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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14393
Non-Argument Calendar
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Agency No. A097-959-133
LINA ASTRID ALVAREZ PEMBERTHY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 4, 2019)
Before MARCUS, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Lina Astrid Alvarez Pemberthy (“Petitioner”), a native and citizen of
Colombia, petitions for review of the Board of Immigration Appeal’s (“BIA’s”)
final order denying Petitioner’s motion to reopen and to terminate her removal
proceedings. Briefly stated, Petitioner contends that her defective notice-to-appear
(“NTA”) deprived the Immigration Judge (“IJ”) and the BIA of subject-matter
jurisdiction over her removal proceedings. No reversible error has been shown; we
deny the petition in part and dismiss it in part.
In 2004, the Immigration and Naturalization Service issued Petitioner an
NTA charging her as removable for being an alien without a valid entry or travel
document and for having attempted to enter the United States with a fraudulent
visa. The NTA ordered Petitioner to appear before an IJ in Pompano Beach,
Florida, at a date and time “to be determined.” Petitioner was later notified in
writing of the time and date of her scheduled removal hearings and attended those
hearings with her lawyer.
At her initial hearing, Petitioner testified that her NTA had been served
properly, admitted the allegations in the NTA, and conceded removability.
Petitioner said, however, that she intended to apply for asylum and for withholding
of removal.
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Following a merits hearing on Petitioner’s application for relief, the IJ
denied Petitioner asylum, withholding of removal, and relief under the United
Nations Convention Against Torture. The IJ then ordered Petitioner removed to
Colombia. The BIA dismissed Petitioner’s appeal on 12 September 2007.
Petitioner remained in the United States.
Over a decade later, Petitioner moved to reopen and to terminate her
removal proceedings in the light of the Supreme Court’s decision in Pereira v.
Sessions, 138 S. Ct. 2105 (2018). Because Petitioner’s NTA failed to specify the
date and time of her hearing, Petitioner argued that the NTA failed to vest the IJ or
the BIA with jurisdiction over her removal proceedings. About timeliness,
Petitioner asserted that Pereira constituted an extraordinary circumstance that
warranted equitable tolling of the 90-day time limit applicable to motions to
reopen. In the alternative, Petitioner also asked the BIA to exercise its sua sponte
authority to reopen her case based upon Pereira.
The BIA denied Petitioner’s motion. The BIA explained that -- even if it
deemed Petitioner’s motion as timely filed -- Petitioner was unentitled to relief
because she had conceded the allegations in the NTA and was found removable as
charged. The BIA also determined that Petitioner’s argument was foreclosed by
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the BIA’s decision in Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018).
The BIA declined to exercise its sua sponte authority to reopen the proceedings.
While Petitioner’s petition was pending in this Court, we issued our decision
in Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 2019 U.S. App. LEXIS 24907
(11th Cir. Aug. 21, 2019). Like the Petitioner here, Perez-Sanchez argued --
relying on Pereira -- that the IJ lacked jurisdiction over Perez-Sanchez’s removal
proceedings because his NTA failed to include the time or date of his removal
hearing, in accordance with 8 U.S.C. § 1229(a)(1) and 8 C.F.R. § 1003.14(a).
Perez-Sanchez, 2019 U.S. App. LEXIS 24907, at *2. We rejected this argument.
We concluded that the requirement that the NTA specify the time and date of a
removal hearing constituted a claim-processing rule: not a jurisdictional rule. Id. at
*14-15. Thus, even though Perez-Sanchez’s NTA was defective under 8 U.S.C.
§ 1229(a)(1) and 8 C.F.R. § 1003.14(a), the defect did not deprive the IJ or the BIA
of jurisdiction over the removal proceedings. Id. at *2, 19-20.
No material difference exists between the circumstances involved in
Petitioner’s case and the circumstances involved in Perez-Sanchez. Petitioner’s
jurisdictional argument is thus foreclosed by our binding precedent. We deny that
part of the petition.
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Petitioner also seeks to challenge the BIA’s refusal to sua sponte reopen her
removal proceedings based on Pereira. We have said, however, that we lack
jurisdiction to review the BIA’s decision about whether to exercise its sua sponte
authority to reopen or to reconsider a case. See Lenis v. U.S. Att’y Gen., 525 F.3d
1291, 1293-94 (11th Cir. 2008). Accordingly, we dismiss Petitioner’s petition on
this issue for lack of jurisdiction.
PETITION DENIED IN PART AND DISMISSED IN PART.
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