Levy Samayoa-Montufar v. William Barr, U. S. Atty ( 2020 )

Case: 19-60264 Document: 00515375591 Page: 1 Date Filed: 04/08/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60264 April 8, 2020
Summary Calendar
Lyle W. Cayce
Clerk
LEVY SAUL SAMAYOA-MONTUFAR,
Petitioner
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A077 742 588
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Levy Saul Samayoa-Montufar, a native and citizen of Guatemala,
petitions for review of an order of the Board of Immigration Appeals (BIA)
denying his motion to reopen. Relying on Pereira v. Sessions, 138 S. Ct. 2105(2018), Samayoa-Montufar argues that the immigration court lacked
jurisdiction because his Notice to Appear (NTA) was defective in that it omitted
the time and date for his removal hearing.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-60264 Document: 00515375591 Page: 2 Date Filed: 04/08/2020
No. 19-60264
We rejected the same jurisdiction argument in Pierre-Paul v. Barr, 930
F.3d 684 (5th Cir. 2019), petition for cert. filed (U.S. Dec. 12, 2019) (No. 19-
779). The NTA here specified the nature of the proceedings, the legal authority
for the proceedings, and a warning regarding in absentia removal and, thus,
was not defective. See id. at 689-90. Moreover, even if an NTA lacking a time
and date for the removal hearing were defective pursuant to Pereira, the defect
may be cured by a subsequent notice that includes the time and date of the
hearing, which was provided here. See id. at 690-91. The BIA did not abuse
its discretion in denying Samayoa-Montufar’s motion. See id. at 689; Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).
Finally, Samayoa-Montufar attempts to challenge the December 23,
2015 denial of his motion to reopen by the BIA by disputing its characterization
of an attorney error. We do not have jurisdiction to consider that argument
because he did not file a petition for review within the 30-day deadline for
seeking review. See 8 U.S.C. § 1252(b)(1); Bright v. Holder, 649 F.3d 397, 399
n.1 (5th Cir. 2011).
The petition for review is DENIED IN PART and DISMISSED IN PART
for lack of jurisdiction.
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