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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14775
Non-Argument Calendar
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Agency No. A088-367-077
LURBIN LORENA GALINDO GUERRA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(November 15, 2019)
Before NEWSOM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
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Lurbin Lorena Galindo Guerra (Galindo) petitions this Court for review of a
Board of Immigration Appeals order affirming the denial of her application for
asylum and withholding of removal under the Immigration and Nationality Act and
for relief under the United Nations Convention Against Torture. Galindo first
claims that the Board’s order is void for lack of jurisdiction because the Notice to
Appear served on her at the commencement of the immigration proceedings was
defective. In the alternative, Galindo argues that even if the agency had
jurisdiction, the Board abused its discretion by denying her motion to remand so
that she could amend her application to assert a new basis for relief. We deny the
petition.
I.
Galindo, a native and citizen of Honduras, entered the United States in May
2014. The same day, the Department of Homeland Security served her with a
Notice to Appear charging her as subject to removal. The Notice to Appear
ordered Galindo to appear before an immigration judge in Miami, Florida on a date
and time “to be set” to answer the charge of removability. Several months later,
Galindo received a notice specifying that her hearing had been scheduled for
October 18, 2016, at 8:00 a.m., at the immigration court in Miami, Florida.
Galindo appeared at the October 2016 hearing and was represented by counsel.
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She conceded removability and stated that she intended to seek asylum or
withholding of removal.
At subsequent hearings, Galindo applied for asylum and withholding of
removal, stating that her domestic partner in Honduras regularly raped and beat
her, prevented her from seeing her family, and threatened to kill her, all because
she was a woman and a liberal. After hearing Galindo’s testimony and considering
evidence that she submitted in support of her application, the immigration judge
found that she was not credible, denied her application, and ordered her removed to
Honduras.
On appeal to the Board of Immigration Appeals, Galindo argued that under
Pereira v. Sessions,
138 S. Ct. 2105 (2018), the initial Notice to Appear served on
her was defective because it failed to provide the date and time of her removal
hearing. She contended that without a valid Notice to Appear, the immigration
judge lacked jurisdiction to hear her case and the order of removal was invalid.
In the alternative, Galindo requested that the Board remand her case to the
immigration judge for further proceedings in light of the Attorney General’s
decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which had been
issued after the immigration judge’s ruling in her case. She asserted that the
decision in Matter of A-B- made significant changes to asylum law as it related to
claims of domestic violence as persecution, and that the immigration judge should
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have an opportunity to reconsider her application under the new law. We review
each claim in turn.
II.
We must first consider whether we have jurisdiction to review Galindo’s
petition. See Madu v. U.S. Att’y Gen.,
470 F.3d 1362, 1365 (11th Cir. 2006). We
review our subject-matter jurisdiction de novo. Arias v. U.S. Att’y Gen.,
482 F.3d
1281, 1283 (11th Cir. 2007).
Our jurisdiction to review immigration removal proceedings is limited to
review of final orders of removal. 8 U.S.C. § 1252(b)(9); Patel v. U.S. Att’y Gen.,
334 F.3d 1259, 1261 (11th Cir. 2003). If the immigration judge lacked jurisdiction
to issue the order of removal, then we also lack jurisdiction to review it. See
Perez-Sanchez v. U.S. Att’y Gen.,
935 F.3d 1148, 1153 (11th Cir. 2019).
In Perez-Sanchez, however, we considered and rejected the argument that a
defective Notice to Appear deprives the immigration judge of jurisdiction over
removal proceedings. We explained that the time-and-place requirement in 8
U.S.C. § 1229(a) is a claim-processing rule, not a jurisdictional one. See
id. at
1150, 1156. The immigration judge had jurisdiction under 8 U.S.C. § 1229a(a)(1)
to conduct Galindo’s removal proceedings, and a defect in the initiating document
under § 1229(a) was insufficient to deprive the immigration judge of that authority.
See
id. at 1156. To the extent that Galindo argues that her removal proceedings
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should be reopened and dismissed due to the government’s failure to comply with
§ 1229(a)’s procedural requirements, she forfeited that argument by failing to
make a timely objection to the defective Notice and instead appearing and arguing
the merits of her claims before the immigration judge. Claim-processing rules
“assure relief to a party properly raising them, but do not compel the same result if
the party forfeits them.” Eberhart v. United States,
546 U.S. 12, 19 (2005).
III.
Next, we consider Galindo’s argument that the Board of Immigration
Appeals should have granted her motion to remand for further proceedings in light
of Matter of A-B-. We construe Galindo’s motion to remand as a motion to reopen
proceedings, the denial of which we review for an abuse of discretion. See Ali v.
U.S. Att’y Gen.,
643 F.3d 1324, 1329 (11th Cir. 2011). This review is limited to
determining whether the Board “exercised its discretion in an arbitrary or
capricious manner.” Zhang v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th Cir.
2009) (per curiam). “The moving party bears a heavy burden, as motions to
reopen are disfavored, especially in removal proceedings.”
Id. (internal citations
omitted).
In her petition for review, Galindo contends that Matter of A-B- effectively
eliminated asylum for domestic abuse victims. She argues that the Board of
Immigration Appeals should have granted her motion for remand to allow her to
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amend her application and pursue a different basis for asylum. But Galindo did not
proffer any new evidence to the Board or otherwise provide any new basis for
relief from removal. Indeed, she did not even challenge the immigration judge’s
finding that she was not credible. An alien seeking to reopen removal proceedings
must “present[] evidence of such a nature that the [BIA] is satisfied that if
proceedings before the [IJ] were reopened, with all attendant delays, the new
evidence offered would likely change the result in the case.” Ali v. U.S. Att’y Gen.,
443 F.3d 804, 813 (11th Cir. 2006) (per curiam) (alterations in the original)
(quoting In re Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992)). Because Galindo
made no showing that the outcome of her removal proceedings would be different
if the Board granted her motion to remand, we cannot say that the Board’s denial
of her motion was arbitrary or capricious.
PETITION DENIED.
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