Marvin Javier-Flores v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
JUL 19 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN JAVIER-FLORES, No. 20-71566
Petitioner, Agency No. A098-007-713
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2022**
San Francisco, California
Before: BEA, CHRISTEN, and BRESS, Circuit Judges.
Marvin Javier-Flores, a native and citizen of Honduras, petitions for review
of the Immigration Judge’s (IJ) order reinstating an order of removal entered on
*
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).
February 13, 2008. We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we
deny Javier-Flores’s petition.1
1. We may review Javier-Flores’s 2008 removal order only for a “gross
miscarriage of justice.” See Vega-Anguiano v. Barr, 982 F.3d 542, 547 (9th Cir.
2019). A gross miscarriage of justice “occurs when a . . . removal order had no
valid legal basis at the time of its issuance or at the time of its execution.” Id.(emphasis omitted). Javier-Flores argues that his 2008 removal order had no valid
legal basis because, he contends, the IJ entered the order without subject matter
jurisdiction. Javier-Flores challenges the Immigration Court’s subject matter
jurisdiction because the Notice to Appear lacked the date and time of his removal
hearing and he did not otherwise receive notice of the date and time of his removal
hearing. We disagree.
In Aguilar Fermin v. Barr and Karingithi v. Whitaker, we said a notice to
appear that lacks a date and time of the removal hearing does not deprive the
Immigration Court of jurisdiction so long as notice of the time and date of the
removal hearing is later provided. See Aguilar Fermin v. Barr, 958 F.3d 887, 895
(9th Cir. 2020); Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019). But
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Because the parties are familiar with the facts, we recite only those
facts necessary to decide the petition.
2
more recently, our en banc court held that notice of the date and time of the
removal hearing is a claim-processing rule and the absence of such notice does not
deprive the Immigration Court of subject matter jurisdiction. United States v.
Bastide-Hernandez, No. 19-30006, 2022 WL 2662044, at *5 (9th Cir. July 11,
2022) (en banc). Further, despite Javier-Flores’s assertion that he was never given
notice of the date and time of his removal hearing, the record makes clear that he
was present at his removal hearing. The IJ did not issue an in absentia removal
order and the IJ’s decision indicates that it was personally served on Javier-Flores
and that he waived his right to an appeal in the Immigration Court. The IJ did not
enter Javier-Flores’s 2008 removal order without subject matter jurisdiction and
thus a gross miscarriage of justice has not occurred.
2. We are not persuaded by Javier-Flores’s attempt to distinguish
between when the Immigration Court’s jurisdiction vested and when removal
proceedings are “initiated” under 8 U.S.C. § 1229. Bastide-Hernandez made clear
that the notice requirements in the statutory scheme on which Javer-Flores relies
are merely claim-processing provisions that do not affect the court’s subject matter
jurisdiction. Bastide-Hernandez, 2022 WL 2662044, at *5.
PETITION FOR REVIEW DENIED.
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