Claudio Rojas v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13372
Non-Argument Calendar
____________________
CLAUDIO MARCELO ROJAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A089-232-994
____________________
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2 Opinion of the Court 22-13372
Before NEWSOM , GRANT, and ANDERSON, Circuit Judges
PER CURIAM:
Claudio Marcelo Rojas, a citizen of Argentina, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of his
third motion to reopen and terminate his removal proceedings. He
first argues that the agency lacked jurisdiction over him due to a
defective Notice to Appear (“NTA”) in light of the Supreme
Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
Alternatively, he argues that even if the agency had jurisdiction
over him, the removal proceedings were nonetheless invalid due
to the defective NTA.
After careful review of the parties’ arguments, we deny Ro-
jas’s petition.1
I
We have jurisdiction to determine our own jurisdiction, in-
cluding whether the agency had jurisdiction over an alien’s re-
moval proceedings such that it could issue a final order of removal.
Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1153 (11th Cir. 2019)
(explaining that our jurisdiction is trigged by the existence of a final
order of removal, so jurisdictional arguments that, if accepted,
1 We review the BIA’s denial of a motion to reopen for an abuse of discretion,
although we “review any underlying legal conclusions de novo.” Da-
costagomez-Aguilar v. U.S. Att’y Gen., 40 F.4th 1312, 1315 (11th Cir. 2022). We
decline to consider arguments that parties abandoned. See Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
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22-13372 Opinion of the Court 3
would invalidate the final order of removal can be reviewed even
if unexhausted).
Under our prior precedent rule, we must follow a prior
panel precedent “unless and until it is overruled by this [C]ourt en
banc or by the Supreme Court.” United States v. Brown, 342 F.3d
1245, 1246 (11th Cir. 2003).
We lack jurisdiction to review a decision of the BIA that is
purely discretionary, including a decision not to reopen a case sua
sponte. Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018).
But, where the BIA’s denial of a motion to reopen is based on non-
discretionary grounds—such as a finding that it is number-barred—
we have the power to review the basis for the denial, even where
the BIA also declines to reopen proceedings sua sponte. Id. at 870–
71.
Removal proceedings before an Immigration Judge are the
exclusive means of determining an alien’s removability. Immigra-
tion and Nationality Act § 240(a)(1), (3), 8 U.S.C. § 1229a(a)(1), (3).
The INA states that an NTA “shall be given” to an alien in removal
proceedings. INA § 239(a)(1), 8 U.S.C. § 1229(a)(1). Regulations
provide that an IJ’s jurisdiction vests, and removal proceedings
commence, when an NTA is filed with the Immigration Court. 8
C.F.R. § 1003.14; see 8 C.F.R. § 239.1. Section 239(a) of the INA
specifies the information that must be included in an NTA, which
includes the nature of the removal proceedings, the charges against
the alien, the “time and place at which the proceedings will be held,” and
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4 Opinion of the Court 22-13372
the consequences of failing to appear. INA § 239(a)(1), 8 U.S.C.
§ 1229(a)(1) (emphasis added).
In 2018, the Supreme Court determined that a document la-
beled as an NTA that did not specify the time or place of the re-
moval proceedings, as required by § 1229(a)(1), “is not a ‘notice to
appear under [§] 1229(a).’” Pereira v. Sessions, 138 S. Ct. 2105, 2110
(2018). The Supreme Court concluded that a putative NTA that
did not specify either the time or place of the removal proceedings
did not trigger the “stop-time” rule for cancellation of removal and
thus did not end the alien’s continuous physical presence in the
United States for purposes of cancellation of removal eligibility. Id.
at 2110. The Court reasoned that a “putative notice to appear that
fails to designate the specific time or place of the noncitizen’s re-
moval proceedings is not a ‘notice to appear under section 1229(a),’
and so does not trigger the stop-time rule.” Id. at 2113–14 (quoting
INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1)). It explained that a
“[f]ail[ure] to specify integral information like the time and place of
removal proceedings unquestionably would deprive the notice to
appear of its essential character.” Id. at 2116–17 (quotation omit-
ted).
In 2019, we rejected an alien’s claim that the government’s
failure to include the date of the hearing in his NTA deprived an IJ
and the BIA of jurisdiction over his removal proceedings. Pe-
rez-Sanchez, 935 F.3d at 1150, 1152–57. We acknowledged that the
Justice Department’s regulations provided that “[j]urisdiction
vests, and proceedings before an [IJ] commence, when a charging
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22-13372 Opinion of the Court 5
document is filed with the Immigration Court.” Id. at 1152 (quot-
ing 8 C.F.R. § 1003.14(a)). But we nonetheless determined that the
regulation providing that jurisdiction vests upon the filing of an
NTA, and the statutory requirements for an NTA, were claim-pro-
cessing rules rather than jurisdictional ones. Id. at 1150, 1153–57.
In 2021, the Supreme Court held, in the context of reviewing
a cancellation of removal, that the stop-time rule could be triggered
only by a single document that contained all the information re-
quired to be in an NTA. Niz-Chavez, 141 S. Ct. at 1480–86. The
Supreme Court expressly rejected the government’s position that
a deficient NTA could be cured by a later Notice of Hearing, such
that the NOH “complete[s]” the NTA “and the stop-time rule kicks
in whenever [the government] finishes delivering all the statutorily
prescribed information.” Id. at 1479. The Supreme Court noted
that application of the stop-time rule required “a” notice, which
meant a “single document containing the required information.”
Id. at 1480. Importantly for this case, the Supreme Court did not
overrule Perez-Sanchez’s holding about the NTA requirements be-
ing non-jurisdictional claim-processing rules. Id. at 1479.
After Niz-Chavez, we reiterated that the NTA requirements
in 8 U.S.C. § 1229(a) were not jurisdictional and, instead, “set[]
forth only a claim-processing rule.” Farah v. U.S. Att’y Gen., 12 F.4th
1312, 1322 (11th Cir. 2021) (quoting Perez-Sanchez, 935 F.3d at
1154–55).
Here, we conclude that the BIA did not abuse its discretion
in denying Rojas’s third motion to reopen, to the extent he raised
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6 Opinion of the Court 22-13372
a jurisdictional challenge based on Niz-Chavez. Specifically, the BIA
correctly concluded that his 2010 NTA did not deprive the IJ of ju-
risdiction. Even if Rojas is correct that his NTA was defective be-
cause it did not specify “[t]he time and place at which the proceed-
ings will be held,” see INA § 239(a)(1), 8 U.S.C. § 1229(a)(1), Perez-
Sanchez forecloses his argument that the NTA requirements are ju-
risdictional, such that the government’s failure to follow them in-
validated his removal proceedings. Perez-Sanchez, 935 F.3d at 1150,
1154. His argument that Perez-Sanchez is inconsistent with, or was
abrogated by, Niz Chavez is meritless, as Niz-Chavez merely held
that a defective NTA cannot be cured by a later NOH for stop-time-
rule purposes. 141 S. Ct. at 1479. Perez-Sanchez had earlier reached
the same conclusion as to the parties’ jurisdiction arguments. 935
F.3d at 1153–54.
In light of the foregoing, it is not necessary for us to review
whether Rojas’s motion to reopen was both time-barred and num-
ber-barred, particularly since he does not challenge the BIA’s deter-
minations in those respects. See Access Now, Inc., 385 F.3d at 1330.
In any event, the record shows that the BIA correctly concluded
that his motion was time-barred and number-barred, because his
motion was his third one seeking that form of relief, and he filed it
far more than 90 days after an order of removal was issued. 8
C.F.R. § 1003.2(c)(2).2
2 That provision states, in relevant part, “Except as provided in paragraph (c)(3) of
this section, an alien may file only one motion to reopen removal proceedings . . .
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22-13372 Opinion of the Court 7
II
We will not consider issues raised for the first time in a reply
brief. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(deeming “issues . . . raised for the first time in a . . . litigant’s reply
brief” abandoned).
The Supreme Court has confirmed that claim-processing
rules, unlike jurisdictional ones, are subject to waiver and forfeiture
by an opposing party. Nutraceutical Corp. v. Lambert, 139 S. Ct. 710,
714 (2019). Moreover, even those claim-processing rules that are
categorized as “mandatory,” which are not subject to harmless-er-
ror analysis, must be “properly raised by an opposing party” to be
enforced. Id.; see also Kontrick v. Ryan, 540 U.S. 443, 460 (2004)
(holding that “[n]o reasonable construction of [claim]-processing
rules . . . would allow a litigant” to prevail if he objected to the
claim-processing violation “after [he] has litigated and lost the case
on the merits”).
The Fifth Circuit has noted that “an objection based on a
mandatory claim-processing rule may be forfeited if the party as-
serting the rule waits too long to raise the point.” Pierre-Paul v.
Barr, 930 F.3d 684, 692 (5th Cir. 2019) (quotation omitted), abro-
gated in part on other grounds by Niz-Chavez, 141 S. Ct. at 1479–80.
Accordingly, the Fifth Circuit has concluded that in removal pro-
ceedings, “any alleged defect with the charging document must be
and that motion must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be reopened.”
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8 Opinion of the Court 22-13372
raised properly and can be forfeited if the [respondent] waits too
long to raise it.” Id. at 693.
Additionally, in Matter of Nchifor, the BIA held that a re-
spondent may not object for the first time in a motion to reopen
that the NTA did not contain the removal hearing’s time and date.
28 I. & N. Dec. 585, 589 (B.I.A. 2022).
Here, we conclude that Rojas’s non-jurisdictional challenge
based on the defective NTA fails. Although the BIA, citing Nchifor,
determined that Rojas forfeited this argument by not raising it pre-
viously during his proceedings before the agency, he does not sub-
stantively challenge that ruling in his initial brief. Rojas does make
a conclusory assertion that the BIA’s decision is meritless, in that it
applied a categorical rule to deny his claim simply because it was
raised in a motion to reopen. See Appellant’s Brief at 16. However,
Rojas never substantively engages with the law relating to such for-
feitures or the facts of his case relevant to his failure to raise the
issue until his third motion to reopen. Although Rojas’ reply brief
suggests that he may have had an “explanation of his diligence and
why he raised his objection when he did,” Reply Brief at 5–6, he
does not set out his explanation. At no point does Rojas substan-
tively engage with Nchifor and the BIA’s reliance on that matter.
We therefore deem abandoned any challenge in this respect. See
Access Now, Inc., 385 F.3d at 1330; Timson, 518 F.3d at 874.
Accordingly, we hold that the BIA did not abuse its discre-
tion in denying Rojas’s third motion to reopen, and we deny his
petition for review.
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22-13372 Opinion of the Court 9
PETITION DENIED.
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