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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11777
Non-Argument Calendar
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Agency No. A095-075-256
BLANCA L. RAMOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 13, 2020)
Before BRANCH, TJOFLAT, and, FAY, Circuit Judges.
PER CURIAM:
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Blanca Ramos, a native and citizen of Honduras, petitions us to review an
order from the Board of Immigration Appeals (“BIA”) denying her motion to
reopen and terminate her removal proceedings. The Department of Homeland
Security (“DHS”) issued Ramos’s notice to appear (“NTA”) in 2009, alleging that
she was subject to removal under Immigration and Naturalization Act (“INA”)
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Ramos’s NTA did not include the time
and date of her removal proceedings. Ramos now argues that the immigration
judge (“IJ”) lacked jurisdiction over her removal proceedings based on the
Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018).
We review our subject matter jurisdiction de novo. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). We lack
jurisdiction to consider a claim raised in a petition for review “unless the petitioner
has exhausted [her] administrative remedies with respect thereto.” Id.; see also
INA § 242(d)(1), 8 U.S.C. § 1252(d)(1) (“A court may review a final order of
removal only if . . . the alien has exhausted all administrative remedies available to
the alien as of right . . . .”).
The INA provides that an IJ shall conduct proceedings to determine whether
an alien is removable from the United States. INA § 240(a)(1), 8 U.S.C.
§ 1229a(a)(1). The statute does not explicitly state the conditions upon which
jurisdiction vests with the IJ, but the Justice Department’s regulations provide that
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“[j]urisdiction vests . . . when a charging document is filed with the Immigration
Court.” 8 C.F.R. § 1003.14(a). For proceedings begun after April 1, 1997, a
“charging document” includes an NTA. Id. § 1003.13. The regulations provide
that an NTA must contain certain information, including the nature of the
proceedings and the charges against the alien. The time and date of the hearing,
however, are not required. Id. § 1003.15. Instead, the regulations state that the
NTA shall provide the location, time, and date of the initial removal hearing
“where practicable,” and that, if the NTA omits that information, the IJ must
provide notice of that information to the parties. Id. § 1003.18(b).
In Pereira, the Supreme Court considered a question “at the intersection of”
§ 1229(a), regarding the contents of an NTA, and the “stop-time” rule for
cancellation of removal in 8 U.S.C. § 1229b(d)(1). Pereira, 138 S. Ct. at 2109–10.
To be eligible for cancellation of removal, an alien must be continuously
physically present in the United States for a certain length of time, and the stop-
time rule states that the period of continuous physical presence stops, in certain
circumstances, “when the alien is served a notice to appear under section 1229(a).”
INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1). The Supreme Court in Pereira
concluded that a putative NTA that does not specify the time or place of the
removal proceedings does not trigger the stop-time rule and thus does not end the
alien’s continuous physical presence in the United States for purposes of
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cancellation of removal eligibility. Pereira, 138 S. Ct. at 2110. The Supreme
Court reasoned that a “putative notice to appear that fails to designate the specific
time or place of the noncitizen’s removal 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)).
Although the Supreme Court in Pereira stated that it was deciding only a
“narrow question” about an eligibility requirement for cancellation of removal, id.
at 2110, it also acknowledged that the NTA flaw present in the case—the failure to
specify the time or place of the removal hearing—was present in nearly every NTA
that had been issued in recent years, id. at 2111. Consequently, Pereira gave rise
to a raft of claims by aliens asserting that their removal proceedings were void
because they were purportedly commenced by a “putative notice to appear” that
was “not a notice to appear under section 1229(a).” Id. at 2113–14 (quotation
marks omitted).
In Perez-Sanchez v. U.S. Att’y Gen., we addressed a petitioner’s Pereira
claim that the IJ “never had jurisdiction over his removal case” because the NTA
“did not include either the time or date of his removal hearing.” 935 F.3d 1148,
1150 (11th Cir. 2019). As an initial matter, we concluded that we had jurisdiction
to review Perez-Sanchez’s Pereira claim, even though he did not raise it first
before the BIA. Id. at 1153. We explained that we “always have jurisdiction to
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determine our own jurisdiction,” and because our jurisdiction to review removal
proceedings extends only to final orders of removal, we necessarily had to
determine whether there was a valid final order of removal granting us jurisdiction.
Id. Thus, Perez-Sanchez’s failure to exhaust the claim before the agency did not
deprive us of jurisdiction. Id.
Turning to the merits, we first determined that the NTA was
“unquestionably deficient” under § 1229(a) for failing to specify the time and date.
Id. We rejected the government’s argument that we should defer to the BIA’s
interpretation in Matter of Bermudez-Cota that an NTA that omits the time and
date of the hearing is not deficient under § 1229(a) so long as a notice of hearing
containing such information is sent later. Id. at 1153–54. We reasoned that
Pereira foreclosed any argument that a statutory defect in an NTA could be later
cured by a subsequent notice of hearing including the time and date. Id. at 1154.
We stated that “a notice of hearing sent later might be relevant to a harmlessness
inquiry, but it does not render the original NTA non-deficient.” Id.
Nonetheless, we concluded in Perez-Sanchez that the defective NTA did not
deprive the agency of jurisdiction over the removal proceedings because the
statutory “time-and-place requirement” did not “create a jurisdictional rule,” but
was instead a “claim-processing rule.” Id. at 1154–55. Similarly, we concluded
that 8 C.F.R. § 1003.14, “despite its language, sets forth not a jurisdictional rule
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but a claim-processing one,” reasoning that “an agency cannot fashion a procedural
rule to limit jurisdiction bestowed upon it by Congress.” Id. at 1155. Having
determined that the agency properly exercised jurisdiction over Perez-Sanchez’s
removal proceedings, we denied his petition for review as to his Pereira claim. Id.
at 1157. Finally, to the extent Perez-Sanchez claimed he was entitled to a remand
because the NTA otherwise violated the agency’s claim-processing rules, we
dismissed the petition for lack of jurisdiction because the claim was unexhausted.
Id.
Here, Ramos’s claim that the IJ lacked jurisdiction over her removal
proceedings is foreclosed by our decision in Perez-Sanchez. While her NTA was
defective for failing to specify the time and date of her removal hearing, neither
§ 1229(a) nor § 1003.14 are jurisdictional rules, and the IJ therefore properly
exercised jurisdiction over her proceedings. Ramos has not raised a claim-
processing claim before the BIA or this Court. Accordingly, we deny her petition
to reopen and terminate her removal proceedings.
PETITION DENIED.
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