Hector Palos-Ponce v. MERRICK B. GARLAND, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 24, 2022*
Decided November 2, 2022
Before
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1354
HECTOR PALOS-PONCE,
Petitioner,
v.
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A200-557-916
O R D E R
Hector Palos-Ponce, a Mexican citizen, received a Notice to Appear in removal
proceedings for being present in the United States without authorization. More than
seven years later—and after Palos-Ponce had appeared at several hearings before an
Immigration Judge and conceded his removability—he moved to terminate proceedings
* We previously granted petitioner’s motion to waive oral argument because the
briefs and record adequately present the facts and legal arguments, and oral argument
would not significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 3 --

No. 22-1354 Page 2
for lack of jurisdiction because his Notice to Appear failed to specify the time and date
of his initial hearing. The Immigration Judge denied the motion and the Board of
Immigration Appeals affirmed. We now deny Palos-Ponce’s petition for review.
Palos-Ponce entered the United States without authorization in 2005. In January
2011, the Department of Homeland Security issued Palos-Ponce a Notice to Appear
charging him with removability for being present in the United States without being
admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). The Notice to Appear provided the
location of Palos-Ponce’s initial hearing but failed to specify the time or date as required
under 8 U.S.C. § 1229(a)(1)(G)(i). Instead, it ordered Palos-Ponce to appear before an
Immigration Judge “on a date to be set” and “at a time to be set.” In an August 2011
letter, the Immigration Court notified Palos-Ponce that his hearing had been scheduled
for 9 am on October 30, 2012. Palos-Ponce, proceeding pro se, appeared for that hearing
and subsequent hearings in 2013 and 2017. At the 2013 hearing, Palos-Ponce admitted
the allegations against him and conceded the charge of removability. He did not object
to the lack of time and date in the Notice to Appear at any of the three hearings. Palos-
Ponce retained counsel in early 2018 and appeared before the Immigration Court again
in March 2018; he did not object to the Notice to Appear at that hearing either. The
Immigration Judge set Palos-Ponce’s next hearing for August 28, 2018. The day of that
hearing—and over seven years after receiving his initial Notice to Appear—Palos-Ponce
filed a motion to terminate his removal proceedings for lack of jurisdiction. The
Immigration Judge denied the motion but granted Palos-Ponce a 60-day voluntary
departure period, conditioned upon the posting of a bond. The Board affirmed the
Immigration Judge’s ruling regarding termination and refused to reinstate Palos-
Ponce’s voluntary departure period because he failed to submit timely proof that he
had paid the required bond.
Palos-Ponce contends that because his Notice to Appear did not comply with the
requirements of § 1229(a)(1)(G)(i), the Immigration Court lacked jurisdiction over his
removal proceedings. He relies on Pereira v. Sessions, which held that a Notice to Appear
that lacks specific time and place information does not trigger the statutory stop-time
rule used to track a noncitizen’s continuous presence in the United States. 138 S. Ct.
2105, 2110 (2018). In Ortiz-Santiago v. Barr, however, we held that “an Immigration
Court’s jurisdiction is secure despite the omission in a Notice of time-and-place
information[,]” and “nothing in Pereira requires a different result.” 924 F.3d 956, 958 (7th
Cir. 2019) (cleaned up). Instead, the statutory notice requirements are “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.” Id. “Relief will be available,” we held, “for those who
make timely objections, as well as those whose timing is excusable and who can show

-- 2 of 3 --

No. 22-1354 Page 3
prejudice.” Id. at 965. Palos-Ponce also argues that Niz-Chavez v. Garland—which held
that to trigger the stop-time rule, the government must provide a noncitizen “with a
single compliant document explaining what it intends to do and when”—supports his
jurisdictional argument. 141 S. Ct. 1474, 1485 (2021). But “[n]othing the Supreme Court
said in Niz-Chavez … undermines” our holding in Ortiz-Santiago. Arreola-Ochoa v.
Garland, 34 F.4th 603, 607 (7th Cir. 2022). Accordingly, the Immigration Court had
jurisdiction despite the omission of a time and date in Palos-Ponce’s Notice to Appear.
Palos-Ponce is entitled to relief only if: (1) he can show that he objected to the
Notice to Appear within a reasonable time, or (2) if not timely, he provides an excuse
for the delay and shows prejudice from the lack of specific information about the time
of his initial hearing. See id. at 607–08. Palos-Ponce has failed to make either showing.
First, he did not timely object to his Notice to Appear. Palos-Ponce failed to object for
over seven years despite repeatedly appearing before the Immigration Court and
conceding his removability. Under any measure, his objection on the day of his August
2018 hearing was untimely. See id. at 609 (objection to Notice untimely when first raised
three years after petitioner received it, and three days before the merits hearing on
removal). Palos-Ponce does not attempt to satisfy the second path to relief—he provides
no excuse for his delay and does not contend that he suffered any prejudice from the
deficient Notice. As such, the error in the Notice to Appear does not justify setting aside
Palos-Ponce’s removal proceedings.
Finally, Palos-Ponce contends that he did not forfeit his grant of voluntary
departure because “he can show proof of bond payment.” But he has provided no proof
of payment, and in any event, his ability to show such proof now is irrelevant. Under
the applicable regulation, Palos-Ponce was required to submit proof of bond payment
to the Board within 30 days of filing his appeal. See 8 C.F.R. § 1240.26(c)(3)(ii). Because
nothing in the record indicates that Palos-Ponce submitted timely proof of payment, we
have no basis to disturb the Board’s decision with respect to voluntary departure.
For these reasons, we DENY Palos-Ponce’s petition for review.

-- 3 of 3 --