Amir Vana v. Attorney General United States ( 2020 )

BLD-119 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-1063
___________
AMIR VANA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A078-492-675)
Immigration Judge: Rosalind Malloy
____________________________________
Submitted on Respondent’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 13, 2020
Before: AMBRO, GREENAWAY, JR., and BIBAS, Circuit Judges
(Opinion filed: February 21, 2020)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Amir Vana petitions for review of an order of the Board of Immigration Appeals
(“BIA”) denying his latest motion to reopen, reconsider and terminate removal
proceedings. On the Government’s motion, we will summarily deny his petition.
Vana, a citizen of Israel, entered the United States in 1993 and overstayed his visa.
In June 2000, the Government served him with a notice to appear charging him with
removability under 8 U.S.C. § 1227(a)(1)(B). In 2006, an Immigration Judge (“IJ”)
found Vana removable for overstaying his visa, for falsely representing himself as a
United States citizen, and for committing a crime involving moral turpitude. Finding him
to be statutorily ineligible, the IJ pretermitted Vana’s application for adjustment of status.
The BIA adopted and affirmed the IJ’s decision, and we denied Vana’s petition for
review. See Vana v. Att’y Gen., 341 F. App’x 836 (3d Cir. 2009).
For reasons not clear from the Administrative Record, Vana was not removed and,
in 2017, he filed a motion with the BIA to stay his removal and reopen his removal
proceedings in order to allow him to seek asylum. The BIA denied Vana’s motions in a
decision issued on April 16, 2018. We denied Vana’s petition for review of the BIA’s
decision in part and dismissed it in part for lack of jurisdiction on May 24, 2019. See
Vana v. Att’y Gen., 774 F. App’x 772, 776-77 (3d Cir. 2019).
Before we issued our 2019 decision, Vana returned to the BIA and filed a second
motion to reopen, reconsider and terminate his removal proceedings. He argued that the
2
IJ lacked jurisdiction to decide his removability because his notice to appear had been
defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018). In Pereira, the Supreme
Court held that a notice to appear that omits the time and place of a hearing does not
qualify as a “notice to appear under section 1229(a)” for purposes of the cancellation of
removal statute’s “stop time” rule. 138 S. Ct. at 2113–14. He further argued that a
subsequent notice of hearing containing that information was insufficient to cure the
jurisdictional defect. The BIA rejected this argument and denied the motion. Vana once
again petitions for review.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review the BIA’s denial of
reopening and reconsideration only for abuse of discretion. See Pllumi v. Att’y Gen., 642
F.3d 155, 158 (3d Cir. 2011). We perceive none here.
Vana argued that his removal proceedings should be reopened and terminated
because his notice to appear was defective under Pereira. The BIA rejected that
argument on the basis of In re Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), wherein
it held that an IJ is vested with jurisdiction as long as a notice of hearing was sent that
specified the time and place of the hearing. The BIA noted that Vana received a notice of
his hearing that specified its time and date and that he appeared. The BIA rejected
Vana’s argument that Bermudez-Cota was wrongly decided. We later agreed with
Bermudez-Cota in concluding that a notice to appear that is defective under Pereira for
purposes of the “stop time” rule applicable to cancellation of removal does not deprive an
3
IJ of jurisdiction. See Nkomo v. Att’y Gen., 930 F.3d 129, 133-34 (3d Cir. 2019). Vana
acknowledges Nkomo but asserts that it should be “overruled." We distinguished our
decision in Nkomo from the “narrow question” addressed in Pereira. In any event, our
Court has denied rehearing en banc in Nkomo and this Panel is not at liberty to reconsider
it.1
For these reasons, the Government’s motion for summary action is granted, and
we will deny Vana’s petition for review.
1
We find no support for Vana’s apparent suggestion that the cancellation of removal
provision is somehow directly implicated in his case, and therefore do not address that
contention further.
4