FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 3, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
HENRY JAVIER CRUZ MORENO,
Petitioner,
v. No. 19-9507
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Henry Javier Cruz Moreno seeks review of a final order of removal, claiming
that under Pereira v. Sessions, 138 S. Ct. 2105 (2018), the immigration judge (IJ)
lacked jurisdiction to conduct removal proceedings. We deny the petition for review.
I
Moreno is a Honduran national who entered the United States in 2004. In
2018, the Department of Homeland Security (DHS) issued him a Notice to Appear
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(NTA) in removal proceedings, charging him with being present in this country
without lawful admission or parole. See 8 U.S.C. § 1182(a)(6)(A)(i). The NTA did
not specify the date or time of his initial hearing, but DHS later provided the omitted
information by serving him a Notice of Hearing. When Moreno appeared before the
IJ, he conceded he was removable and requested voluntary departure, though he
quickly acknowledged he was ineligible for that relief. Thus, he simply requested a
removal order and indicated he waived his right to appeal. The IJ accordingly
ordered him removed to Honduras.
Following the IJ’s decision, however, Moreno filed a notice of appeal with the
Board of Immigration Appeals (BIA). In his notice he asserted that, under Pereira,
“the [IJ] had no jurisdiction to enter orders against [him] due to a defective Notice to
Appear.” Admin. R. at 7. He also indicated he would file a brief with the BIA,
though he never did. Consequently, when the BIA took up his case, it ruled that he
waived his right to appeal. The BIA nonetheless proceeded to consider and reject
Moreno’s assertion that the IJ lacked jurisdiction under Pereira, ruling:
[T]he Supreme Court described the dispositive question presented in
Pereira as “narrow” and related to whether the “stop-time” rule that is
applicable to cancellation of removal applications would be triggered by
a[n] NTA that lacked specific information about the time and location of
the hearing. Pereira did not hold that a[n] NTA that did not contain a
specific date, time, and location of the hearing was invalid for all
purposes or did not validly initiate removal proceedings. See Matter of
Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018).
Admin. R. at 3. The BIA therefore dismissed the appeal, and Moreno subsequently
sought review in this court.
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II
Ordinarily, we will consider only those arguments that a petitioner properly
presents to the BIA. Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007).
Indeed, “neglecting to take an appeal to the BIA constitutes a failure to exhaust
administrative remedies as to any issue that could have been raised, negating the
jurisdiction necessary for subsequent judicial review.” Id. (internal quotation marks
omitted). However, when the BIA independently reaches out and decides an issue in
a substantive discussion, it may sua sponte exhaust that issue for purposes of judicial
review. See id. at 1119-22. “To qualify for [the sua sponte exhaustion rule], the BIA
must: (1) clearly identify a claim, issue, or argument not presented by the petitioner;
(2) exercise its discretion to entertain that matter; and (3) explicitly decide that matter
in a full explanatory opinion or substantive discussion.” Garcia-Carbajal v. Holder,
625 F.3d 1233, 1235 (10th Cir. 2010).
Here, regardless of whether Moreno waived his right to appeal, the BIA
considered and rejected his jurisdictional argument in a full substantive discussion,
thereby satisfying all three elements of the sua sponte exhaustion rule. First, the BIA
clearly identified Moreno’s argument “that in light of Pereira v. Sessions, 138 S. Ct.
2105 (2018), the [IJ] lacked jurisdiction over the removal proceedings because the
[NTA] lacked a date and time of the initial hearing.” Admin. R. at 3. Second, the
BIA exercised its discretion to take up that issue. See id. And third, the BIA rejected
the argument in a substantive discussion by distinguishing Pereira, describing the
relevant issue in that case as “narrow,” and concluding that Pereira did not hold a
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defective NTA was invalid for all purposes or could not initiate removal proceedings.
Id. (internal quotation marks omitted). While the BIA’s analysis was succinct, it
definitively decided the issue citing relevant authority, and, in any event, we “defer
to the agency’s determination of the depth of explanation merited by a given
question,” Garcia-Carbajal, 625 F.3d at 1240. Thus, the BIA sua sponte exhausted
Moreno’s jurisdictional argument.1
Nonetheless, the argument is unavailing. We recently rejected a similar
argument in Lopez-Munoz v. Barr, 941 F.3d 1013 (10th Cir. 2019), explaining that
Pereira did not hold that a defective NTA divested an IJ of jurisdiction:
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.
Lopez-Munoz, 941 F.3d at 1018. We therefore joined other “circuits in declining to
read Pereira as an implicit pronouncement on an immigration judge’s jurisdiction”
and concluded that an NTA’s failure to specify the date and time of a hearing is not a
1
In this court, Moreno expands upon the general jurisdictional argument he
raised in his notice of appeal to the BIA, adding new regulatory and statutory theories
and challenging other circuit courts’ case law. None of these theories were presented
in his notice of appeal to the BIA, however, nor were they discussed by the BIA. We
decline to evaluate these novel theories and restrict the scope of our review to the
specific argument he originally offered under Pereira. See Garcia-Carbajal,
625 F.3d at 1237 (“To satisfy [the statutory exhaustion requirement], an alien must
present the same specific legal theory to the BIA before he or she may advance it in
court.”).
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jurisdictional defect. Id.; see also Martinez-Perez v. Barr, ___ F.3d ___,
No. 18-9573, 2020 WL 253553, at *3 (10th Cir. Jan. 17, 2020) (following “the lead
of Lopez-Munoz and join[ing] the overwhelming chorus of our sister circuits that
have already rejected similar Pereira-based challenges” (internal quotation marks
omitted)). Given this precedent, Moreno’s challenge to the IJ’s jurisdiction fails.
III
Accordingly, we deny the petition for review.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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