Lopez-Munoz v. Barr

                                                                        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); 

(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); 

(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, 

 (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.

, 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, 

,
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); 

(b)(1), (4).
                                      

(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. 

(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, 

, 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, 

 (4th Cir. 2019)

                                      4
(“[T]he immigration courts’ adjudicatory authority over removal

proceedings comes not from the agency regulation codified at 

(a), but from Congress.”); Perez-Sanchez v. Att’y Gen., 

 (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, 

 (4th Cir. 2019) (stating that 

(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, 

; Cortez, 

.

     Given this congressional delegation of authority, the Attorney

General could not unilaterally restrict immigration judges’ jurisdiction. See

Perez-Sanchez, 

 (“[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 [

(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, 

, 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, 

(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, 

 (1st Cir. 2019); Hernandez–Perez v. Whitaker, 

,
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, 

, 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. 

(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 

(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, 

 (7th Cir. 2019); see also United
States v. Cortez, 

 (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, 

 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, 

 (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, 

, 297–98 (2013) (citations omitted).
7
      The Eighth and Ninth Circuits have accepted the regulation’s
statement that it addresses jurisdiction. Ali v. Barr, 

 (8th
Cir. 2019); Karingithi v. Whitaker, 

 (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., 

 (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., 

 (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, 

 (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, 

 (10th Cir. 2015) (emphasis in original)

(quoting Hobby Lobby Stores, Inc. v. Sebelius, 

, 1157–58

(10th Cir. 2013) (Gorsuch, J., concurring)).




Attorney General’s power to regulate jurisdiction. See Ali, 

;
Karingithi, 

.
                                       8
      Section 1229(a) does not refer to “jurisdiction” or “the courts’

statutory or constitutional power to adjudicate the case.” 

 (emphasis in

original). Thus, § 1229(a) is non-jurisdictional. See Hernandez–Perez v.

Whitaker, 

, 314–15 (6th Cir. 2018) (holding that § 1229(a) is

not jurisdictional); Ortiz–Santiago v. Barr, 

 (7th Cir.

2019) (same); Karingithi v. Whitaker, 

 (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,

, 716–17 (2016). A limitations period is jurisdictional only if

Congress says it is. See 

. 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, 

 (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, 

 (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,

 (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, 

 (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, 

 (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, 

,

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, 

 (9th Cir. 2019) (“Pereira was not in any

way concerned with the Immigration Court’s jurisdiction.”), quoted with

approval in Soriano-Mendosa v. Barr, 

, 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