Moreno-Lopez v. Barr ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
LUIS MORENO-LOPEZ,
Petitioner,
v. No. 18-9584
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges.
_________________________________
An immigration judge (IJ) denied Luis Moreno-Lopez’s (Mr. Moreno)
application for voluntary departure and ordered him removed to Mexico. He
appealed to the Board of Immigration Appeals (BIA or Board). While his appeal was
pending, he filed a motion to terminate or remand proceedings under Pereira v.
Sessions, 138 S. Ct. 2105 (2018). The BIA denied the motion to remand and
dismissed his appeal. Mr. Moreno petitions for review of the BIA’s order.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for
review in part, deny in part, and remand to the BIA for further proceedings. In doing
so, we distinguish Pereira to conclude that the Immigration Court had jurisdiction
over the removal proceeding even though the notice to appear (NTA) failed to
designate a time and place for the proceeding. But, as regards the motion to remand
for consideration of cancellation of removal to allow Mr. Moreno to demonstrate
presence in the United States for a continuous period of not less than 10 years
immediately preceding the date of said application, see 8 U.S.C. § 1229b(b)(1), we
conclude Banuelos-Galviz v. Barr, 953 F.3d 1176 (10th Cir. 2020), controls.
Banuelos-Galviz held a petitioner is not disqualified from seeking cancellation of
removal based on a combination of an incomplete NTA and a notice of hearing
(NOH), such as Mr. Moreno received here. See id. at 1184.
I.
Mr. Moreno is a native and citizen of Mexico. He asserts he entered this
country in January 2000. In April 2008 an IJ permitted him to voluntarily depart the
United States. He claims he reentered this country two weeks later, on April 24,
2008.
In February 2017 the Department of Homeland Security (DHS) served a NTA
on Mr. Moreno. The NTA stated he had entered the United States at an unknown
place and date. It charged him with removability as an alien who was present in the
United States without being admitted or paroled and ordered him to appear before an
IJ at a date and time “[t]o be set.” R. at 96.
2
The DHS later served a NOH on Mr. Moreno. The NOH required his
appearance at an IJ hearing scheduled on April 24, 2017. Mr. Moreno appeared at
the hearing. At a later hearing he conceded he was removable and designated Mexico
as the country of removal.
Mr. Moreno applied for cancellation of removal, but he later withdrew that
application. At a hearing in October 2017, his attorney explained that because of his
voluntary departure in 2008, “[w]e do not believe he meets the statutory requirement
of ten [years of] physical presence” in the United States for a cancellation claim. Id.
at 74. Instead, he requested voluntary departure.
The IJ denied voluntary departure, finding that Mr. Moreno was ineligible
based on the 2008 grant of voluntary departure after he was found inadmissible for
entering the United States without inspection. See 8 U.S.C. § 1229c(c). The IJ thus
ordered Mr. Moreno removed to Mexico.
Mr. Moreno appealed to the BIA. While his appeal was pending, he filed a
motion to terminate or remand proceedings based on Pereira. He requested two
forms of relief. First, he argued for termination of the proceedings because the
failure of the NTA to designate the date and time of his hearing meant the
immigration court lacked both personal and subject-matter jurisdiction to order him
removed to Mexico. Second, in a two-sentence argument at the end of the motion, he
argued alternatively that the BIA should remand proceedings to the IJ because he
“would be eligible for . . . cancellation [of removal] but for the defective [NTA].” R.
at 21.
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The BIA affirmed the IJ’s finding that Mr. Moreno was ineligible for
voluntary departure.1 Relying on its precedent in Matter of Bermudez-Cota,
27 I. & N. Dec. 441 (BIA 2018), it denied his Pereira-based motion to terminate the
proceedings, finding that the NTA in combination with the NOH had vested the IJ
with jurisdiction. The BIA did not address Mr. Moreno’s separate argument that the
case should be remanded to the IJ so he could apply for cancellation of removal.
II.
A.
Where, as here, a single BIA member affirmed the IJ’s decision in a brief
order, we review the BIA’s opinion, but “when seeking to understand the grounds
provided by the BIA, we are not precluded from consulting the IJ’s more complete
explanation of those same grounds.” Neri-Garcia v. Holder, 696 F.3d 1003, 1008-09
(10th Cir. 2012) (quotation marks omitted). We review the BIA’s legal
determinations de novo and its factual findings for substantial evidence. See
Luevano v. Holder, 660 F.3d 1207, 1211 (10th Cir. 2011). We review its denial of a
motion to remand under the deferential abuse-of-discretion standard. Neri-Garcia,
696 F.3d at 1009.
B.
Mr. Moreno argues the BIA erred in determining that the immigration court
acquired jurisdiction through service of the defective NTA coupled with the NOH
1
Mr. Moreno does not appear to challenge this aspect of the BIA’s decision.
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that stated the time and place of his removal hearing. He contends the BIA’s
decision conflicts with Pereira. In Pereira, the Supreme Court held that “[a] putative
notice to appear that fail[ed] to designate the specific time or place of the
noncitizen’s removal proceedings [was] not a notice to appear under section 1229(a)”
of the immigration statutes. Pereira, 138 S. Ct. at 2113-14 (internal quotation marks
omitted). Such a notice therefore did not trigger the stop-time rule ending the
noncitizen’s period of continuous presence in the United States for purposes of a
cancellation-of-removal application. See id.; 8 U.S.C. § 1229b(d)(1).
We recently rejected arguments that Pereira should be read to hold that a
defective NTA deprives the immigration court of jurisdiction. See Martinez-Perez v.
Barr, 947 F.3d 1273, 1277-78 (10th Cir. 2020); Lopez-Munoz v. Barr, 941 F.3d 1013,
1017-18 (10th Cir. 2019). For the reasons stated in those cases, we also reject
Mr. Moreno’s jurisdictional argument.2
2
Mr. Moreno also argues that the immigration court lacked personal
jurisdiction over him due to the defective NTA. He analogizes service of an NTA to
service of a civil complaint under Fed. R. Civ. P. 4, see Pet’r Opening Br. at 17-18,
and contends that “an NTA lacking time and place information cannot confer
personal jurisdiction over an individual because it does not contain the necessary
information required by the rules,” id. at 18. To the extent this represents an
argument separate from his Pereira-based subject-matter jurisdiction argument, we
reject it. The absence of personal jurisdiction may be waived. See Trujillo v.
Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (citing Fed. R. Civ. P. 12(h)(1)).
Mr. Moreno’s repeated appearance at proceedings before the IJ without objection
irrefutably waived any claim that the immigration court lacked personal jurisdiction
over him.
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C.
This leaves us with Mr. Moreno’s alternate Pereira-based argument: that the
BIA should have remanded to permit him to apply for cancellation of removal. He
made this argument to the BIA, giving the Board the opportunity to rule on it. See
Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (“[A noncitizen]
must present the same specific legal theory to the BIA before he or she may advance
it in court.” (emphasis omitted)). The issue is therefore preserved, albeit minimally,
for our review.
The Attorney General may grant cancellation of removal to a noncitizen who
is subject to removal from the United States if the noncitizen
(A) has been physically present in the United States for a continuous period
of not less than 10 years immediately preceding the date of such
application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under [8 U.S.C. §§] 1182(a)(2),
1227(a)(2), or 1227(a)(3) . . . ; and
(D) establishes that removal would result in exceptional and extremely
unusual hardship to [his] spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent residence.
8 U.S.C. § 1229b(b)(1).
The government contends the BIA’s failure to remand for the IJ to consider
cancellation relief was harmless because Mr. Moreno cannot meet the first of these
requirements: ten years of continuous physical presence within the United States.
Mr. Moreno claims he last reentered the United States on April 24, 2008. The
cancellation statute’s stop-time rule states that “any period of . . . continuous physical
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presence in the United States shall be deemed to end . . . when the alien is served a
notice to appear.” 8 U.S.C. § 1229b(d)(1). The agency served the NTA on
Mr. Moreno in February 2017, less than ten years after he entered this country.3 As
previously noted, however, an NTA that does not specify the hearing date and time
does not trigger the stop-time rule. See Pereira, 138 S. Ct. at 2113-14. Thus, if
Pereira applies here, the NTA did not bar Mr. Moreno from seeking cancellation
relief.
The government argues Pereira does not apply here because DHS later served
Mr. Moreno with a NOH that stated the date and time of the hearing. The
combination of these two documents, it contends, activated the stop-time rule. But
we recently rejected a similar argument, concluding that “the stop-time rule is not
triggered by the combination of an incomplete notice to appear and a notice of
hearing.” Banuelos-Galviz v. Barr, 953 F.3d 1176, 1184 (10th Cir. 2020). Our
holding in Banuelos-Galviz governs here. The stop-time rule was not triggered by
service of the incomplete NTA and the NOH, and Mr. Moreno was not disqualified
from seeking cancellation of removal based on the combination of those notices.
In sum, after Pereira clarified that the stop-time rule did not apply,
Mr. Moreno asked the BIA to remand his case to the IJ to permit him to pursue
cancellation of removal. The BIA’s failure to address this aspect of his request for
3
Mr. Moreno filed his motion to remand in August 2018. By that time, if the
stop-time rule were not considered, more than ten years had elapsed since his
purported reentry in April 2008.
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remand was an abuse of discretion, and its error is not harmless. We therefore
remand the matter to the BIA to exercise its authority to address the request for
remand. See, e.g., Martinez-Perez, 947 F.3d at 1282, 1284 (remanding to BIA to
exercise its authority to address issue in the first instance).
III.
For the foregoing reasons, we grant in part and deny in part the petition for
review, vacate the denial of Mr. Moreno’s motion to remand, and remand to the BIA
for further proceedings consistent with this order and judgment.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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