Lopez-Munoz v. Barr ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 4, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
SANDRA LOPEZ-MUNOZ,
Petitioner,
v. No. 19-9510
WILLIAM P. BARR, Attorney
General
Respondent.
_________________________________
Petition for Review of a Decision of the Board of Immigration Appeals
_________________________________
Submitted on the briefs *
Jennifer M. Smith, Glenwood Springs, Colorado, on behalf of the
Petitioner.
Joseph H. Hunt, Assistant Attorney General, Leslie McKay, Senior
Litigation Counsel, and Manuel A. Palau, Trial Attorney, U.S Department
of Justice, Washington, D.C., on behalf of the Respondent.
_________________________________
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
_________________________________
*
Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); Tenth Cir. R. 34.1(G).
BACHARACH, Circuit Judge.
_________________________________
This petition for review involves a collateral challenge to a removal
(deportation) order. The removal proceedings began with the service of a
notice to appear. Because the notice to appear failed to include a date and
time for her impending immigration hearing, 1 the petitioner (Ms. Sandra
Lopez-Munoz) argues that the immigration judge lacked jurisdiction over
the removal proceedings.
If Ms. Lopez is right, she may be entitled to relief based on the
immigration judge’s lack of jurisdiction to order removal. In our view,
however, the alleged defect would not preclude jurisdiction. We thus deny
the petition for review.
1. Ms. Lopez seeks review of the denial of a motion to reconsider.
At the eventual removal proceedings, Ms. Lopez appeared and
requested cancellation of removal, but the immigration judge declined the
request. Ms. Lopez unsuccessfully appealed to the Board of Immigration
Appeals, moved for the Board to reopen her case, petitioned for review in
our court, moved a second time for the Board to reopen her case, and
moved for reconsideration of the denial of her second motion to reopen.
1
Though the notice to appear did not state the date or time of the
hearing, Ms. Lopez later received another notice with that information.
2
Ms. Lopez’s present petition for review involves the denial of her
motion to reconsider. Ordinarily, a noncitizen 2 cannot file a second motion
to reopen, much less a motion to reconsider the denial of a second motion
to reopen. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.23(b)(1). In
addition, motions to reopen are ordinarily due 90 days from the date of the
removal order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). 3
Despite these bars, Ms. Lopez sought reconsideration of an otherwise
prohibited second motion to reopen nearly six years after issuance of the
removal order. To overcome these procedural bars, Ms. Lopez must show a
jurisdictional defect in the removal proceedings. Kontrick v. Ryan, 540
U.S. 443, 455 (2004).
Ms. Lopez alleges a jurisdictional defect in her notice to appear
based on noncompliance with regulations and the underlying statute. The
regulations state that (1) the filing of a “charging document” creates
jurisdiction, (2) a charging document consists of a notice to appear, and
(3) a notice to appear must include the date and time where practicable.
8 C.F.R. §§ 1003.13, 1003.14(a), 1003.18. The statute provides that a
notice to appear must specif y the time and place of the removal hearing. 8
2
We use the term “noncitizen” to refer to a person who is not a citizen
or national of the United States. See Pereira v. Sessions, 138 S. Ct. 2105,
2110 n.1 (2018).
3 Exceptions exist, but none apply to the issue that Ms. Lopez has
raised. See 8 U.S.C. § 1229a(c)(7)(C)(iv); 8 C.F.R. § 1003.23(b)(1), (4).
3
U.S.C. § 1229(a)(1)(G)(i). Invoking the regulations and statute, Ms. Lopez
contends that her notice to appear was defective because it omitted the
time or place of the removal hearing. For the sake of argument, we assume
that Ms. Lopez is right about the existence of a defect in the notice to
appear.
2. The alleged defect in the notice to appear was not jurisdictional.
In our view, this defect would not preclude jurisdiction.
A. The alleged regulatory defect is not jurisdictional.
Ms. Lopez’s jurisdictional argument relies largely on a federal
regulation adopted by the Attorney General. This regulation provides that
an immigration judge obtains jurisdiction when a charging document is
filed. 8 C.F.R. § 1003.14(a).
Though the regulation uses the word “jurisdiction,” the term
“jurisdiction” is often loosely used for requirements unrelated to an agency
or court’s power to act. Kontrick v. Ryan, 540 U.S. 443, 454–55 (2004).
We thus must look beyond the Attorney General’s label to determine
whether the regulation actually restricts immigration judges’ jurisdiction.
Looking past that label, we conclude that the regulatory mention of
“jurisdiction” is colloquial. The Attorney General didn’t—and couldn’t—
restrict immigration judges’ jurisdiction.
Immigration judges obtain their powers from Congress, not agency
regulations. See United States v. Cortez, 930 F.3d 350, 360 (4th Cir. 2019)
4
(“[T]he immigration courts’ adjudicatory authority over removal
proceedings comes not from the agency regulation codified at 8 C.F.R.
§ 1003.14(a), but from Congress.”); Perez-Sanchez v. Att’y Gen., 935 F.3d
1148, 1150 (11th Cir. 2019) (“Congress alone has the power to define the
scope of an agency’s authority.”). Congress empowered immigration judges
by authorizing them to decide the issue of “inadmissibility or
deportability.” 8 U.S.C. § 1229a(a)(1); see United States v. Cortez, 930
F.3d 350, 360 (4th Cir. 2019) (stating that 8 U.S.C. § 1229(a) grants
jurisdiction to immigration judges by authorizing them to conduct removal
proceedings). By delegating this power to immigration judges, Congress
granted them jurisdiction over removal proceedings. Perez-Sanchez, 935
F.3d at 1154-55; Cortez, 930 F.3d at 360.
Given this congressional delegation of authority, the Attorney
General could not unilaterally restrict immigration judges’ jurisdiction. See
Perez-Sanchez, 935 F.3d at 1156 (“[A]n agency cannot fashion a
procedural rule to limit jurisdiction bestowed upon it by Congress.”). 4 So
4 We assume, for the sake of argument, that the regulation purports to
restrict the immigration judge’s jurisdiction when the notice to appear
omits the date and time of the hearing. Despite this assumption, we note
that the Board of Immigration Appeals has reached a different conclusion,
holding that a notice to appear “that does not specif y the time and place of
an alien’s initial removal hearing vests an Immigration Judge with
jurisdiction over the removal proceedings and meets the requirements of [8
U.S.C. § 1229(a)], so long as a notice of hearing specif ying this
information is later sent to the alien.” In re Bermudez-Cota, 27 I. & N.
5
even if immigration judges had exceeded their regulatory power by
ordering removal without a valid notice to appear, they would have still
had jurisdiction. 5 See City of Arlington v. FCC, 569 U.S. 290, 297–98
Dec. 441, 447 (B.I.A. 2018). This decision reflects a binding interpretation
of the regulation by the agency charged with enforcement. Executive
Office for Immigration Review; Rules of Procedures, 57 Fed. Reg. 11,568(Apr. 6, 1992). Some courts have thus deferred to the Board’s
interpretation of this regulation in holding that a defect in the notice to
appear does not create a jurisdictional defect. E.g., Pontes v. Barr, 938
F.3d 1, 5 (1st Cir. 2019); Hernandez–Perez v. Whitaker, 911 F.3d 305,
312–15 (6th Cir. 2018). We need not decide whether to apply deference to
the Board’s interpretation.
5 We leave open the possibility that Congress might empower an
agency to restrict its own jurisdiction. But Congress didn’t delegate power
to the Attorney General to restrict immigration judges’ jurisdiction. See
Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm.
of Adjustment, 558 U.S. 67, 83–84 (2009) (“Congress gave the Board no
authority to adopt rules of jurisdictional dimension.”). Congress merely
provided the Attorney General with the power to establish regulations
necessary to carry out his or her powers. 8 U.S.C. § 1103(a)(3), (g)(2). The
Attorney General thus lacked power to limit the jurisdiction of immigration
judges:
The fact that the Executive Office for Immigration Review
of the Department of Justice purported to describe when
“jurisdiction” vests in a case before an immigration court is
neither here nor there. See 8 C.F.R. § 1003.14(a). While an
agency may adopt rules and processes to maintain order, it
cannot define the scope of its power to hear cases. What the
Executive Office was doing was establishing exactly what it
takes properly to commence a case before it. That decision is not
one of jurisdictional significance in the same sense that complete
diversity or the existence of a federal question is for a district
court.
Ortiz–Santiago v. Barr, 924 F.3d 956, 963 (7th Cir. 2019); see also United
States v. Cortez, 930 F.3d 350, 359 (4th Cir. 2019) (“To deem [8 C.F.R.
6
(2013) (explaining that an agency’s power to act “is authoritatively
prescribed by Congress”). 6 Because the Attorney General could not
restrict an immigration judge’s jurisdiction through a regulation, 8 C.F.R.
§ 1003.14 does not establish immigration judges’ jurisdiction. 7
§ 1003.14(a)] ‘jurisdictional’ would be ‘to say that the Attorney General is
‘in effect, . . . telling himself what he may or may not do.’”) (emphasis in
original) (quoting United States v. Arroyo, 356 F. Supp. 3d 619, 624 (W.D.
Tex. 2018)).
6 The Supreme Court made this point by comparing agencies to
courts:
Congress has the power (within limits) to tell the courts what
classes of cases they may decide, but not to prescribe or
superintend how they decide those cases. A court’s power to
decide a case is independent of whether its decision is correct.
So even an erroneous judgment is entitled to res judicata effect.
Put differently, a jurisdictionally proper but substantively
incorrect judicial decision is not ultra vires.
That is not so for agencies charged with administering
congressional statutes. Both their power to act and how they are
to act is authoritatively prescribed by Congress, so that when
they act improperly, no less than when they act beyond their
jurisdiction, what they do is ultra vires. Because the question---
whether framed as an incorrect application of agency authorit y
or an assertion of authority not conferred---is always whether the
agency has gone beyond what Congress has permitted it to do,
there is no principled basis for carving out some arbitrary subset
of such claims as “jurisdictional.”
City of Arlington v. FCC, 569 U.S. 290, 297–98 (2013) (citations omitted).
7
The Eighth and Ninth Circuits have accepted the regulation’s
statement that it addresses jurisdiction. Ali v. Barr, 924 F.3d 983, 986 (8th
Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).
But in these cases, there was no suggestion that a party had questioned the
7
B. The alleged statutory defect is not jurisdictional.
In challenging the immigration judge’s jurisdiction, Ms. Lopez also
relies on the statutory provision requiring notices to appear to include the
date and time of the hearing. This reliance is misplaced.
Not every statutory requirement is jurisdictional. To the contrary, a
statutory requirement is jurisdictional only when Congress says it is. See
Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (“[W]hen Congress
does not rank a statutory limitation on coverage as jurisdictional, courts
should treat the restriction as nonjurisdictional in character.”); see also
Gad v. Kansas State Univ., 787 F.3d 1032, 1039 (10th Cir. 2015) (“[W]e
should not treat requirements as jurisdictional without express
congressional direction.”). Although a statute “need not go so far as to use
the magic word ‘jurisdiction,’” the jurisdictional language must be clear.
United States v. McGaughy, 670 F.3d 1149, 1156 (10th Cir. 2012). Such
clarity typically exists only when the statute addresses “the courts’
statutory or constitutional power to adjudicate the case.” Barnes v. United
States, 776 F.3d 1134, 1146 (10th Cir. 2015) (emphasis in original)
(quoting Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1157–58
(10th Cir. 2013) (Gorsuch, J., concurring)).
Attorney General’s power to regulate jurisdiction. See Ali, 924 F.3d at 986;
Karingithi, 913 F.3d at 1160.
8
Section 1229(a) does not refer to “jurisdiction” or “the courts’
statutory or constitutional power to adjudicate the case.” Id. (emphasis in
original). Thus, § 1229(a) is non-jurisdictional. See Hernandez–Perez v.
Whitaker, 911 F.3d 305, 314–15 (6th Cir. 2018) (holding that § 1229(a) is
not jurisdictional); Ortiz–Santiago v. Barr, 924 F.3d 956, 963 (7th Cir.
2019) (same); Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019)
(same).
Ms. Lopez nonetheless argues that the statutory rules governing the
“initiation of cases are jurisdictional” because these rules are akin to
statutes of limitations. 8 Pet’r’s Opening Br. at 24–25. 9 But statutes of
limitations are not ordinarily jurisdictional. Musacchio v. United States,
136 S. Ct. 709, 716–17 (2016). A limitations period is jurisdictional only if
Congress says it is. See id. at 717. And Congress said nothing in the
federal statutes to suggest that the requirements for a notice to appear are
jurisdictional. Thus, Ms. Lopez’s purported equivalence between a notice
to appear and limitations period is self-defeating.
8
For this argument, Ms. Lopez relies on Hamer v. Neighborhood
Housing Services of Chicago, 138 S. Ct. 13, 16 (2017), where the Supreme
Court reiterated that a statute’s appellate filing deadlines are
jurisdictional.
9
If the “initiation of cases [is] jurisdictional,” as Ms. Lopez argues,
the Board would presumably have lacked jurisdiction over the second
motion to reopen because it had been filed after expiration of the 90-day
filing deadline. Pet’r’s Opening Br. at 24–25.
9
Ms. Lopez relies not only on case law addressing the “initiation of
cases” but also on Pereira v. Sessions, 138 S. Ct. 2105 (2018). Reliance on
Pereira is misplaced. There the Supreme Court discussed the effect of a
notice to appear that did not comply with § 1229(a). 138 S. Ct. at 2109–10.
But we must interpret this discussion in context. See Illinois v. Lidster,
540 U.S. 419, 424 (2004) (stating that the Supreme Court often reads the
general language in opinions “as referring in context to circumstances
similar to the circumstances then before the Court and not referring to
quite different circumstances that the Court was not then considering”);
see also Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005) (“Judges
expect their pronunciamientos to be read in context”).
In Pereira, the Court decided only whether a defective notice to
appear had interrupted a noncitizen’s continuous presence in the United
States. 138 S. Ct. at 2110. The Court did not address the distinct question
of whether a defect in the notice to appear would preclude jurisdiction over
the removal proceedings. Indeed, the Court expressly declined to address
this broader question, emphasizing that the decision was “much narrower.”
Id. at 2113.
Given this context, other circuits have declined to treat Pereira as a
limitation on an immigration judge’s jurisdiction. See Gomez v. Barr, 922
F.3d 101, 110 (2d Cir. 2019) (“[W]e conclude that Pereira’s self-described
disposition of [the narrow question involving the rule requiring continuous
10
presence for ten years] is not properly read to void jurisdiction in cases in
which [a notice to appear] omits a hearing time or place.”) (emphasis in
original) (citation omitted); Hernandez-Perez v. Whitaker, 911 F.3d 305,
314–15 (6th Cir. 2018) (holding that Pereira does not preclude jurisdiction
in the agency when a defective notice to appear is followed by a notice that
contains information about the time and place of the hearing); Karingithi v.
Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019) (“Pereira was not in any
way concerned with the Immigration Court’s jurisdiction.”), quoted with
approval in Soriano-Mendosa v. Barr, 768 F. App’x 796, 802 (10th Cir.
2019) (unpublished). We join these circuits in declining to read Pereira as
an implicit pronouncement on an immigration judge’s jurisdiction.
3. Conclusion
Because the alleged defect in the notice to appear was not
jurisdictional, Ms. Lopez lacks any grounds to avoid the 90-day deadline
and prohibition on second motions to reopen. Absent such grounds, the
Board did not err in denying Ms. Lopez’s motion to reconsider the denial
of her second motion to reopen.
Petition denied.
11