Lopez-Munoz v. Barr
941 F.3d 1013
| 10th Cir. | 2019Background
- Sandra Lopez-Munoz received an initial notice to appear (NTA) that omitted the date/time of her immigration hearing; she later received a separate notice with that information.
- Immigration Judge (IJ) denied her request for cancellation of removal; the Board of Immigration Appeals (BIA) affirmed.
- Lopez filed a second motion to reopen nearly six years after the removal order and then sought reconsideration after the BIA denied reopening; these filings were untimely and ordinarily barred by statute and regulation.
- Lopez argued the defective NTA (omitting date/time/place) deprived the IJ/BIA of jurisdiction, which would excuse the 90-day deadline and the prohibition on second motions to reopen.
- Statutory/regulatory framework implicated: 8 U.S.C. § 1229(a) (NTA contents), 8 U.S.C. § 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.23(b)(1) (90‑day reopening deadline), and 8 C.F.R. § 1003.14(a) (regulatory statement that filing a charging document vests IJ jurisdiction).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a defective NTA (missing time/place) deprive the IJ of jurisdiction under 8 C.F.R. §1003.14(a)? | The regulatory rule vests jurisdiction on filing a charging document; omission of date/time means jurisdiction never vested. | The regulation cannot restrict jurisdiction Congress delegated to IJs; the regulation's use of “jurisdiction” is non-jurisdictional. | Court: Regulatory defect is not jurisdictional; AG regulation cannot curtail congressional grant of IJ jurisdiction. |
| Does §1229(a)’s requirement that an NTA specify time/place make a defective NTA jurisdictional? | §1229(a) mandates time/place; omission should be treated as jurisdictional and excuse procedural bars. | §1229(a) does not speak to courts’ adjudicatory power; requirements are non-jurisdictional. | Court: Statutory requirement is non-jurisdictional; Congress did not clearly make it jurisdictional. |
| Does Pereira v. Sessions compel treating a defective NTA as jurisdictional? | Pereira interpreted §1229(a) and supports treating defects as voiding proceedings. | Pereira addressed continuous-presence interruption, not IJ jurisdiction; it was narrow. | Court: Pereira is not controlling on IJ jurisdiction; it dealt with a distinct statutory question. |
| If the defect is non-jurisdictional, can Lopez overcome the 90-day and second-motion bars? | A jurisdictional defect is necessary to excuse the late second motion/reconsideration. | Without a jurisdictional defect, statutory/regulatory time limits bar the filings. | Court: Because defect is non-jurisdictional, Lopez cannot overcome procedural bars; petition denied. |
Key Cases Cited
- Kontrick v. Ryan, 540 U.S. 443 (2004) (distinguishes true jurisdictional defects from claim-processing rules)
- City of Arlington v. FCC, 569 U.S. 290 (2013) (agency labeling of limits as “jurisdictional” is not dispositive)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (addressed effect of defective NTA on interruption of continuous presence; decision was narrow)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (Congressional clarity required to treat a statutory requirement as jurisdictional)
- Musacchio v. United States, 136 S. Ct. 709 (2016) (statutes of limitations are not jurisdictional absent clear congressional statement)
- United States v. Cortez, 930 F.3d 350 (4th Cir. 2019) (IJ authority derives from Congress, not agency regulation)
- Perez-Sanchez v. Att'y Gen., 935 F.3d 1148 (11th Cir. 2019) (agency cannot restrict jurisdiction conferred by Congress)
- Pontes v. Barr, 938 F.3d 1 (1st Cir. 2019) (defect in NTA does not necessarily create jurisdictional defect)
- Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018) (Pereira did not void IJ jurisdiction when a later notice supplied time/place)
- Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019) (Pereira's narrow holding does not void jurisdiction for defective NTAs)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (Pereira did not concern Immigration Court jurisdiction)
- Ali v. Barr, 924 F.3d 983 (8th Cir. 2019) (accepted regulation’s language about jurisdiction but did not confront the specific statutory-jurisdiction issue)
- Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (regulatory “jurisdiction” language descriptive, not limiting)