely
discretionary forms of relief, the failure to receive discretionary relief cannot
amount to a due process violation. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244,
1253 (11th Cir. 2008).
Here, Hernandez argues that he was denied due process because the
immigration court furnished him with an incomplete transcript of his hearing on
his application for cancellation of removal. Hernandez claims he was prejudiced
by the deficient transcript because he was unable to properly appeal to the BIA.
Hernandez has no cognizable due process interest here, however, because
cancellation of removal is a discretionary form of relief. See Scheerer, 513 F.3d at
1253.
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In any event, even if Hernandez’s claim was colorable, he did not show that
he was substantially prejudiced by the deficient transcript. Hernandez argues only
that an accurate transcript would have shown he was an individual of good moral
character and that his children would experience exceptional and extremely
unusual hardship. He does not make any argument as to the IJ’s alternative basis
for denying his application for cancellation of removal as a matter of discretion.
Therefore, Hernandez did not show that the outcome of his proceeding would have
been different but for the alleged due process violation.
PETITION DENIED IN PART AND DISMISSED IN PART.