Raul Deocampo v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL MOLINA DEOCAMPO, No. 16-72298
19-70091
Petitioner,
Agency No. A031-252-889
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 1, 2019**
Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON,*** District
Judge.
Petitioner Raul Molina Deocampo (“Petitioner”) is a native and citizen of
the Philippines. He petitions for review of a Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
(“BIA”) decision denying his motion to reopen and terminate his removal
proceedings based on the Supreme Court’s holding in Pereira v. Sessions, 138 S.
Ct. 2105 (2018).1 Additionally, although a stay of removal is already in effect,
Petitioner again moves the Court to stay his removal.
On February 7, 2019, the Government (“Respondent”) filed three motions in
response to Petitioner’s petition for review: (1) to consolidate the petitions for
review in Nos. 19-70091 and 16-72298, as required by the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1252(b)(6); (2) to summarily deny the petition
for review in No. 19-70091 under Ninth Circuit Rule 3-6(b) because Petitioner’s
position has been foreclosed by this Court’s opinion in Karingithi v. Whitaker, 913
F.3d 1158, 1160 (9th Cir. 2019); and (3) to suspend filing deadlines where further
filings would be futile. On February 19, 2019, Petitioner filed his Response in
Opposition to Respondent’s Motion for Summary Disposition, and moved for his
petition for review in No. 19-70091 to “be heard by the [C]ourt en banc pursuant
to Rule 35 of the Federal Rules of Appellate Procedure.”2 On March 1, 2019, the
Court granted Respondent’s motions to consolidate and suspend filing deadlines.
We have reviewed the record and Petitioner’s filings in this Court, including
1
This is Petitioner’s second petition for review, originally filed under No. 19-
70091. We address the first petition for review (in No. 16-72298) in a separate
memorandum disposition filed contemporaneously with this memorandum
disposition. The Court previously consolidated both cases.
2
Petitioner’s Rule 35 request for en banc review is premature.
2
Petitioner’s Opposition. This petition for review is appropriate for summary
disposition under Ninth Circuit Rule 3-6 because Petitioner’s argument is
foreclosed by Ninth Circuit authority. See United States v. Hooton, 693 F.2d 857,
858 (9th Cir. 1982) (per curiam) (setting standard). Deocampo’s petition for
review is denied.
Petitioner’s argument that the notice to appear (NTA) that commenced his
removal proceeding was insufficiently detailed to vest jurisdiction has already been
rejected in Karingithi. See 913 F.3d at 1160. In Karingithi, the Court explained
that jurisdiction vests in the Immigration Judge (“IJ”) when a charging document,
such as an NTA, is filed with the Immigration Court. Id. at 1159–60 (citing 8
C.F.R. §§ 1003.13, 1003.14(a)). While 8 C.F.R. § 1003.15(b) details the specific
information than an NTA must contain in order to properly vest jurisdiction in the
IJ, “the regulation does not require that the time and date of proceedings appear in
the initial notice.” Id. at 1160; see 8 C.F.R. § 1003.15(b). Instead, “the regulation
compels inclusion of such information where practicable.” Karingithi, 913 F.3d at
1160 (citation and quotation omitted).3 If “the time, place and date of the initial
removal hearing” are not included in the NTA, the Immigration Court is
“responsible for scheduling . . . and providing notice to . . . the alien of the time,
3
Although Karingithi did not consider “place,” 8 C.F.R. § 1003.18 lists “place”
alongside “time” and “date” as information that can be included “where
practicable.” 8 C.F.R. § 1003.18.
3
place, and date of [the] hearing.” 8 C.F.R. § 1003.18(b).
Petitioner’s attempts to frame Karingithi as a misreading of the Supreme
Court’s holding in Pereira are unpersuasive.4 In Pereira, the Supreme Court was
extremely careful to confine its holding to the very narrow statutory intersection
between 8 U.S.C. § 1229b(d)(1)’s stop-time rule and 8 U.S.C. § 1229(a)’s
definition of an NTA. 138 S. Ct. at 2110. Neither Pereira nor 8 U.S.C. § 1229
reference the jurisdictional question at issue in Karingithi. Karingithi, 913 F.3d at
1160–61. Consequently, Pereira is inapplicable to the petition for review at issue.
The petition for review is DENIED.
4
And, in any event, we are bound by Karingithi. See Miller v. Gammie, 335 F.3d
889, 893 (9th Cir. 2003) (en banc) (holding that this court is bound by prior circuit
authority unless it is clearly irreconcilable with intervening higher authority).
4