Jorge Lopez Hernandez v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE REYNALDO LOPEZ No. 20-71956
HERNANDEZ, AKA Jorge
Hernandez, AKA Jorge Hernandez Agency No.
Lopez, A206-412-045
Petitioner,
OPINION
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2023 *
Pasadena, California
Filed February 16, 2023
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 LOPEZ HERNANDEZ V. GARLAND
Before: John B. Owens and Eric D. Miller, Circuit Judges,
and Dana L. Christensen,** District Judge.
Opinion by Judge Miller
SUMMARY ***
Immigration
Denying Jorge Reynaldo Lopez Hernandez’s petition for
review of the Board of Immigration Appeals’ decision in
which the Board sustained the government’s challenge to the
immigration judge’s termination of proceedings, the panel
held that the Board permissibly declined to consider Lopez’s
challenges to the IJ’s alternative denial of withholding of
removal and protection under the Convention Against
Torture because Lopez did not file a cross-appeal of that
determination.
The IJ concluded that because Lopez’s Notice to Appear
lacked hearing time and place information, as required by
Pereira v. Sessions, 138 S. Ct. 2105 (2018), the immigration
court lacked jurisdiction over his proceedings. However,
recognizing that the Board might disagree with its
jurisdictional conclusion, the IJ alternatively denied Lopez’s
application for withholding of removal and CAT protection
**
The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LOPEZ HERNANDEZ V. GARLAND 3
on the merits. The government appealed the IJ’s decision to
terminate proceedings, but Lopez did not file a cross-
appeal. The Board sustained the government’s appeal of the
IJ’s termination of proceedings, but concluded that because
Lopez did not file a cross-appeal, the IJ’s alternative denial
of relief on the merits was not properly before it.
Before this court, Lopez expressly waived review of the
Board’s termination determination, but argued that the
Board erred when it concluded that he was required to file a
separate cross-appeal to challenge the IJ’s alternative order
on the merits of his claims. The panel rejected this
argument. In concluding that the IJ’s alternative merits
determination was not properly before it, the Board relied on
8 C.F.R. § 1003.3(a), which states that “[a]n appeal from a
decision of an immigration judge shall be taken by filing a
Notice of Appeal from a Decision of an Immigration Judge
(Form EOIR-26) directly with the Board, within the time
specified in § 1003.38.” The panel observed that section
1003.3 does not expressly address cross-appeals. However,
the panel wrote that the cross-appeal rule is an “unwritten
but longstanding rule” under which “an appellate court may
not alter a judgment to benefit a nonappealing party.” The
panel explained that the Supreme Court has described this
rule as “firmly entrenched,” and it has noted that “in more
than two centuries of repeatedly endorsing the cross-appeal
requirement, not a single one of our holdings has ever
recognized an exception to the rule.”
Although an appellee must cross-appeal if it seeks to
alter the judgment, it need not do so if all it wishes to do is
present alternative grounds for affirming the
judgment. Here, the panel concluded that this limitation on
the cross-appeal rule did not help Lopez because he did seek
to alter the judgment. Had the IJ’s order terminating
4 LOPEZ HERNANDEZ V. GARLAND
proceedings been sustained, the agency would have been
free to initiate new proceedings by issuing a new order to
appear. In his challenge to the IJ’s alternative order, Lopez
sought to obtain greater relief—namely, to establish his
eligibility for withholding of removal or protection under the
CAT. Had he obtained that relief, the agency would not
have been able to bring new removal proceedings. Thus,
Lopez was seeking to alter the judgment, not merely to
affirm the IJ’s decision on different grounds.
The panel noted that it was not suggesting that the Board
was required to follow the traditional rule governing cross
appeals. Rather, the Board has authority to prescribe its own
rules of procedure, so long as the Board acts within the broad
limits imposed by the Due Process Clause. The panel wrote
that it is not up to courts to specify the procedures that the
Board should follow. Thus, the Board could, if it wished,
take a more permissive view of the scope of appeals than that
traditionally taken by federal courts. But it has not done
so. To the contrary, it has consistently applied the cross-
appeal rule in its decisions. Moreover, other courts of
appeals have also recognized that the cross-appeal rule
applies to proceedings before the Board, and to the panel’s
knowledge, no court has reached a contrary conclusion.
Finally, the panel concluded that it lacked jurisdiction to
consider Lopez’s arguments for a waiver of the cross-appeal
rule because he failed to exhaust that claim before the Board.
LOPEZ HERNANDEZ V. GARLAND 5
COUNSEL
Joan I. Del Valle, Law Offices of Joan Del Valle, Burbank,
California, for Petitioner.
Neelam Ihsanullah, Trial Attorney; Jeffery R. Leist, Senior
Litigation Counsel; Anthony C. Payne, Assistant Director;
Brian M. Boynton, Principal Deputy Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
MILLER, Circuit Judge:
Jorge Reynaldo Lopez Hernandez, a native and citizen
of Mexico, petitions for review of a decision of the Board of
Immigration Appeals. Although the Board entertained the
government’s challenge to a portion of the immigration
judge’s decision in Lopez’s case, it declined to consider
Lopez’s challenges to that decision because Lopez had not
filed a cross-appeal. The Board’s action was consistent with
the traditional rule governing cross-appeals, which the Board
has applied in its proceedings. We deny the petition for
review.
In 2001, Lopez entered the United States without
inspection, and in 2015, the Department of Homeland
Security began removal proceedings against him. His notice
to appear did not specify the time or place of his hearing, but
Lopez later received that information and appeared at a
hearing before an immigration judge.
6 LOPEZ HERNANDEZ V. GARLAND
At his hearing, Lopez sought withholding of removal and
protection under the Convention Against Torture (CAT).
(He initially sought asylum but abandoned that claim after
the immigration judge determined that it was untimely.)
Lopez moved to terminate the proceedings, arguing that the
immigration court lacked jurisdiction because the notice to
appear did not identify the time or place of the hearing.
In an oral decision, the immigration judge granted
Lopez’s motion to terminate the proceedings. Citing Pereira
v. Sessions, 138 S. Ct. 2105 (2018), the immigration judge
noted that 8 U.S.C. § 1229(a) specifies the required contents
of a notice to appear, including information about the time
and place of the hearing. Because Lopez’s notice did not
include that information, the immigration judge concluded
“that a valid Notice to Appear has not been served,” so “the
Court does not yet have . . . jurisdiction over the . . . removal
proceedings.” The immigration judge terminated the
proceedings without prejudice.
Recognizing that “the Board of Immigration Appeals
[might] disagree with” the jurisdictional conclusion, the
immigration judge went on, “[i]n the alternative,” to deny
withholding of removal and CAT relief on the merits. Lopez
premised his withholding claim on the theory that he faced
persecution because of his membership in two social groups:
“members of the Isaias-Hernandez family that [are] harassed
and persecuted” and “landowners that are harassed and
persecuted by cartels that want to take their land for their
own use to promote marijuana cultivation and other criminal
enterprises.” The immigration judge found that Lopez had
not established that he had been harmed or threatened
because of his membership in the Isaias-Hernandez family.
Further, because Lopez conceded that he was not a
landowner, the immigration judge determined that he could
LOPEZ HERNANDEZ V. GARLAND 7
not establish that he was a member of his second proposed
social group. The immigration judge denied the CAT claim
because Lopez could not establish that it was more likely
than not he would be tortured if returned to Mexico.
Specifically, Lopez had not demonstrated that he would be
unable to relocate within Mexico and live safely, nor had he
shown that any torture would be inflicted by or with the
acquiescence of the Mexican government. The immigration
judge entered an alternative order that Lopez be removed to
Mexico.
DHS appealed the immigration judge’s decision to
terminate proceedings. Lopez did not file a cross-appeal, but
in his brief, he argued that the Board should affirm the
immigration judge’s decision to terminate proceedings or, in
the alternative, that the Board should find him eligible for
withholding of removal and CAT protection.
The Board sustained DHS’s appeal. The Board held that
“a Notice to Appear that does not specify the time and place
of an initial removal hearing vests an Immigration Judge
with jurisdiction over the proceedings . . . so long as a notice
of hearing specifying this information is later sent to the
alien.” The Board therefore vacated the portion of the
immigration judge’s decision terminating proceedings.
Turning to the immigration judge’s alternative decision,
the Board noted that Lopez “did not file a Notice of Appeal
(or cross-appeal)” challenging that decision. In the Board’s
view, DHS’s appeal of the jurisdictional decision “does not
bring the Immigration Judge’s alternate decision within the
scope of this appeal.” The Board concluded that “these
issues are not properly before us and we decline to address
this matter.” It therefore ordered Lopez “removed to Mexico
according to the Immigration Judge’s alternate order.”
8 LOPEZ HERNANDEZ V. GARLAND
Lopez petitions for review. In this court, he has expressly
waived any argument that the immigration judge lacked
jurisdiction. But even if Lopez had preserved a challenge to
the immigration judge’s jurisdiction, that challenge would
lack merit: In United States v. Bastide-Hernandez, we held
that a defect in a notice to appear does not affect the subject-
matter jurisdiction of the immigration court. 39 F.4th 1187,
1193 (9th Cir. 2022) (en banc).
Instead, Lopez argues that the Board erred when it
concluded that he was required to file a separate cross-appeal
to challenge the immigration judge’s alternative order on the
merits of his claims. In support of its conclusion, the Board
relied on 8 C.F.R. § 1003.3(a), which states that “[a]n appeal
from a decision of an immigration judge shall be taken by
filing a Notice of Appeal from a Decision of an Immigration
Judge (Form EOIR-26) directly with the Board, within the
time specified in § 1003.38.”
Lopez correctly observes that section 1003.3 does not
expressly address cross-appeals. The cross-appeal rule is an
“unwritten but longstanding rule” under which “an appellate
court may not alter a judgment to benefit a nonappealing
party.” Greenlaw v. United States, 554 U.S. 237, 244 (2008).
The Supreme Court has described that rule as “firmly
entrenched,” noting that “in more than two centuries of
repeatedly endorsing the cross-appeal requirement, not a
single one of our holdings has ever recognized an exception
to the rule.” Id. at 245 (quoting El Paso Nat. Gas Co. v.
Neztsosie, 526 U.S. 473, 480 (1999)); accord Morley Constr.
Co. v. Maryland Cas. Co., 300 U.S. 185, 191 (1937)
(describing the rule as “inveterate and certain”).
To be sure, although an appellee must cross-appeal if it
seeks to alter the judgment, it need not do so “if all it wishes
LOPEZ HERNANDEZ V. GARLAND 9
to do is present alternative grounds for affirming the
judgment.” Ellis v. Salt River Project Agric. Improvement &
Power Dist., 24 F.4th 1262, 1268 (9th Cir. 2022). That is true
even if those alternative grounds, taken to their logical
conclusion, might suggest that the judgment should be
altered: “An appellee who does not take a cross-appeal may
‘urge in support of a decree any matter appearing in the
record, although his argument may involve an attack upon
the reasoning of the lower court.’” Jennings v. Stephens, 574
U.S. 271, 276 (2015) (quoting United States v. American Ry.
Express Co., 265 U.S. 425, 435 (1924)); see also In re Oil
Spill by the Amoco Cadiz, 954 F.2d 1279, 1333 (7th Cir.
1992).
But that limitation on the cross-appeal rule does not help
Lopez because he did seek to alter the judgment entered by
the immigration judge. The immigration judge dismissed the
proceedings without prejudice; had that order been
sustained, the agency would have been free to initiate new
proceedings by issuing a new order to appear. In his
challenge to the immigration judge’s alternative order,
Lopez sought to obtain greater relief—namely, to establish
his eligibility for withholding of removal or protection under
the CAT. Had he obtained that relief, the agency would not
have been able to bring new removal proceedings. Thus,
Lopez was seeking to alter the judgment, not merely to
affirm the immigration judge’s decision on different
grounds. Under the traditional rule, he could not do so
without cross-appealing.
We do not suggest that the Board was required to follow
the traditional rule governing cross appeals. The Board has
authority to prescribe its own rules of procedure. 8 C.F.R.
§ 1003.1(d)(4); see Honcharov v. Barr, 924 F.3d 1293, 1296
(9th Cir. 2019) (per curiam). At least so long as the Board
10 LOPEZ HERNANDEZ V. GARLAND
acts within the broad limits imposed by the Due Process
Clause, it is not up to courts to specify the procedures that
the Board should follow. See Vermont Yankee Nuclear
Power Corp. v. Natural Res. Def. Corp., 435 U.S. 519, 543
(1978) (“Absent constitutional constraints or extremely
compelling circumstances the ‘administrative agencies
should be free to fashion their own rules of procedure and to
pursue methods of inquiry capable of permitting them to
discharge their multitudinous duties.’” (internal quotation
marks omitted) (quoting FCC v. Schreiber, 381 U.S. 279,
290 (1965))). Thus, the Board could, if it wished, take a more
permissive view of the scope of appeals than that
traditionally taken by federal courts. But it has not done so.
To the contrary, it has consistently applied the cross-appeal
rule in its decisions. See, e.g., In re R-A-M-, 25 I. & N. Dec.
657, 658 n.2 (B.I.A. 2012); In re G-A-, 23 I. & N. Dec. 366,
367 n.1 (B.I.A. 2002); In re Bosuego, 17 I. & N. Dec. 125,
129 n.1 (B.I.A. 1979).
Other courts of appeals have also recognized that the
cross-appeal rule applies to proceedings before the Board.
See, e.g., Lopez v. United States Att’y Gen., 914 F.3d 1292,
1299–1300 (11th Cir. 2019); Shojaeddini v. Sessions, 880
F.3d 325, 328–29 (7th Cir. 2018); Ri Kai Lin v. Bureau of
Citizenship & Immigr. Servs., 514 F.3d 251, 255 (2d Cir.
2008); Berhe v. Gonzales, 464 F.3d 74, 88 (1st Cir. 2006).
So far as we are aware, no court has reached a contrary
conclusion.
Finally, Lopez argues that even if the Board was correct
to apply the cross-appeal rule, it should have considered
waiving the rule in his case. In his view, the Board’s failure
to consider granting a waiver deprived him of his due
process right to a full and fair hearing. Because Lopez never
asked the Board for a waiver, he did not exhaust this claim,
LOPEZ HERNANDEZ V. GARLAND 11
and we lack jurisdiction to consider it. Vasquez-Rodriguez v.
Garland, 7 F.4th 888, 894 (9th Cir. 2021). To the extent that
Lopez’s theory is that the Board had a duty to consider a
waiver sua sponte—a claim that, by its nature, Lopez could
not have raised before the Board—the theory lacks merit. No
authority suggests that the Board has such a duty, and Lopez
has not shown that the proceedings were “so fundamentally
unfair that [he] was prevented from reasonably presenting
his case.” Rizo v. Lynch, 810 F.3d 688, 693 (9th Cir. 2016).
PETITION DENIED.