Diego Penaranda Arevalo v. Pamela Bondi , United States Attorney General

23-6584; 24-2790
Penaranda Arevalo v. Bondi
In the
United States Court of Appeals
For the Second Circuit
August Term, 2024
Nos. 23-6584, 24-2790
D IEGO PENARANDA AREVALO,
Petitioner,
v.
PAMELA B ONDI ,
U NITED S TATES ATTORNEY GENERAL ,
Respondent.∗
On Petition for Review of an Order of
the Board of Immigration Appeals.
A RGUED (23-6584): S EPTEMBER 27, 2024
S UBMITTED (24-2790): J ANUARY 13, 2025
D ECIDED: MARCH 7, 2025
∗ The Clerk of Court is directed to amend the official caption to conform
with the above.

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Before: RAGGI and N ARDINI , Circuit Judges, and
MERLE , District Judge.*
1
Petitioner Diego Penaranda Arevalo, a citizen of Ecuador
unlawfully present in the United States, sought cancellation of a
removal order under 8 U.S.C. § 1229b(b)(1). An immigration judge
denied his application, the Board of Immigration Appeals (“BIA”)
affirmed, and Penaranda petitioned this Court for review. While that
petition was pending, Penaranda filed a motion with the BIA
requesting that his removal proceedings be terminated or remanded.
He argued, for the first time, that his removal order was invalid
because his original notice to appear failed to include the date and
time of his initial hearing, as required by 8 U.S.C. § 1229(a). The BIA
denied the motion, reasoning that Penaranda had forfeited any
objection based on the time-and-place requirement by failing to raise
it in a timely manner. Penaranda now petitions for review of that
decision as well, and we decide both cases in tandem.
Beginning with Penaranda’s second petition, we reaffirm our
decision in Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), that the
time-and-place requirement is a non-jurisdictional rule, and we hold
that the BIA did not abuse its discretion in concluding that Penaranda
forfeited his objection. We therefore DENY that petition.
In his first petition, Penaranda principally challenges the
immigration judge’s finding that he gave false testimony for the
purpose of obtaining an immigration benefit. That finding led the
immigration judge to conclude that Penaranda failed to establish he
possessed good moral character, and that he was therefore statutorily
ineligible for the requested relief. This Court lacks jurisdiction to
review Penaranda’s petition insofar as it contests whether and why
* Judge Natasha C. Merle, United States District Judge for the Eastern
District of New York, sitting by designation.

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he testified falsely, because these are unreviewable questions of fact
under 8 U.S.C. § 1252(a)(2)(B)(i). Penaranda also argues that the
immigration judge held him to a higher burden of proof than required
when making its factual finding. Although this is a question of law
that this Court has jurisdiction to review, it fails on the merits.
Accordingly, Penaranda’s first petition is DISMISSED in part and
DENIED in part.
ANTHONY GUIDICE , Fairport, NY, for
Petitioner.
TARYN L. ARBEITER , Trial Attorney, Office of
Immigration Litigation (Brian M. Boynton,
Principal Deputy Assistant Attorney
General, Aimee J. Carmichael, Acting
Assistant Director, Janice K. Redfern, Senior
Litigation Counsel, on the brief), U.S.
Department of Justice, Washington, DC, for
Respondent.
WILLIAM J. N ARDINI , Circuit Judge:
Petitioner Diego Penaranda Arevalo, a citizen of Ecuador, has
lived in the United States unlawfully for more than twenty years.
Immigration authorities ordered him removed to his native country,
and he applied for cancellation of removal, a discretionary form of
relief. An immigration judge (the “IJ”) denied his application on the
ground that he failed to meet the statutory requirement of having
maintained good moral character during the decade preceding his

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application. That conclusion rested on the IJ’s findings (1) that
Penaranda testified falsely regarding both the bona fides of his
marriage to his first wife, Lucy Raposo, and the origin of his
relationship with his second wife, Lucia Medeiros (Lucy’s mother);
and (2) that he gave that false testimony for the purpose of obtaining
an immigration benefit—namely, cancellation of removal. The Board
of Immigration Appeals (“BIA”) affirmed the IJ’s decision.
Penaranda petitioned this Court for review of the BIA’s judgment (the
“2023 petition”). While that petition was pending, Penaranda filed a
motion with the BIA to terminate or remand his removal proceedings
on the ground, raised for the first time, that his removal order was
invalid because his original notice to appear sent in 2012 failed to
include the date and time of his initial hearing, as required by 8 U.S.C.
§ 1229(a). The BIA denied that motion, reasoning that Penaranda had
forfeited any objection based on the time-and-place requirement by
failing to raise it in a timely manner. Penaranda now petitions for
review of that decision as well (the “2024 petition”), and we decide
both cases in tandem.1
Beginning with Penaranda’s 2024 petition, we reaffirm our
decision in Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), that the
time-and-place requirement is a non-jurisdictional rule, and we hold
that the BIA did not abuse its discretion in concluding that Penaranda
forfeited his objection. We therefore DENY that petition.
1 We heard oral argument on the first petition for review on September 27,
2024. Briefing on the second petition was completed on January 13, 2025.

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Next, we turn to Penaranda’s 2023 petition, which raises two
challenges concerning the agency’s findings that Penaranda gave
false testimony and that he did so to obtain cancellation of removal.
First, Penaranda argues that these findings were erroneous in light of
the record. This Court lacks jurisdiction to review whether and why
Penaranda testified falsely, because these are unreviewable questions
of fact. See 8 U.S.C. § 1252(a)(2)(B)(i). Second, Penaranda argues that
the IJ found that he gave false testimony concerning the bona fides of
his marriage to Lucy by applying an incorrect legal standard;
specifically, he contends that the IJ required Penaranda to rebut that
false testimony charge by clear and convincing evidence when the
law required only a preponderance of the evidence. Although this
argument raises a question of law over which this Court has
jurisdiction, it is meritless. Accordingly, Penaranda’s 2023 petition is
DISMISSED in part and DENIED in part.
I. Background
A. Penaranda’s Attempts to Obtain Permanent Resident
Status
Penaranda entered the United States without authorization in
December 2001 at age 19. In August 2007, roughly a year after failing
to obtain lawful permanent resident status through his father, a
permanent resident, Penaranda was arrested by the U.S. Department
of Homeland Security (“DHS”) and placed in removal proceedings.
At that time, Penaranda was living with and dating Lucia Medeiros,
who was in the process of divorcing her then-husband, Manuel
Raposo. In June 2008, while Penaranda’s removal and Lucia’s divorce

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were still pending, Penaranda married Lucia’s daughter, Lucy
Raposo, a United States citizen. 2 Penaranda’s marriage to Lucy
allowed him to ward off removal, at least for a time. A few weeks
after their marriage, in July 2008, Lucy filed, on Penaranda’s behalf, a
Form I-130 Petition for Alien Relative—the first step required of a U.S.
citizen or permanent resident applying to sponsor a relative for
permanent residence. Shortly thereafter, Penaranda filed a
Form I-485 Application to Register Permanent Residence or Adjust
Status. In December 2008, the immigration court terminated
Penaranda’s removal proceedings to allow the U.S. Citizenship and
Immigration Services (“USCIS”) to adjudicate his application. USCIS
approved Lucy’s I-130 petition in March 2009, thus allowing
Penaranda to seek permanent resident status as the immediate
relative of a U.S. citizen. Meanwhile, Penaranda’s I-485 application
remained pending.
In 2010, Penaranda’s second attempt to obtain permanent
residence began to fail. In December of that year, Lucy called the
tipline for U.S. Immigration and Customs Enforcement (“ICE”) and
reported that she had married Penaranda for the sole purpose of
helping him to obtain permanent residence. She later met with two
USCIS officers from the agency’s Fraud Detection and National
Security Directorate at a police station, where she signed a sworn
affidavit admitting that she had married Penaranda at her mother’s
2 Lucy’s legal name, like her mother’s, is Lucia. Adopting the convention
used by the parties and the immigration judge, this opinion refers to the younger
Lucia as Lucy to differentiate between the two women.

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request to help him obtain permanent residence. After discussing the
case with her “current boyfriend,” she “decided [she] needed to come
clean.” Certified Admin. R. (“CAR”) 675.3 To that end, she stated:
“I wish to withdraw any and all support for Diego and I do not wish
to sponsor him in any way for immigration purposes.” Id. at 674.
Following Lucy’s statement, USCIS began proceedings to revoke the
approval of her I-130 petition. Ultimately, in March 2012, USCIS
revoked her petition and denied Penaranda’s I-485 application for
permanent residence.
In April 2012, DHS initiated removal proceedings against
Penaranda for the second time, issuing a notice to appear that charged
him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being in
the United States without admission or parole.4 While his removal
proceedings were pending, Penaranda divorced Lucy in September
2012 and then married her mother, Lucia, in March 2013. Then, in
September 2013, Lucia, a naturalized U.S. citizen since 2007, filed a
3 Citations to “CAR” refer to the certified administrative record in No. 23-
6584.
4 DHS later added a charge of removability under 8 U.S.C.
§ 1182(a)(6)(C)(i), which provides that an alien is inadmissible who, “by fraud or
willfully misrepresenting a material fact, seeks to procure . . . a visa, other
documentation, or admission into the United States . . . .” DHS alleged that in July
of 2008, Penaranda filed an I-130 petition based on a marriage to a U.S. citizen
(Lucy) that was entered into for the sole purpose of evading the immigration laws.
The immigration judge denied this charge because it was Lucy, not Penaranda,
who filed the I-130 petition, and thus Penaranda himself did not commit the
alleged misrepresentation.

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Form I-130 petition on Penaranda’s behalf, as her daughter had done
while married to Penaranda.
Citing his (new) marriage to a U.S. citizen and Lucia’s pending
I-130 petition, Penaranda moved several times to continue his
removal proceedings. USCIS granted nine continuances, but in
March 2018, the agency issued a notice of intent to deny the I-130
petition. Notably, in response to that notice, Lucia submitted an
unsworn affidavit from Lucy dated April 2018, recanting her 2010
admission that her marriage to Penaranda was a sham. Nonetheless,
in July 2018, USCIS denied Lucia’s I-130 petition because the agency
determined that Penaranda had entered into his prior marriage with
Lucy “for the purpose of evading immigration laws.” Id. at 1248. That
determination precluded USCIS from granting Lucia’s petition,
pursuant to 8 U.S.C. § 1154(c), notwithstanding the agency’s finding
that Penaranda’s marriage to Lucia was “bona fide.” Id. at 1246. The
agency consequently resumed Penaranda’s removal proceedings.
B. Penaranda’s Application for Cancellation of Removal
In April 2019, after the resumption of his removal proceedings,
Penaranda conceded at a hearing before an immigration judge that he
was removable under 8 U.S.C. § 1182(a)(6)(A)(i) because he lacked
legal status, but he indicated that he wished to apply for cancellation
of removal. He subsequently filed a formal application for
cancellation of removal, pursuant to 8 U.S.C. § 1229b(b)(1). To qualify
for cancellation of removal, an applicant must establish:
(1) continuous physical presence in the United States for ten years;

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(2) “good moral character” during this period; (3) no criminal
convictions under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3); and
(4) “exceptional and extremely unusual hardship” to a qualifying
relative, including the applicant’s parent or spouse, provided they are
U.S. citizens or lawful permanent residents. 8 U.S.C.
§ 1229b(b)(1)(A)–(D). Penaranda submitted that he met each of these
criteria. As to the fourth factor, he alleged that his removal would
cause Lucia and his parents, who were permanent residents, to suffer
exceptional and extremely unusual hardship.
1. Documentary Evidence
During the removal proceedings, DHS made several
evidentiary submissions. For one, the agency submitted Lucy’s 2010
affidavit in which she admitted having married Penaranda for the
purpose of evading immigration laws. That affidavit provided
extensive details about the nature of her mother’s relationship with
Penaranda. Lucy stated that Lucia met Penaranda in 2005 through “a
Yahoo chat site for those fifty and over,” and that he visited Lucia a
month later, at which point Lucy met him for the first time. CAR 674.
Penaranda then moved in with Lucia on a part-time basis for about a
year before living with her full-time. In February 2008, several
months after Penaranda’s arrest by immigration officers, Penaranda
and Lucia visited Lucy at her apartment and asked her to “‘do them
a big favor’ and marry Diego so that he could stay in the U.S.” Id.
Lucy did not immediately agree and asked for some time to consider
the request. The next day, she asked to speak to Penaranda’s lawyer
about his immigration case. During a meeting with the lawyer,

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Michael Berger, he informed Lucy that in order to help Penaranda
remain in the United States, she would need to stay married to him
for three years and live with him throughout that period. Ultimately,
she married Penaranda in June 2008 and was promptly asked to sign
“a bunch of papers for immigration purposes,” which she did
“without looking.” Id. Lucy also stated that when she and Penaranda
attended an interview concerning Penaranda’s I-485 application in
December 2009, she asked to speak to a USCIS officer so that she could
withdraw her support for Penaranda, but Berger “would not let [her]
speak and said [she] had to remain silent.” Id.
In addition to Lucy’s affidavit, DHS submitted several other
records suggesting that Lucy’s marriage to Penaranda was a sham.
Those submissions included records relating to Penaranda’s July 2009
arrest for assaulting Manuel Raposo (Lucia’s son and Lucy’s brother):
(1) the criminal information, which refers to Manuel as Penaranda’s
“stepson,” id. at 606; and (2) the police report, which states that
Manuel “began arguing with his mother’s boyfriend, suspect, Diego
D. Penaranda . . . [who] pushed and punched” Manuel, id. at 604.
DHS also submitted four screenshots of Lucy’s 2010 profile page for
the social networking site MySpace, which included photographs of
Penaranda. In the captions for each of the photographs, Lucy referred
to Penaranda as her “step dad”; for example, in one she wrote, “My
Mom -N- My Son [] -N- My Step Dad Diego.” Id. at 567. Her profile
also referenced her unhappy marital history, her desire for no “more
pain and broken hearts,” that she did not need to have money spent
on her and did not want to be a friend of any man who had a history

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of spousal abuse, and that she had been married twice (even though
her marriage to Penaranda would have been, in fact, her third
marriage). Id. at 566.
2. Testimony
Over the course of three merits hearings concerning
Penaranda’s application for cancellation of removal, several
witnesses testified before the immigration judge, including
Penaranda, Lucia, and Lucy.
Penaranda testified during the initial hearing in September
2019. He stated that he met Lucy online in 2005, but later testified that
he met Lucia first. He testified that about a year after meeting Lucy,
when he was already living with her family (including Lucia), he and
Lucy got engaged. They then married in 2008 “because [they] loved
each other,” CAR 192, but eventually divorced in September 2012 due
to Lucy’s drug use, infidelity, and failure to take care of her children.
Following the divorce, Penaranda continued to live with Lucy, her
children, and Lucia. He testified that he and Lucia later began dating
sometime in 2013. According to Penaranda, Lucy’s reaction to their
relationship was “okay.” Id. at 216.
Lucia testified during the second hearing in January 2020. She
stated that she first met Penaranda when Lucy brought him home in
2005. When asked how they became romantically involved, she
explained that after Lucy and Penaranda divorced, she was taking
care of Lucy’s children because Lucy was “in a lot of trouble,” and she
“wanted to keep Diego for the children” because he “did everything

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for [them].” Id. at 288–89. Lucia stated that it was around that time—
October of 2012—when she began to have feelings for him.
Finally, Lucy testified during the third hearing in November
2020. She denied that she had married Penaranda to help him obtain
immigration status, and testified that she did not recall why she
would have said otherwise to ICE in 2010 “unless [she] was mad at
him or something.” Id. at 475. But Lucy also offered testimony that
contradicted Penaranda’s and her mother’s accounts. In particular,
she stated that she began referring to Penaranda as her stepfather in
2010 after learning that he had become romantically involved with
her mother—two years before Penaranda and Lucia said their
romantic relationship began. When confronted with her written
statement in support of Penaranda’s latest application for cancellation
of removal, in which she asserted that Penaranda fell in love with
Lucia only after he divorced Lucy in 2012, Lucy stated, “I misspoke on
that,” and reiterated that Penaranda “fell in love with [her] mom prior
to [their divorce].” Id. at 518–19. She also conceded that the
biography section of her 2010 MySpace profile: did not mention
Penaranda, stated that she had been married twice even though
Penaranda was her third husband at that time, and gave the
impression that she was seeking a relationship.
Following Lucy’s testimony, the immigration judge called
Penaranda back to the stand to address Lucy’s statement that she
regarded him as her stepfather as early as 2010. Penaranda confirmed
that Lucy had testified accurately as to her own feelings toward him

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as of 2010, but he insisted that he had feelings for Lucia only as a
son-in-law at that time.
C. The IJ’s Decision
On March 25, 2021, the IJ issued a written decision denying
Penaranda’s application for cancellation of removal. The IJ explained
that he would make a determination of Penaranda’s credibility based
on “the totality of the evidence, and all relevant factors,” including
the inherent plausibility of his account, the consistency between oral
and written statements, the internal inconsistency of such statements,
and the consistency of such statements with the evidence in the
record. CAR 76 (citing 8 U.S.C. § 1229a(4)(C)).5 He then set forth the
four criteria that Penaranda was required to meet to obtain
cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1), and stated
that Penaranda “bears the burden to prove that he is statutorily
eligible and merits a favorable exercise of discretion,” citing 8 U.S.C.
§ 1229a(c)(4)(A) and 8 C.F.R. § 1240.8(d). Id.
After finding that Penaranda had met his burden to prove his
continuous physical presence in the United States since entering the
country illegally, the IJ went on to consider whether Penaranda had
been a person of good moral character for the ten years preceding his
application. He noted that, pursuant to 8 U.S.C. § 1101(f)(6), “[a]n
applicant will be deemed to lack good moral character if it is found
5 Although the IJ cited directly to the Immigration and Nationality Act, this
opinion will cite the corresponding provisions of the U.S. Code for consistency and
ease of reference.

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that he has given false testimony for the purpose of obtaining an
immigration benefit.” 6 Id. at 78. Such false testimony, the IJ
explained, includes testimony given in the subject removal
proceedings. DHS alleged that Penaranda provided false testimony
on two related issues: first, when he and Lucia began their romantic
relationship, and second, the bona fides of his marriage to Lucy.
The IJ considered each charge in turn. With respect to the
beginning of Penaranda’s romantic relationship with Lucia, the IJ
noted that both Penaranda and Lucia testified that their relationship
did not begin until after Penaranda divorced Lucy in September 2012.
But the IJ also noted that Penaranda changed his testimony twice as
to whether his relationship with Lucia began before or after his
divorce from Lucy. Additionally, the IJ found that two pieces of
documentary evidence undermined Penaranda’s timeline. The first
is the criminal information for Penaranda’s July 2009 arrest for
assaulting Lucia’s son Manuel, which refers to Penaranda as Manuel’s
stepfather. The second is Lucy’s MySpace profile from May 2010,
which includes three photos of Penaranda with captions created by
Lucy that refer to him as her stepfather, and which also describes
Lucy in a way that suggests she was seeking a relationship—for
example, by noting her unhappy marital history and desire to avoid
any more broken hearts. Moreover, while Lucy at one point stated
that Penaranda and her mother fell in love only after she and
Penaranda divorced in 2012, she later disavowed that statement and
6 The IJ cited Section 1101(b)(6), rather than the appropriate authority
under Section 1101(f)(6), but this appears to be a mere scrivener’s error.

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testified that Penaranda’s relationship with her mother was obvious
to her as early as 2010. Considering this evidence, the IJ found that
Penaranda failed to meet his burden to prove that he did not give false
testimony with respect to when his relationship with Lucia began.
The IJ also found that Penaranda failed to rebut the charge that
he gave false testimony concerning the bona fides of his marriage to
Lucy. The IJ explained that the evidence relating to the first charge
“is directly tied to the second,” and that the inconsistency between
Penaranda’s and Lucy’s accounts of the beginning of Penaranda’s
relationship with Lucia was “‘particularly significant’ in determining
whether their marriage was bona fide.” Id. at 81 (quoting Matter of
Phillis, 15 I & N Dec. 385, 387 (BIA 1975)). Further, the IJ placed
substantial weight on Lucy’s December 2010 affidavit, in which she
stated that Penaranda and Lucia asked her to marry Penaranda so that
he could remain in the United States. The IJ stated that although Lucy
later recanted her 2010 affidavit in an unsworn statement to USCIS,
that “recantation is afflicted by a stark inconsistency.” Id. at 82.
Specifically, Lucy said that she had leveled the sham marriage claim
out of anger at Penaranda for taking her to rehab, but Lucy, Lucia,
and Penaranda all testified that she went to rehab in December 2011,
one year after she had made the claim. Moreover, the IJ noted that
Penaranda had not provided any documentary evidence of the bona
fides of his marriage to Lucy, such as income tax returns, bank
accounts, or photos of the wedding. For these reasons, among others,
the IJ found that Penaranda failed to meet his burden to prove that he

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did not give false testimony with respect to the bona fides of his
marriage to Lucy.
Based on these false testimony findings, the IJ determined that
Penaranda lacked the requisite good moral character under 8 U.S.C.
§ 1101(f)(6). Accordingly, the IJ concluded that Penaranda was
disqualified from obtaining cancellation of removal and denied his
application.
D. The BIA’s Order Affirming the Denial of Penaranda’s
Application
On appeal to the BIA, Penaranda argued that the IJ
misconstrued what constitutes false testimony and that the decision
to deny his application lacked a proper basis. He also argued that the
IJ applied the wrong legal standard in determining whether he gave
false testimony regarding the bona fides of his marriage to Lucy.
Rejecting these arguments in an order dated May 24, 2023, the BIA
“agree[d] with the Immigration Judge’s determination that the
respondent is not eligible for cancellation of removal because he failed
to establish good moral character.” CAR 3. The BIA concluded that
“[t]he Immigration Judge properly determined that the respondent’s
claim to good moral character is defeated by him giving false
testimony for the purpose of obtaining an immigration benefit.” Id.
Accordingly, the BIA dismissed Penaranda’s appeal.

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E. Penaranda’s Motion to Terminate or Remand His
Removal Proceedings
On July 18, 2023, Penaranda filed with the BIA a motion to
terminate or remand his removal proceedings. He argued, for the
first time, that his removal order was invalid because his notice to
appear failed to include the date and time of the initial hearing, in
violation of 8 U.S.C. § 1229(a), which sets forth the notice
requirements for removal proceedings.7 On October 16, 2024, the BIA
denied Penaranda’s motion. The BIA explained that it generally
considers an objection to a noncompliant notice to appear to be timely
if the objection is raised prior to the close of proceedings before the IJ,
which in this case was March 25, 2021, when the IJ denied
Penaranda’s application for cancellation of removal. Because
Penaranda failed to challenge the validity of the notice until more
than two years after the IJ proceedings ended, the BIA concluded that
Penaranda had forfeited the objection.
II. Discussion
A. Petition for Review of the BIA’s Order Denying
Penaranda’s Motion to Terminate or Remand His
Removal Proceedings
We first consider Penaranda’s 2024 petition. 8 U.S.C.
§ 1229(a)(1) provides that the government must provide a written
7 The notice listed both the date and time of the hearing as “[t]o be set.”
CAR 2063.

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“notice to appear” to any alien in removal proceedings specifying,
among other things, the “nature of the proceedings,” the “acts or
conduct alleged to be in violation of law,” and the “time and place at
which the proceedings will be held.” In Matter of Fernandes, the BIA
concluded that “the time and place requirement in [Section 1229(a)(1)]
is a [mandatory] claim-processing rule, not a jurisdictional
requirement.” 28 I. & N. Dec. 605, 608 (BIA 2022). Claim-processing
rules “seek to promote the orderly progress of litigation by requiring
that the parties take certain procedural steps at certain specified
times.” Henderson v. Shinseki, 562 U.S. 428, 435 (2011). The Supreme
Court has consistently recognized that a party can forfeit arguments
arising under a claim-processing rule. See, e.g., Santos-Zacaria v.
Garland, 598 U.S. 411, 417, 423 (2023) (holding that 8 U.S.C.
§ 1252(d)(1), “a quintessential claim-processing rule” governing
judicial review of final orders of removal, is “subject to waiver and
forfeiture”); Fort Bend County v. Davis, 587 U.S. 541, 549, (2019) (“[A]n
objection based on a mandatory claim-processing rule may be
forfeited if the party asserting the rule waits too long to raise the
point.” (internal quotation marks omitted)). In Matter of Nchifor, the
BIA applied these principles to conclude that the respondent—who,
like Penaranda, “raised an objection to the missing time or place
information in his notice to appear for the first time in a motion to
reopen” and terminate his removal proceedings—“waited too long to
raise this issue and forfeited his objection to this missing
information.” 28 I. & N. Dec. 585, 589 (BIA 2022) (internal quotation
marks omitted). Relying on Nchifor, the BIA held that Penaranda, too,

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had forfeited his objection to the notice to appear, and therefore
denied his motion.
This Court reviews the denial of a motion to reopen for abuse
of discretion, see Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005), and
reviews de novo questions of law decided by the IJ or the BIA, Boluk v.
Holder, 642 F.3d 297, 301 (2d Cir. 2011).
In petitioning for review of the BIA’s order, Penaranda
principally argues that following the Supreme Court’s decision in
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), this Court
need not defer to the BIA’s holding in Fernandes that the time-and-
place requirement in Section 1229(a)(1) is a non-jurisdictional, claim-
processing rule and thus is subject to waiver and forfeiture. In Loper
Bright, the Supreme Court held that “courts need not and under the
[Administrative Procedure Act] may not defer to an agency
interpretation of the law simply because a statute is ambiguous,”
thereby overruling Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). 603 U.S. at 412–13.
Penaranda’s reliance on Loper Bright is unavailing. While we
may not defer to the BIA’s classification of Section 1229(a)(1) as a non-
jurisdictional, claim-processing rule, we have already held that
omission of the time and place from a notice to appear does not
deprive an immigration judge of jurisdiction over removal
proceedings. As we explained in Banegas Gomez v. Barr, 922 F.3d 101,
110–12 (2d Cir. 2019), no “statutory glue bonds the Immigration
Court’s jurisdiction to § 1229(a)’s requirements.” Although we

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proceeded to explain why our statutory analysis was consistent with
both agency regulations and BIA precedent, in no way did our
interpretation of Section 1229(a) depend on these administrative
materials or rely on Chevron deference. And even if we had relied on
the agency’s interpretation of Section 1229(a), the Supreme Court
explained in Loper Bright that “[m]ere reliance on Chevron cannot
constitute a ‘special justification’ for overruling . . . a statutory
precedent.” 603 U.S. at 412. For the avoidance of all doubt: We
confirm that, based on our own independent analysis, we agree with
the BIA that Section 1229(a)(1) creates a mandatory but non-
jurisdictional, claim-processing rule that is subject to waiver and
forfeiture. 8 Section 1229(a)(1) is a typical example of a rule that
“speak[s] to a party’s procedural obligations.” Fort Bend County,
587 U.S. at 551 (alteration and internal quotation marks omitted);
cf. Henderson v. United States, 517 U.S. 654, 656 (1996) (holding that
8 In doing so, we join several of our sister circuits. See, e.g., Chavez-Chilel v.
Att’y Gen., 20 F.4th 138, 142–44 (3d Cir. 2021) (explaining that “Section 1229(a) is a
claims-processing rule” that “differ[s] from jurisdictional rules”); Martinez-Perez v.
Barr, 947 F.3d 1273, 1277–79 (10th Cir. 2020) (holding that Section 1229(a)(1)’s
“requirements relating to notices to appear are non-jurisdictional, claim-
processing rules”); Santos-Santos v. Barr, 917 F.3d 486, 490 (6th Cir. 2019) (“[T]he
INA . . . does not address jurisdictional prerequisites.”); Ortiz-Santiago v. Barr,
924 F.3d 956, 963 (7th Cir. 2019) (Section 1229(a)(1) “is not ‘jurisdictional’ in nature.
It is instead the agency’s version of a claim-processing rule, violations of which
can be forfeited if an objection is not raised in a timely manner.”); Karingithi v.
Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019) (“Section 1229 says nothing about the
Immigration Court’s jurisdiction.”); Perez-Sanchez v. Att’y Gen., 935 F.3d 1148,
1153–55 (11th Cir. 2019) (“We do not read section 1229’s time-and-place
requirement to create a jurisdictional rule”; it is “only a claim-processing rule.”).

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“the manner and timing of serving process are generally
nonjurisdictional matters”).9
Penaranda also argues that he could not have timely objected
to his allegedly defective notice to appear because Fernandes was
decided only after the close of the IJ proceedings. He suggests that
before the BIA decided Fernandes, he could not have known that
Section 1229(a)(1) was a mandatory rule on which he could base an
objection to his allegedly defective notice to appear, let alone that such
an objection could be waived or forfeited. We are not persuaded.
Penaranda did not need Fernandes to frame an argument that
his notice to appear was deficient, in violation of Section 1229(a)(1).
That provision has been on the books since 1997, and all Penaranda
had to do to raise this argument was to compare his notice to appear
to the statute itself. Somebody has to be the first one to raise a legal
argument, and it could just as easily have been Penaranda who did
9 To the extent that Penaranda challenges the BIA’s authority to deem such
an objection untimely when it is made for the first time after the close of
proceedings before the IJ, this argument lacks merit. Courts have recognized that
agencies “may prescribe and enforce reasonable procedural requirements” for
claim-processing rules. Union Pac. R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen
Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 85 n.9 (2009); see also Ortiz-
Santiago, 924 F.3d at 963 (acknowledging “an agency may adopt rules and
processes to maintain order”). The BIA acted well within its discretion by
imposing the agency equivalent of the “well-established general rule that an
appellate court will not consider an issue raised for the first time on appeal.” Green
v. Dep’t of Educ. of City of N.Y., 16 F.4th 1070, 1078 (2d Cir. 2021) (internal quotation
marks omitted). Because the BIA sits in appellate review of IJ decisions, it is
perfectly reasonable to require litigants to raise any arguments for the first time
before the IJ.

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so, instead of Fernandes. Put another way: A litigant can forfeit an
available argument even if it has not been previously raised or
recognized in another case.
Thus, it follows that a litigant can forfeit such an argument even
if it has not previously been held forfeitable in another case. Yes, the
BIA had no occasion until Fernandes to hold that a petitioner can
forfeit a Section 1229(a)(1) objection by failing to raise it before an IJ.
But Penaranda does not suggest that the BIA ever held to the
contrary—that the rule was jurisdictional—and then flip-flopped in
his case, such that he was sandbagged into thinking that he could
simply wait until after his IJ proceedings were done and raise it in the
first instance before the BIA. Indeed, the opposite is true: Two years
before Penaranda’s IJ proceedings ended, the BIA held that a notice
to appear that fails to specify the time or place of an initial hearing
does not deprive the IJ of jurisdiction, “so long as a notice of hearing
specifying this information is later sent to the alien.” Matter of
Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018); see also Banegas
Gomez, 922 F.3d at 110–11 (“Section 1229 in fact says nothing about
the Immigration Court’s jurisdiction.” (internal quotation marks
omitted)). The obvious implication of Section 1229(a)(1) not being a
jurisdictional rule is that it is subject to waiver or forfeiture. See, e.g.,
Eberhart v. United States, 546 U.S. 12, 18–19 (2005) (describing several
“nonjurisdictional” procedural rules as “claim-processing rules” that
may be forfeited); Kontrick v. Ryan, 540 U.S. 443, 456 (2004) (explaining
that “a critical difference between a rule governing subject-matter

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jurisdiction and an inflexible claim-processing rule” is that the
former, unlike the latter, cannot be forfeited).
In short, the BIA did not abuse its discretion by deeming
forfeited Penaranda’s untimely objection to the omission of a date and
time from his initial notice to appear, and therefore denying his
motion to terminate. Accordingly, Penaranda’s 2024 petition is
denied.
B. Petition for Review of the BIA’s Order Affirming the
Denial of Penaranda’s Application for Cancellation of
Removal
The threshold question with respect to Penaranda’s 2023
petition is whether this Court has jurisdiction to review the petition
under Wilkinson v. Garland, 601 U.S. 209 (2024). The answer is yes, but
only in part.
In general, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), federal courts
lack jurisdiction to review judgments pertaining to certain forms of
immigration relief, including cancellation of removal.
Notwithstanding that provision, Section 1252(a)(2)(D) authorizes
courts of appeals to review such decisions to the extent that they raise
constitutional claims or questions of law. This authority extends to
mixed questions of law and fact—that is, questions that involve “the
application of a legal standard to undisputed or established facts”—
even those that “require[] close engagement with the facts.”
Wilkinson, 601 U.S. at 217, 222. Mixed questions are “always
reviewable as questions of law,” id. at 218–19, although they are

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subject to more deferential review than pure questions of law, id. at
222. But as the Supreme Court recently reaffirmed, “questions of fact
underlying denials of discretionary relief are unreviewable under
both § 1252(a)(2)(B)(i) and § 1252(a)(2)(D).” Id. at 219.
In challenging the BIA’s judgment, Penaranda raises two
principal arguments relating to the findings that he gave false
testimony and that he did so for the purpose of obtaining an
immigration benefit (specifically, cancellation of removal), which led
the agency to conclude that he lacked good moral character within the
meaning of 8 U.S.C. § 1101(f)(6). First, while conceding that his
testimony contained certain errors and inconsistencies, Penaranda
contends that he did not make any misrepresentations with the
purpose of obtaining an immigration benefit, and that the agency
therefore erred in finding that he did. Second, he contends that the IJ
held him to an overly demanding standard of proof—clear and
convincing evidence, rather than a preponderance of the evidence—
to establish the truthfulness of his testimony regarding the bona fides
of his marriage to Lucy.10 In his view, the BIA erred in not correcting
the IJ’s application of the wrong standard of proof.
10 Penaranda also argues in passing that the proceedings before the
immigration judge were tainted by bias because the immigration judge and
Penaranda’s own lawyer engaged in “side comments” in which they
“disparage[d] Penaranda for marrying his former mother-in-law.” Pet.’s Br. 7–8
(Citations to “Pet.’s Br.” refer to Penaranda’s brief in No. 23-6584.). Because
Penaranda did not exhaust this argument by raising it before the BIA, this Court
may not review it in the first instance now. See 8 U.S.C. § 1252(d)(1); Y.C. v. Holder,
741 F.3d 324, 336 (2d Cir. 2013) (The “issue exhaustion requirement is
mandatory.”).

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The gravamen of Penaranda’s first argument is that the agency
made erroneous factual findings. Because this Court lacks
jurisdiction to review factual questions, the petition is dismissed as to
that issue. And although Penaranda’s second argument raises a
question of law, it misconstrues the IJ’s decision and is therefore
meritless. Accordingly, on this latter issue, the petition for review is
denied.
1. Penaranda’s Challenge to the Agency’s Factual
Findings That He Gave False Testimony And That
He Did So for the Purpose of Obtaining an
Immigration Benefit
In his opening brief, Penaranda devotes considerable space to
arguing why, in his view, the IJ and BIA erred in finding (1) that he
gave false testimony before the IJ about both when his relationship
with Lucia began and the bona fides of his marriage to Lucy, and
(2) that he did so for the purpose of obtaining the immigration benefit
of cancellation of removal. For instance, Penaranda argues that he
“wasn’t misrepresenting [the] facts to gain an immigration benefit.
He was nervous, afraid and embarrassed.” Pet.’s Br. 17. In the pages
that follow, he marches through select parts of his testimony before
the IJ and attempts to explain how his statements show that he was
“tense and nervous” but evince no “deliberate attempt to lie.” Id. at
18, 20. This line of argument raises questions of fact underlying the
agency’s judgment to deny Penaranda’s application for cancellation
of removal, and this Court therefore lacks jurisdiction to review this
argument.

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The Supreme Court has held that “[f]ederal courts lack
jurisdiction to review facts found as part of discretionary-relief
proceedings under . . . [the] provisions enumerated in [8 U.S.C.]
§ 1252(a)(2)(B)(i).” Patel v. Garland, 596 U.S. 328, 347 (2022). Among
those enumerated provisions is Section 1229b, which governs
cancellation of removal. It follows that findings of fact underlying
judgments regarding applications for cancellation of removal are
unreviewable. See Wilkinson, 601 U.S. at 222 (recognizing that
“a court is . . . without jurisdiction to review a factual question raised
in an application for discretionary relief”). In Kungys v. United States,
the Court explained that under Section 1101(f)(6), the question of
“whether in making the misrepresentations [a petitioner] possessed
the subjective intent of thereby obtaining immigration or
naturalization benefits” is a “question of fact . . . [that] must be
resolved by the trier of fact.” 485 U.S. 759, 782 (1988).
Penaranda’s petition raises precisely such questions here.
Specifically, he argues that the BIA “ignored” the principle, set forth
in Kungys, that an applicant who gives false testimony lacks good
moral character under Section 1101(f)(6) only if the statement was
made with the subjective intent of obtaining immigration or
naturalization benefits. Pet.’s Br. 31–34. In Penaranda’s view, the IJ
erroneously declined to consider the possibility that Penaranda’s
testimonial deficiencies were the result of embarrassment, fear, or a
desire for privacy, rather than a deliberate attempt to lie (in other
words, that his subjective motivation for any false testimony was
something other than a desire to obtain cancellation of removal); and

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the “BIA swept this [error] aside.” Id. at 32–33. These are debates
about Penaranda’s mental state at the time of his testimony. Whether
and why a petitioner testified falsely are questions of fact. When a
petitioner challenges the agency’s denial of his application for
cancellation of removal, this Court has no jurisdiction to review such
matters. Accordingly, Penaranda’s petition is dismissed insofar as it
challenges the agency’s findings that he gave false testimony and that
he did so for the purpose of obtaining an immigration benefit.
A reviewing court’s assessment under Section 1252(a)(2)(D)
must have some teeth. The court “need[s] to study the arguments
asserted” and “determine, regardless of the rhetoric employed in the
petition, whether [they] merely quarrel[] over the correctness of the
factual findings or justification for the discretionary choices, in which
case the court would lack jurisdiction.” Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 329 (2d Cir. 2006). Put differently, in order to
invoke a reviewing court’s jurisdiction, a petitioner must raise a
colorable question of law. See Barco-Sandoval v. Gonzales, 516 F.3d 35,
40 (2d Cir. 2007) (“[W]e lack jurisdiction to review any legal argument
that is so insubstantial and frivolous as to be inadequate to invoke
federal-question jurisdiction.” (citing Arbaugh v. Y & H Corp., 546 U.S.
500, 513 n.10 (2006))); Avendano–Espejo v. Dep’t of Homeland Sec.,
448 F.3d 503, 505 (2d Cir. 2006) (dismissing petition because petitioner
“failed to raise any colorable ‘constitutional claims or questions of
law’ sufficient to invoke our jurisdiction under . . . 8 U.S.C.
§ 1252(a)(2)(D)”). Simply labeling an argument a “question of law”
does not make it so.

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Penaranda’s argument, while framed as a challenge to the
agency’s application of Kungys, does not raise a colorable question of
law; all it does, in substance, is challenge the agency’s finding about
why Penaranda lied during his testimony. That is squarely a factual
determination. An agency cannot be said to have erred as a matter of
law by reaching one factual conclusion rather than another. Thus, the
jurisdictional bar under Section 1252(a)(2)(B)(i) applies to this
argument with equal force.
The same goes for Penaranda’s arguments regarding the IJ’s
assessment of the evidence (and the BIA’s review). Penaranda
contends, among other things, that the IJ gave undue probative
weight to the police report concerning his July 2009 arrest for
assaulting Manuel while discounting certain other evidence that is
purportedly favorable for him. He also contends that the BIA’s
decision to affirm the IJ’s allegedly faulty factual findings
demonstrates a lack of “reasoned consideration.” Pet.’s Br. 48. A
challenge to the agency’s weighing of the evidence, or the logic it
employed in drawing inferences from it, no less than a challenge to
the factual findings that result from such analysis, raises questions of
fact; we therefore lack jurisdiction to review Penaranda’s arguments
on these points as well.11 See Boluk, 642 F.3d at 304 (explaining that
11 Penaranda also asserts that the IJ “selectively” considered the evidence
“he wished to believe, and chose not to credit evidence to the contrary.” Pet.’s
Br. 31. This Court held in Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009)—and
reaffirmed in subsequent cases—that the BIA has committed “an error of law”
when it has “totally overlooked” or “seriously mischaracterized” certain evidence.
But the record is abundantly clear that neither the IJ nor the BIA committed any
such error here.

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reviewing court does “not ‘reevaluate the relative strength of the
evidence’ presented to the immigration judge” (citation omitted));
cf. Contreras-Salinas v. Holder, 585 F.3d 710, 714 (2d Cir. 2009)
(observing that Ҥ 1252(a)(2)(B)(ii) precludes court review of
petitions” that are “directed at the Attorney General’s credibility
determinations and the weight he gave to the evidence that he
credited” (internal citations omitted) (quoting Cho v. Gonzales,
404 F.3d 96, 101 (1st Cir. 2005))).
2. Penaranda’s Challenge to the Legal Standards
Applied by the IJ
Penaranda next argues that the IJ applied the wrong legal
standard when considering whether Penaranda had falsely testified
about the bona fides of his marriage to Lucy. The IJ stated that
because Penaranda was in removal proceedings when he married
Lucy, their marriage carried a presumption of fraudulence that could
be rebutted only with “clear and convincing evidence” that they did
not marry for the purpose of obtaining his admission as an
immigrant. Pet.’s Br. 34–35 (quoting CAR 84). Penaranda suggests
that while that framework was applicable for Lucy’s I-130 petition on
his behalf (which was initially granted but later revoked), it had no
bearing on his current application for cancellation of removal. See id.
at 34. He contends that, for present purposes, his burden was limited
to showing by a mere preponderance of the evidence that he had not
“falsely testif[ied]” about the bona fides of his marriage to Lucy. Id.
Thus, he argues, the IJ “impermissibly heightened the standard of
proof” by requiring clear and convincing evidence, which “tainted

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[the] weighing of the evidence,” and the BIA failed to correct this
error. Id. at 34–35.
This argument raises a reviewable question of law. See Xiao Ji
Chen, 471 F.3d at 329 (argument that a discretionary decision is “an
abuse of discretion because it was made . . . based on a legally
erroneous standard” may raise a question of law under 8 U.S.C.
§ 1252(a)(2)(D)). But even assuming arguendo that Penaranda is
correct that the proper standard of proof was only a preponderance
of the evidence, there is no basis in the record for concluding that the
IJ held him to a higher standard. His argument to the contrary is
based on a misreading of the IJ’s opinion.
At no point did the IJ state that Penaranda was required to
satisfy his burden of proof by clear and convincing evidence. The IJ
was considering two related but distinct questions: (1) whether
Penaranda had met his burden to establish that he had the good moral
character required by 8 U.S.C. § 1229b(b)(1)(B), and, subsidiary to that
general inquiry, (2) whether Penaranda had met his burden to show
that he had not testified falsely for the purpose of obtaining an
immigration benefit when he denied that his marriage to Lucy was a
sham. The IJ correctly stated that Penaranda bore the burden of proof
to establish his eligibility for cancellation of removal, including as to
the good moral character factor. When discussing the legal standards
governing Penaranda’s application as a whole, the IJ listed the four
criteria for cancellation of removal under Section 1229b(b)(1) and
correctly stated that “[t]he applicant bears the burden to prove that
he is statutorily eligible and merits a favorable exercise of discretion.”

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CAR 76 (citing 8 U.S.C. § 1229a(c)(4)(A) (placing the burden of proof
on the applicant for relief from removal) and 8 C.F.R. § 1240.8(d)
(same)).12 And with respect to the good moral character factor in
particular, the IJ likewise stated that “Respondent bears the burden of
demonstrating that he has been a person of good moral character for
a continuous period of at least ten years preceding the date of his
application.” Id. at 77 (citing 8 U.S.C. §§ 1229a(c)(4) and 1229b(b)(1)).
All of that was correct, and Penaranda does not contend otherwise.
Penaranda points to places where the IJ referred to the clear-
and-convincing standard, but the IJ was not talking about
Penaranda’s own burden of proof. Instead, the IJ noted that, when
Lucy submitted her I-130 petition on Penaranda’s behalf, she had to
establish the bona fides of their marriage by clear and convincing
evidence to overcome the presumption that a marriage is fraudulent
if it occurs while removal proceedings are pending. Id. at 84 (citing
8 U.S.C. §§ 1154(g), 1255(e)(2)–(3)). Given that Lucy must have
provided evidence to satisfy that higher burden when USCIS granted
her I-130 (before it was later revoked in light of her recantation), the
12 8 U.S.C. § 1229a(c)(4)(A) provides that:
An alien applying for relief or protection from removal has the
burden of proof to establish that [he] . . . satisfies the applicable
eligibility requirements; and . . . with respect to any form of relief
that is granted in the exercise of discretion, that the alien merits a
favorable exercise of discretion.
Similarly, 8 C.F.R. § 1240.8(d) provides that “[t]he respondent shall have the
burden of establishing that he or she is eligible for any requested benefit or
privilege and that it should be granted in the exercise of discretion.”

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IJ inferred that Penaranda should have had ample evidence at his
disposal to establish the bona fides of that same marriage now.
Contrary to that reasonable expectation, Penaranda did “not
provide[] any documentary evidence, with one minor exception, to
show that his marriage to Lucy was bona fide.”13 Id. In other words,
the IJ was highlighting how surprising it was that Penaranda could
not come up with any meaningful evidence to back up his marriage
to Lucy—in stark contrast with the abundance of documentary
evidence he produced to support his later marriage to her mother. In
any event, the IJ did not mention the clear-and-convincing standard
with respect to the other false testimony finding—namely, when
Penaranda and Lucia began their relationship; that finding alone
dictated the conclusion, pursuant to 8 U.S.C. § 1101(f)(6), that
Penaranda lacked good moral character and thus rendered him
ineligible for cancellation of removal. Accordingly, the petition is
denied as to this argument.
III. Conclusion
In summary, we hold:
1. The requirement that a notice to appear specify the time and
place of an initial removal hearing, set forth in 8 U.S.C. § 1229(a)(1), is
13 The one piece of documentary evidence was Penaranda’s 2012 tax return,
which listed Lucy as a dependent, but not as his spouse.

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a non-jurisdictional, claim-processing rule subject to waiver and
forfeiture.
2. The BIA did not abuse its discretion in denying Penaranda’s
motion to terminate, based on its conclusion that Penaranda forfeited
his objection under 8 U.S.C. § 1229(a)(1) by failing to raise it before the
conclusion of the IJ proceedings.
3. We lack jurisdiction to review the agency’s denial of
cancellation of removal under 8 U.S.C. § 1252(a)(2)(B), to the extent
that Penaranda contests the IJ’s determination that he gave false
testimony for the purpose of obtaining an immigration benefit,
because that is an unreviewable question of fact.
4. We have jurisdiction to review the agency’s denial of
cancellation of removal under 8 U.S.C. § 1252(a)(2)(D), to the extent
that Penaranda contests the standard of proof applied by the IJ,
because that raises a question of law. But even assuming arguendo
that Penaranda had to establish his eligibility for relief only by a
preponderance of the evidence, the record does not support his claim
that the IJ held him to the higher standard of clear and convincing
evidence.
For the foregoing reasons, Penaranda’s 2024 petition is
DENIED, and his 2023 petition is DISMISSED in part and DENIED in
part.

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