Ricardo Lagunes-Hernandez v. Merrick B. Garland ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 1, 2021*
Decided October 5, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 21-1178
RICARDO LAGUNES-HERNANDEZ, On Petition for Review of an Order
Petitioner, of the Board of Immigration Appeals.
v. No. A206-304-226
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
ORDER
Ricardo Lagunes-Hernandez, a citizen of Mexico, petitions for review of a Board
of Immigration Appeals’ order denying a motion to remand his case to the immigration
judge to consider cancellation of removal. He asserts that his initial Notice to Appear in
immigration court did not specify the time and place of the removal proceedings—that
information came in a later document—and argues that, under Pereira v. Sessions,
138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the government’s
failure to issue a single initial Notice bearing this information resulted in the continued
* We granted the parties’ joint motion to waive oral argument, and the petition is
therefore submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2).
No. 21-1178 Page 2
accrual of time toward the 10 years of continuous physical presence in the United States
necessary to seek cancellation of removal. See 8 U.S.C. § 1229b(b)(1). But even after
Pereira and Niz-Chavez, we’ve made clear that a petitioner seeking to present such a
theory in this court must show either that he timely objected to a defective Notice or that
his delay in raising the issue was excusable and that he was prejudiced by the defect. See,
e.g., Mejia-Padilla v. Garland, 2 F.4th 1026 (7th Cir. 2021); Ortiz-Santiago v. Barr, 924 F.3d
956 (7th Cir. 2019). Otherwise, the argument is forfeited.
Lagunes-Hernandez has not made any of these showings. Although represented
by counsel at the time, he did not object to the defective Notice during removal
proceedings before the immigration judge. Nor was his failure to object excusable,
especially since Pereira was decided in June 2018, while his case was still before the
immigration judge, and could have been cited in an argument for dismissing the
proceedings. And Lagunes-Hernandez has not demonstrated prejudice. Despite a
defective initial Notice, he was subsequently advised of the time and place of his
removal hearing and appeared before the immigration judge (with counsel) at the
appointed hour. He doesn’t contend that the defective Notice hampered his ability to
prepare for the hearing or otherwise affected the proceedings.
Because Lagunes-Hernandez has forfeited the defective-Notice argument and
does not challenge any other aspect of the Board’s order, his petition for review is
DENIED.