Vera-Villa v. McHenry

• Court: Court of Appeals for the Second Circuit
• Decided: January 22, 2025
• Docket: 23-6239
• Status: Unpublished

Opinion

23-6239 Vera-Villa v. McHenry BIA A096 434 293

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 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 22nd day of January, two thousand 4 twenty-five. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 GERARD E. LYNCH, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 CESAR GUILLERMO VERA-VILLA, 13 Petitioner, 14 15 v. 23-6239 16 NAC 17 JAMES R. MCHENRY III, ACTING 18 UNITED STATES ATTORNEY 19 GENERAL, 20 Respondent.* 21 _____________________________________

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General James R. McHenry III is automatically substituted for former Attorney General Merrick B. Garland as Respondent. 1 FOR PETITIONER: Mercedes Altman, Westbury, NY. 2 3 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 4 Attorney General; Lindsay B. Glauner, Senior 5 Litigation Counsel; Jennifer P. Williams, Trial 6 Attorney, Office of Immigration Litigation, 7 United States Department of Justice, 8 Washington, DC. 9 10 UPON DUE CONSIDERATION of this petition for review of a Board of

11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

12 DECREED that the petition for review is DENIED.

13 Petitioner Cesar Guillermo Vera-Villa, a native and citizen of Ecuador, seeks

14 review of a February 8, 2023, decision of the BIA denying his motion to reopen and

15 terminate his removal proceedings. In re Cesar Guillermo Vera-Villa, No. A 096 434

16 293 (B.I.A. Feb. 8, 2023). We assume the parties’ familiarity with the underlying

17 facts and procedural history.

18 We deny the petition because Vera-Villa has not shown that the BIA abused

19 its discretion. See Li Chen v. Garland, 43 F.4th 244, 249 (2d Cir. 2022) (reviewing

20 denial of motion to reopen for abuse of discretion).

21 First, as the Government points out, Vera-Villa has abandoned a dispositive

22 basis for the BIA’s denial of his motion because he does not challenge its

23 conclusion that his 2021 motion was untimely to reopen proceedings that were

2 1 administratively final in 2019. See 8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day

2 deadline for motions to reopen); Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023)

3 (“We consider abandoned any claims not adequately presented in an appellant’s

4 brief, and an appellant’s failure to make legal or factual arguments constitutes

5 abandonment.” (quotation marks omitted)).

6 Second, even absent the time-bar ruling, Vera-Villa’s challenge to the

7 agency’s jurisdiction over his removal proceedings fails. In Pereira v. Sessions, the

8 Supreme Court held that the Immigration and Nationality Act unambiguously

9 requires a notice to appear (“NTA”) to include a hearing time and place to trigger

10 the “stop-time rule,” 585 U.S. 198, 208–19 (2018), which cuts off the accrual of

11 physical presence or residence for the purposes of qualifying for cancellation of

12 removal, see 8 U.S.C. § 1229b(a), (b), (d)(1). Then in Niz-Chavez v. Garland, the

13 Supreme Court held that, for purposes of the “stop-time” rule, a hearing notice is

14 insufficient to cure a defect in an NTA. 593 U.S. 155, 160–71 (2021). Vera-Villa

15 argued before the agency—and again here—that his NTA, which did not include

16 the hearing information, was insufficient to vest jurisdiction with the immigration

17 judge. However, the stop-time rule is not relevant in his case, and his jurisdictional

18 argument is foreclosed: an NTA that does not state the time and place of an initial

19 hearing is sufficient to vest jurisdiction where a subsequent hearing notice 3 1 provides the missing information. Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d

2 Cir. 2019); see also Chery v. Garland, 16 F.4th 980, 987 (2d Cir. 2021) (“Banegas Gomez

3 remains good law even after the Supreme Court’s opinion in Niz-Chavez.”). Here,

4 a hearing notice was sent to Vera-Villa, and he appeared at his hearings.

5 Finally, we lack jurisdiction to consider Vera-Villa’s request that we

6 determine his eligibility for an exercise of prosecutorial discretion by the

7 Department of Homeland Security. See 8 U.S.C. § 1252(a)(1) (providing courts of

8 appeals jurisdiction to review removal orders), (g) (“Except as provided in [§ 1252]

9 and notwithstanding any other provision of law . . . no court shall have jurisdiction

10 to hear any cause or claim by or on behalf of any alien arising from the decision or

11 action . . . to commence proceedings, adjudicate cases, or execute removal orders

12 against any alien under this chapter.”).

13 For the foregoing reasons, the petition for review is DENIED. All pending

14 motions and applications are DENIED and stays VACATED.

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