Recendiz-Fernandez v. Garland ( 2023 )

Case: 22-60571 Document: 00516935912 Page: 1 Date Filed: 10/18/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-60571
Summary Calendar FILED
October 18, 2023
Lyle W. Cayce
Alfonso Recendiz-Fernandez, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A200 594 703
Before Dennis, Elrod, and Wilson, Circuit Judges.
Per Curiam:*
Alfonso Recendiz-Fernandez, a native and citizen of Mexico, petitions
for review of a decision of the Board of Immigration Appeals (“BIA”)
dismissing his appeal and affirming the Immigration Judge’s (“IJ”) holding
that he was ineligible for cancellation of removal.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60571 Document: 00516935912 Page: 2 Date Filed: 10/18/2023
No. 22-60571
This court reviews the BIA’s decision and considers the IJ’s decision
only to the extent it influenced the BIA. Orellana-Monson v. Holder, 685 F.3d
511, 517 (5th Cir. 2012). The BIA’s factual findings are reviewed for
substantial evidence, and its legal conclusions are reviewed de novo. Id. at 517-
18.
First, Recendiz-Fernandez argues that the BIA erred in affirming the
IJ’s finding that he was ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1) because he had failed to show that his removal would result in
“exceptional and extremely unusual hardship” to his children, who are U.S.
citizens. However, we have recently held that the hardship determination for
purposes of cancellation of removal “is a discretionary and authoritative
decision” which we lack jurisdiction to review under 8 U.S.C.
§ 1252(a)(2)(B)(i). Castillo-Gutierrez v. Garland, 43 F.4th 477, 481 (5th Cir.
2022). While Recendiz-Fernandez contends that this holding was incorrect,
we are bound by it under our rule of orderliness. See United States v. Lipscomb,
299 F.3d 303, 313 & n.34 (5th Cir. 2002).
Second, Recendiz-Fernandez argues that his Notice to Appear
(“NTA”) did not contain the time and date of removal proceedings, as
required by 8 U.S.C. § 1229(a)(1). Since § 1229(a)(1) is a claim-processing
rule, rather than a jurisdictional requirement, an NTA is sufficient to
commence proceedings even if it fails to include date and time information.
See, e.g., Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir. 2021); Pierre-
Paul v. Barr, 930 F.3d 684, 693 (5th Cir. 2019), abrogated on other grounds by
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). As a claim-processing rule,
violations of § 1229(a)(1), including noncompliant notices, are subject to
waiver and forfeiture. Pierre-Paul, 930 F.3d at 693. As argued by the
Government, Recendiz-Fernandez forfeited this argument by failing to
timely raise it below. See id.2
Case: 22-60571 Document: 00516935912 Page: 3 Date Filed: 10/18/2023
No. 22-60571
Lastly, Recendiz-Fernandez renews his request—that a member of
our court has already denied—to place these proceedings in abeyance
pending disposition of his motion to reopen before the BIA, in which he
argues that counsel rendered ineffective assistance. “The BIA’s denial of an
appeal and its denial of a motion to reconsider are two separate final orders,
each of which require their own petitions for review.” Guevera v. Gonzales,
450 F.3d 173, 176 (5th Cir. 2006) (quoting Jaquez-Vega v. Gonzales, 140 F.
App’x 547 (5th Cir. 2005) (unpublished)). This same principle applies to
motions to reopen. Diaz-Diaz v. Garland, 846 F. App’x 281, 282 (5th Cir.
2021) (unpublished). The propriety of the BIA’s disposition of the motion to
reopen should be litigated after the BIA rules upon that motion, a ruling
which will not affect these proceedings. We, therefore, decline to place these
proceedings in abeyance. See Chen v. Ashcroft, 83 F. App’x 672, 672 (5th Cir.
2003) (unpublished) (declining to hold a case in abeyance because the “the
motion to reopen d[id] not affect the finality of the deportation order” then
currently on review).
The petition for review is DISMISSED in part and DENIED in
part.
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