Cueto-Jimenez v. Garland

Case: 19-60410 Document: 00516299606 Page: 1 Date Filed: 04/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 28, 2022
No. 19-60410 Lyle W. Cayce
Clerk
Lorenzo Cueto-Jimenez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088-753-526
Before Stewart, Clement, and Elrod, Circuit Judges.
Per Curiam:*
Petitioner Lorenzo Cueto-Jimenez seeks review of a decision of the
Board of Immigration Appeals (“Board” or “BIA”) affirming the denial of
his third motion to reopen removal proceedings. For the reasons that follow,
we DENY in part and GRANT in part his petition, and REMAND for
further proceedings consistent with this opinion.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-60410 Document: 00516299606 Page: 2 Date Filed: 04/28/2022
No. 19-60410
I
Lorenzo Cueto-Jimenez, a native and citizen of Mexico, entered the
United States on a nonimmigrant H-2B visa in June 2007 and remained after
the visa expired. On November 10, 2007, the U.S. Department of Homeland
Security (“DHS”) served him with a putative Notice to Appear (“NTA”)
charging him as removable from the United States. See 8 U.S.C.
§ 1227(a)(1)(B). But the NTA failed to name the date and time of Cueto-
Jimenez’s hearing before the Immigration Court. The notice stated that the
hearing would be on “a date to be set at a time to be set.” Cueto-Jimenez
was subsequently served with a Notice of Hearing (“NOH”) by his custodial
officer, which stated the date and time that his Master Calendar Hearing
would be held before the Immigration Court. He received additional NOHs
adjusting the date of the hearing to February 4, 2008.
At the February 2008 hearing, Cueto-Jimenez conceded the charges
of removability against him. And he requested that the Immigration Judge
(“IJ”) administratively close his removal proceedings pending adjudication
of an immediate relative visa petition filed by Cueto-Jimenez’s wife, a United
States citizen. The IJ agreed. But the proceedings were subsequently
recalendared when the visa petition was withdrawn. Through service of an
NOH on his counsel of record, Cueto-Jimenez received notice that the
recalendared hearing would be held on June 6, 2012.
Cueto-Jimenez failed to appear before the Immigration Court at the
June 2012 hearing and the IJ ordered him removed in absentia. See
§ 1229a(b)(5)(A). Cueto-Jimenez’s prior counsel timely moved to reopen
removal proceedings, which the IJ denied, finding no exceptional
circumstances justified Cueto-Jimenez’s failure to appear. See
§ 1229a(b)(5)(C)(i).
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In 2016, present counsel for Cueto-Jimenez filed a second motion to
reopen removal proceedings on the basis of ineffective assistance of counsel.
The IJ denied the motion. The Board affirmed and dismissed the appeal.
Cueto-Jimenez petitioned for review before us, which we denied. See Cueto-
Jimenez v. Sessions, 735 F. App’x 159, 160 (5th Cir. 2018).
In 2018, Cueto-Jimenez moved to reopen his removal proceedings for
the third time, relying on the Supreme Court’s recent decision in Pereira v.
Sessions, 138 S. Ct. 2105 (2018). The Board denied the petition. He
petitioned for review before us, which we granted.
II
We review the Board’s denial of a motion to reopen for an abuse of
discretion. See Lugo-Resendez v. Lynch, 831 F.3d 337, 340 (5th Cir. 2016). But
we review the legal conclusions underlying the Board’s decision de novo and
its factual findings for substantial evidence in the record. See Garcia v.
Garland, 28 F.4th 644, 646 (5th Cir. 2022). Cueto-Jimenez raises six
challenges to the Board’s order, which we review in turn.
First, Cueto-Jimenez argues that his receipt of a defective initial NTA
deprived the IJ of jurisdiction over his removal proceedings. But that
argument is foreclosed by our holding in Pierre-Paul v. Barr, 930 F.3d 684(5th Cir. 2019), abrogated in part on other grounds by Niz-Chavez v. Garland,
141 S. Ct. 1474 (2021). There, we held that a defective NTA does not deprive
an immigration court of jurisdiction over removal proceedings. Id. at 691–93.
That portion of Pierre-Paul’s holding remains good law. See Maniar v.
Garland, 998 F.3d 235, 242 (5th Cir. 2021).
Second, Cueto-Jimenez argues that the Board abused its discretion by
“applying an incorrect due diligence standard to his equitable tolling claim.”
We do not address this argument because the BIA declined to rule on
equitable tolling and instead ruled on the merits. See Enriquez-Gutierrez v.
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Holder, 612 F.3d 400, 407 (5th Cir. 2010) (“[A court] may usually only affirm
the BIA on the basis of its stated rationale . . . .”).
Third, Cueto-Jimenez asks us to review whether the BIA abused its
discretion in failing to sua sponte reopen the case. But we lack jurisdiction to
review the BIA’s discretionary decision not to exercise its authority to sua
sponte reopen. See Mejia v. Whitaker, 913 F.3d 482, 489–90 (5th Cir. 2019).
Fourth, Cueto-Jimenez contends that his due process rights were
violated by his receipt of a defective NTA. His substantive due process claim
fails to implicate a protected liberty interest. See Ramos-Portillo v. Barr, 919
F.3d 955, 963 (5th Cir. 2019). And, because Cueto-Jimenez attended the
February 2008 removal hearing for which he received defective notice, he
fails to demonstrate prejudice supporting his procedural due process claim.
Fifth, Cueto-Jimenez argues that the BIA ordered him removed in
absentia after he received a defective NTA, in contravention of our holding
in Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021). In Rodriguez, we held
that an NTA must contain all of the information described in § 1229(a)(1) to
support an in absentia removal order, and that when this NTA is defective it
may not be cured by a subsequent NOH. Id. at 355–56. But Rodriguez is
distinct from the facts of this case. Unlike the petitioner in Rodriguez, Cueto-
Jimenez did personally attend his initial removal hearing in February 2008,
for which he had received a defective NTA. The case was thereafter
recalendared and Cueto-Jimenez received a new NOH specifying the date
and time of the recalendared removal hearing for June 2012. The relevant
notice for assessing the propriety of an in absentia order of removal is the
notice pertaining to the proceeding at issue. Here, that notice was not the
initial NTA but the NOH received after the case was recalendared. Unlike
Rodriguez, the NOH at issue here did not attempt to cure the initial defective
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NTA, and Cueto-Jimenez does not argue that the NOH was otherwise
defective. Rodriguez does not apply to these facts.
Finally, Cueto-Jimenez argues—and the Government agrees—that
the BIA abused its discretion when it found that the defective NTA triggered
the “stop time” rule. We agree. Because Cueto-Jimenez did not receive the
“single compliant document” required by law, he may be eligible for
cancellation of removal. See Niz-Chavez, 141 S. Ct. at 1485. We hold that the
BIA abused its discretion by committing an error of law. See Koon v. United
States, 518 U.S. 81, 100 (1996); see also Nawiini v. Garland, 853 F. App’x 945,
946 (5th Cir. 2021).
* * *
We GRANT IN PART the petition for review and REMAND the
case to the BIA for further consideration of the stop-time issue in light of Niz-
Chavez v. Garland, 141 S. Ct. 1474 (2021). We DENY all other issues in the
petition for review.
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