Case: 19-13666 Date Filed: 04/13/2020 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13666
Non-Argument Calendar
________________________
Agency No. A088-295-652
AMPARO M. CASTANEDA GUANUME,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 13, 2020)
Before JORDAN, LAGOA and BLACK, Circuit Judges.
PER CURIAM:
Amparo Castaneda Guanume petitions for review of the Board of Immigration
Appeals’ (“BIA”) denial of her motion to reconsider and terminate removal
Case: 19-13666 Date Filed: 04/13/2020 Page: 2 of 5
proceedings in light of Pereira v. Sessions,
138 S. Ct. 2105 (2018). The Government
has moved for summary denial of Guanume’s petition and to stay the briefing
schedule.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
We review the BIA’s denial of a motion for reconsideration for abuse of
discretion. Assa’ad v. U.S. Atty. Gen.,
332 F.3d 1321, 1341 (11th Cir. 2003). We
are bound by a prior panel opinion, even if it was wrongly decided, until the
opinion’s holding is overruled by the Supreme Court or our Court sitting en banc.
See United States v. Golden,
854 F.3d 1256, 1257 (11th Cir. 2017).
In Pereira, the Supreme Court considered a question “at the intersection of”
8 U.S.C. § 1229(a), regarding the contents of a notice to appear, and the “stop-time”
rule for cancellation of removal in 8 U.S.C. § 1229b(d)(1). Pereira,
138 S. Ct. at
2109-10. The Supreme Court concluded that a putative notice to appear that does
not specify either the time or place of the removal proceedings does not trigger the
stop-time rule and thus does not end the alien’s continuous physical presence in the
2
Case: 19-13666 Date Filed: 04/13/2020 Page: 3 of 5
United States for purposes of cancellation of removal eligibility. Pereira,
138 S. Ct.
at 2110. The Supreme Court reasoned that a “putative notice to appear that fails to
designate the specific time or place of the noncitizen’s removal proceedings is not a
‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.”
Id. at 2113-14 (quoting 8 U.S.C. § 1229b(d)(1)). Although the Supreme Court in
Pereira stated that it was deciding only a “narrow question” about an eligibility
requirement for cancellation of removal, it also acknowledged that the notice to
appear flaw present in the case—the failure to specify the time or place of the
removal hearing—was present in nearly every notice to appear that had been issued
in recent years. Id. at 2110-11. Consequently, Pereira gave rise to a raft of claims
by aliens asserting that their removal proceedings, whether ongoing or already
complete, were void because they were purportedly commenced by a “putative
notice to appear” that was “not a notice to appear under section 1229(a).” Id. at
2113-14 (quotation marks omitted).
We recently addressed a petitioner’s Pereira claim that the IJ “never had
jurisdiction over his removal case” because the notice to appear “did not include
either the time or date of his removal hearing.” Perez-Sanchez v. U.S. Att’y Gen.,
935 F.3d 1148, 1150 (11th Cir. 2019). As an initial matter, we concluded that we
had jurisdiction to review Perez-Sanchez’s Pereira claim, even though he did not
raise it first before the BIA. Id. at 1153. We explained that we “always have
3
Case: 19-13666 Date Filed: 04/13/2020 Page: 4 of 5
jurisdiction to determine our own jurisdiction,” and because our jurisdiction to
review removal proceedings extended only to final orders of removal, we necessarily
had to determine whether there was a valid final order of removal granting it
jurisdiction. Id. Thus, Perez-Sanchez’s failure to exhaust the claim before the
agency did not deprive our Court of jurisdiction. Id.
Turning next to the merits, we first determined that the notice to appear was
“unquestionably deficient” under § 1229(a) for failing to specify the time and date
of the removal hearing. Id. We concluded in Perez-Sanchez that the defective notice
to appear did not deprive the agency of jurisdiction over the removal proceedings
because the statutory “time-and-place requirement” did not “create a jurisdictional
rule,” but was instead a “claim-processing rule.” Id. at 1154-55. Similarly, we also
concluded that
8 C.F.R. § 1003.14 too, “despite its language, sets forth not a
jurisdictional rule but a claim-processing one,” reasoning that “an agency cannot
fashion a procedural rule to limit jurisdiction bestowed upon it by Congress.” Id. at
1155. Having determined that the agency properly exercised jurisdiction over
Perez-Sanchez’s removal proceedings, we denied his petition for review as to his
Pereira claim. Id. at 1157. Finally, to the extent Perez-Sanchez claimed he was
entitled to a remand because the notice to appear otherwise violated the agency’s
claim-processing rules, we dismissed the petition for lack of jurisdiction because the
claim was unexhausted. Id.
4
Case: 19-13666 Date Filed: 04/13/2020 Page: 5 of 5
Here, there is no substantial question that Guanume’s petition is foreclosed by
precedent. See Groendyke Transp., Inc., 406 F.3d at 1162. Guanume’s arguments
that the IJ did not have jurisdiction over her removal proceeding because her NTA
was defective are foreclosed by our precedent in Perez-Sanchez. That precedent is
binding even if it was wrongly decided, as Guanume argues. See Golden, 854 F.3d
at 1257.
Therefore, because there is no substantial question that Guanume’s petition is
foreclosed by precedent, we GRANT the government’s motion for summary denial
of Guanume’s petition. See Groendyke Transp., Inc.,
406 F.2d at 1162.
Accordingly, we DENY the accompanying motion to stay the briefing schedule as
moot.
5
