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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12038
Non-Argument Calendar
________________________
Agency No. A072-347-641
PEDRO ANTONIO ALVAREZ,
a.k.a. Pedro Antonio Alvarez Izquierdo,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 11, 2020)
Before BRANCH, LAGOA, and HULL, Circuit Judges.
PER CURIAM:
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Pedro Antonio Alvarez seeks review of the Board of Immigration Appeals’
(“BIA”) denial of his motion for reconsideration and reopening under 8 U.S.C.
§ 1229a(c)(6)–(7). On appeal, he argues that the immigration court lacked
jurisdiction over his removal proceedings because his notice to appear (“NTA”)
did not contain the date and place of the proceedings as required by statute.
Because our precedent squarely forecloses Alvarez’s argument, we deny his
petition.
I.
On September 21, 2006, the Department of Homeland Security (“DHS”)
served upon Alvarez via regular mail an NTA which ordered him to appear before
an Immigration Judge (“IJ”) in Miami “on a date to be set at a time to be set.”
Less than a month later, on October 11, 2006, the immigration court mailed
Alvarez a notice of hearing, advising him that his initial hearing before the IJ had
been scheduled for September 27, 2007 at 8:30 AM. Alvarez appeared before the
IJ at that time. The removal proceedings concluded on June 3, 2009, when the IJ
issued a written decision ordering Alvarez to be removed to Cuba.
Although Alvarez initially appealed the IJ’s decision to the BIA, he later
voluntarily moved to dismiss his appeal, which the BIA granted on July 6, 2010.
More than five years later, on November 23, 2015, Alvarez filed with the BIA a
“motion to reopen sua sponte previously dismissed appeal,” which the BIA
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rejected. On April 20, 2016, Alvarez filed with the BIA a “motion to
reopen/reconsider,” which the BIA also denied. Undeterred, on July 15, 2018,
Alvarez filed with the BIA a “statutory motion to reconsider and terminate in light
of [Pereira 1], motion to reconsider in light of [Dimaya2], [and a] motion to reopen
based upon new evidence.” Relevant here, Alvarez argued that the BIA should
grant reconsideration and terminate his removal proceedings in light of Pereira
because his NTA did not specify the time and date of his initial removal hearing.
On April 30, 2019, the BIA issued a decision denying reconsideration and
reopening under 8 U.S.C. § 1229a(c)(6)−(7) and declining to exercise its sua
sponte authority to reconsider or reopen Alvarez’s removal proceedings. As to
Alvarez’s request for reconsideration in light of Pereira, the BIA concluded that
his arguments were foreclosed as a matter of law because the omission of the time
and date of his initial removal hearing was “not a jurisdictional defect.” Alvarez
appealed the BIA’s order denying his motion. On appeal, Alvarez challenges only
the agency’s jurisdiction over his removal proceedings.
II.
Where, as here, the BIA issues its own decision that does not adopt the
decision of an IJ, we review only the BIA’s decision. Reyes-Sanchez v. U.S. Att’y
1
Pereira v. Sessions,
138 S. Ct. 2105 (2018).
2
Sessions v. Dimaya, 138 S. Ct 1204 (2018).
3
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Gen.,
369 F.3d 1239, 1242 (11th Cir. 2004). We review the BIA’s denial of a
motion to reconsider for abuse of discretion, which requires us to consider whether
the BIA acted arbitrarily, capriciously, or contrary to law. See Ferreira v. U.S.
Att’y Gen.,
714 F.3d 1240, 1242–43 (11th Cir. 2013). We review questions of law
de novo. De Sandoval v. U.S. Att’y Gen.,
440 F.3d 1276, 1278 (11th Cir. 2006).
Section 1229 of Title 8 of the United States Code provides in pertinent part
that in “removal proceedings under section 1229a of this title, written notice . . .
shall be given in person to the alien . . . specifying . . . [t]he time and place at
which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). In Pereira, the
Supreme Court considered whether an NTA that did not meet those requirements
could trigger the so-called “stop-time rule” set forth in § 1229b(d)(1)(A). 3
Pereira,
138 S. Ct. at 2109–10. Answering that question in the negative, the Supreme
Court held that “a putative notice to appear that fails to designate the specific time
or place of the noncitizen’s removal proceedings is not a ‘notice to appear under
section 1229(a).’”
Id. at 2113–14.
But the Supreme Court in Pereira did not address whether a deficient NTA
fails to trigger the BIA’s jurisdiction over the noncitizen’s removal proceedings.
3
Nonpermanent residents who have been “physically present” in the United States for 10
years may be eligible for cancellation of removal. 8 U.S.C. § 1229b(b)(A). The period of
physical presence must be continuous and is “deemed to end . . . when the alien is served a
notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1)(A).
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See
id. at 2110 (defining the “narrow question” of the case without reference to
jurisdiction). Here, Alvarez asks the court to consider the Supreme Court’s
holding in Pereira together with 8 C.F.R. § 1003.14(a), which provides:
“Jurisdiction vests, and proceedings before an Immigration Judge commence,
when a charging document is filed with the Immigration Court by the Service.” 8
C.F.R. § 1003.14(a). Alvarez therefore argues that the IJ never had jurisdiction
over his removal case because DHS did not include the time or date of his removal
hearing.
We considered this very argument in Perez-Sanchez v. U.S. Attorney
General,
935 F.3d 1148, 1150 (11th Cir. 2019). In that case, we agreed with
Perez-Sanchez that the NTA was deficient.
Id. at 1154. Regardless, the
regulations did not compel us to conclude that the NTA’s deficiency meant the
agency’s jurisdiction over Perez-Sanchez’s case never vested.
Id. We reasoned
that Congress, not the agency, determines the scope of the agency’s jurisdiction.
Id. at 1155. Therefore, “an agency cannot fashion a procedural rule to limit
jurisdiction bestowed upon it by Congress.”
Id. We explained that “both [8 C.F.R.
§ 1003.14(a)] and [8 U.S.C. § 1229(a)] set forth only claim-processing rules with
respect to the service or filing of an NTA.”
Id. at 1153. And “[b]ecause neither 8
U.S.C. § 1229(a) nor 8 C.F.R. § 1003.14 speaks to jurisdiction, the IJ and the BIA
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properly exercised jurisdiction over his removal hearing based on the authority
conferred upon them by 8 U.S.C. § 1229a(a)(1).”
Id. at 1157.
Alvarez’s argument that the defective NTA in his case failed to vest
jurisdiction in the Immigration Court is thus squarely foreclosed by our precedent
in Perez-Sanchez. See Smith v. GTE Corp.,
236 F.3d 1292, 1300 n.8 (11th Cir.
2001) (“Under the well-established prior panel precedent rule of this Circuit, the
holding of the first panel to address an issue is the law of this Circuit, thereby
binding all subsequent panels unless and until the first panel's holding is overruled
by the Court sitting en banc or by the Supreme Court.”). Accordingly, we deny his
petition for review.
PETITION DENIED.
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