SANDRA LOPEZ-MUNOZ, Pеtitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 19-9510
United States Court of Appeals for the Tenth Circuit
November 4, 2019
PUBLISH. Elisabeth A. Shumaker, Clerk of Court.
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. Pаlau, Trial Attorney, U.S Department of Justice, Washington, D.C., on behalf of the Respondent.
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
This petition for review involves a collateral challenge to a removal (deportation) order. The removal proceedings began with the service of a notice tо 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. Loрez 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. Ms. Lopez‘s present petition for review involves the denial of her motion to reconsider. Ordinarily, a noncitizen2 cannot file a second motion to reopen, much less a motion to reconsider the denial of a second motion to reopen. See
Despite these bars, Ms. Lopez sought reconsideration of an otherwise prohibited second motion to reopen nearly six years
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.
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.
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, 540 U.S. 443, 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, 930 F.3d 350, 360 (4th Cir. 2019) (“[T]he immigration courts’ adjudicatory authority over removal proceedings comes not from the agency regulation codified at
Given this congressional delegation of authority, the Attorney General could not unilaterally restrict immigration judges’ jurisdiction. See Perez-Sanchez, 935 F.3d at 1156 (“[A]n agency cannot fashion a procedural rule to limit jurisdiction bestowed upon it by Congress.“).4 So
(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,
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 thе 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., 546 U.S. 500, 516 (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., 787 F.3d 1032, 1039 (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, 670 F.3d 1149, 1156 (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, 776 F.3d 1134, 1146 (10th Cir. 2015) (emphasis in original) (quoting Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1157-58 (10th Cir. 2013) (Gorsuch, J., concurring)).
Section 1229(a) does not refer to “jurisdiction” or “the courts’ statutory or constitutional power to adjudicate the case.” Id. (emphasis in original). Thus, § 1229(a) is non-jurisdictional. See Hernandez-Perez v. Whitaker, 911 F.3d 305, 314-15 (6th Cir. 2018) (holding that § 1229(a) is not jurisdictional); Ortiz-Santiago v. Barr, 924 F.3d 956, 963 (7th Cir. 2019) (same); Karingithi v. Whitaker, 913 F.3d 1158, 1160 (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, 136 S. Ct. 709, 716-17 (2016). A limitations period is jurisdictional only if Congress says it is. See id. at 717. 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-defeаting.
Ms. Lopez relies not only on case law addressing the “initiation of cases” but also on Pereira v. Sessions, 138 S. Ct. 2105 (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, 540 U.S. 419, 424 (2004) (stating that the Supreme Court often reads
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, 922 F.3d 101, 110 (2d Cir. 2019) (“[W]e conclude that Pereira‘s self-described disposition of [the narrow question involving the rule requiring continuous presеnce 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, 911 F.3d 305, 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, 913 F.3d 1158, 1159 (9th Cir. 2019) (”Pereira was not in any way concerned with the Immigration Court‘s jurisdiction.“), quoted with approval in Soriano-Mendosa v. Barr, 768 F. App‘x 796, 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
Bеcause 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.
Notes
Ortiz-Santiago v. Barr, 924 F.3d 956, 963 (7th Cir. 2019); see also United States v. Cortez, 930 F.3d 350, 359 (4th Cir. 2019) (“To deem [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
8 C.F.R. § 1003.14(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.
City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013) (citations omitted).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 casе 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 congrеssional 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 incorrеct application of agency authority 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.”