Case: 17-60580 Document: 00515326724 Page: 1 Date Filed: 02/28/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60580
FILED
February 28, 2020
Lyle W. Cayce
DENIS NOE MEJIA, Clerk
Petitioner,
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent.
Petitions for Review of the Order of the
Board of Immigration Appeals
Before HAYNES and OLDHAM, Circuit Judges, and HANEN,* District Judge.
ANDREW S. OLDHAM, Circuit Judge:
Petitioner Denis Noe Mejia, a Honduran citizen, entered the country
unlawfully in February 2006. Also in 2006, the Government ordered him
removed in absentia. There is no dispute Mejia received that removal order.
But rather than challenge the order in 2006, Mejia waited ten years to file a
motion to reopen. The Board of Immigration Appeals (“BIA”) denied relief,
finding his delay inexcusable. We agree.
* District Judge of the Southern District of Texas, sitting by designation.
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I.
A.
In June 2006, Mejia was personally served with a notice to appear
(“NTA”). The NTA explained there would be a hearing to determine his
removability, but it did not set a place or time for the hearing. That August,
the Government mailed Mejia a notice of hearing (“NOH”). The NOH advised
Mejia that the hearing would be held in November 2006 in New Orleans. Mejia
says he did not receive the NOH.
Mejia did not attend the November hearing, and the immigration judge
ordered him removed in absentia. Sometime after the hearing—it’s unclear
exactly when—Mejia received the removal order. 1 But, for the better part of a
decade, Mejia made no attempt to challenge the order. Only in 2016—when he
thought he’d be eligible for cancellation of removal because of his marriage to
an American citizen—did he tell the Government that he’d never received the
NOH. Mejia asked the immigration court to reopen and administratively close
his removal proceedings, which would allow him to seek lawful permanent
residence in this country.
Here’s the catch: A motion to reopen ordinarily must be filed within 90
days of the removal order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1).
That deadline had passed years ago. So Mejia requested equitable tolling of
the 90-day period. See Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir.
2016) (holding “that the deadline for filing a motion to reopen . . . is subject to
equitable tolling”). Alternatively, he relied on 8 U.S.C. § 1229a(b)(5)(C)(ii),
which permits “a motion to reopen [to be] filed at any time if the alien
1 Mejia changed his address in December 2006. Because the November 2006 deportation
order would have been sent to his original address, we can surmise he learned of the order
within a month after it was entered.
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demonstrates that [he] did not receive [a] notice [to appear] in accordance with
. . . section 1229(a) . . . .”
The immigration judge (“IJ”) denied the motion. She refused to toll the
deadline because the unexplained ten-year delay showed a “lack of due
diligence.” See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally, a
litigant seeking equitable tolling bears the burden of establishing . . . that he
has been pursuing his rights diligently . . . .”). And she declined to reopen under
§ 1229a(b)(5)(C)(ii) because Mejia had failed to “request[ ] reopening . . . within
a reasonable period following his receipt of the order of removal.” The BIA
affirmed. 2 And, in 2017, Mejia timely petitioned this Court to review the BIA’s
order.
B.
Before we could rule on the petition, the Supreme Court decided Pereira
v. Sessions, 138 S. Ct. 2105 (2018). In that case, the Court held that a § 1229(a)
notice to appear must contain the time and place of the removal proceedings.
Id. at 2110. Without those details, service of the NTA does not trigger the “stop-
time rule,” a mechanism that prevents an alien from accruing the ten years of
continuous physical presence in the U.S. required to become eligible for
cancellation of removal. Ibid. We stayed consideration of Mejia’s petition so he
could ask the BIA to reconsider its decision in light of Pereira.
In June 2018, Mejia filed a second motion to reopen, which he styled in
the alternative as a motion to reconsider the first motion to reopen. Mejia
argued that, because his NTA omitted the time and place of the hearing, the
NTA was invalid and the IJ lacked jurisdiction to order him removed in
2 Mejia asserted in an affidavit that he did not receive the NOH. The IJ never took a
position as to whether Mejia received the NOH, noting only that “a Respondent’s sworn
affidavit could be sufficient to overcome the . . . presumption for receipt of notice.” (Emphasis
added). Similarly, the BIA did not indicate whether it considered that presumption overcome.
The BIA and IJ both rested their decisions on other grounds.
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absentia in 2006. Mejia also argued that the defective notice to appear failed
to trigger the stop-time rule under Pereira. If true, this meant he had accrued
10 years of continuous physical presence in the country, so the BIA should
reopen his case and allow him to apply for cancellation of removal.
Again, the BIA disagreed. To start, it noted that this motion to reopen
was untimely. See 8 C.F.R. § 1003.2(c)(2) (motion to reopen a BIA decision
“must be filed no later than 90 days” after that decision). The second motion
also fell afoul of the immigration system’s one-motion-to-reopen rule. See 8
U.S.C. § 1229a(c)(7)(A) (“An alien may file one motion to reopen proceedings.”);
8 C.F.R. § 1003.2(c)(2) (“[A] party may file only one motion to reopen
deportation or exclusion proceedings.”). When treated as a motion to
reconsider, the filing fared no better—those sorts of motions “must be filed with
the Board within 30 days after the mailing of the Board decision.” 8 C.F.R.
§ 1003.2(b)(2). This one was not.
The BIA also rejected Mejia’s arguments on the merits. It took the view
that Mejia did in fact receive the NOH. And because the NOH mentioned the
time and place of the removal proceeding, it cured the deficiency in the NTA.
So the IJ did have jurisdiction to rule in Mejia’s absence; the stop-time rule
was triggered; and Mejia was ineligible for cancellation of removal.
Mejia filed a petition to review the BIA’s second ruling. We consolidated
it with the original petition.
II.
Mejia presents four arguments in his consolidated petition: (1) the BIA
should have equitably tolled the 90-day deadline to file a motion to reopen;
(2) the BIA erred when it refused to reopen his in absentia proceedings under
8 U.S.C. § 1229a(b)(5)(C)(ii); (3) under Pereira, the IJ who ordered him
removed lacked jurisdiction to do so because the NTA was defective; and (4) the
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BIA should have reopened his proceedings so he could apply for cancellation of
removal.
Successfully challenging the denial of a motion to reopen is no easy feat.
“[M]otions to reopen deportation proceedings are disfavored, and the moving
party bears a heavy burden.” Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549
(5th Cir. 2006) (quotation omitted). We apply a “highly deferential abuse-of-
discretion standard,” and only grant the petition if the BIA’s decision “is
capricious, irrational, utterly without foundation in the evidence, based on
legally erroneous interpretations of statutes or regulations, or based on
unexplained departures from regulations or established policies.” Lugo-
Resendez, 831 F.3d at 340 (quotation omitted). Under these deferential
standards, we consider and reject each of Mejia’s arguments in turn.
A.
First, the equities of tolling. An immigration judge may, in her
discretion, toll the deadline to file if the alien shows “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Lugo-Resendez, 831 F.3d at 344
(quotation omitted). “The first element requires the litigant to establish that
he pursued his rights with reasonable diligence, not maximum feasible
diligence. The second element requires the litigant to establish that an
extraordinary circumstance beyond his control prevented him from complying
with the applicable deadline.” Ibid. (quotation omitted). Applying this test, the
BIA and IJ were not wrong—and were certainly not capricious or irrational—
when they found that Mejia’s unexplained ten-year delay evidenced a lack of
diligence.
Mejia insists that he did act diligently because his wife applied for a visa
on his behalf in 2013, as soon as the Government introduced a rule that was
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favorable to unlawfully present aliens. But “reasonable diligence” means
“within a reasonable time.” It does not mean “within a reasonable time but
only when you think you can win.” In all events, a seven-year unexplained
delay between learning of a removal order and trying to undo it is still long
enough for the BIA to conclude that Mejia did not act diligently.
B.
Next, the motion to reopen under 8 U.S.C. § 1229a(b)(5)(C). That
provision directs that a removal order:
may be rescinded only—
(i) upon a motion to reopen filed within 180 days after the date of
the order of removal if the alien demonstrates that the failure to
appear was because of exceptional circumstances . . . , or
(ii) upon a motion to reopen filed at any time if the alien
demonstrates that the alien did not receive [a notice to appear].
Ibid. Mejia argues that “at any time” in subparagraph (ii) means a motion to
reopen can never be untimely.
In our view, the statutory text cannot bear the weight Mejia would place
on it. See United States v. Graves, 908 F.3d 137, 142 (5th Cir. 2019) (“text may
never be taken out of context”); ANTONIN SCALIA & BRYAN GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 356 (2012) (“Adhering to the fair
meaning of the text (the textualist’s touchstone) does not limit one to the
hyperliteral meaning of each word in the text.”). Ordinarily, a motion to reopen
must be filed within 90 days of the removal order. See 8 U.S.C.
§ 1229a(c)(7)(C)(i). But, even after that deadline, § 1229a(b)(5)(C) gives the IJ
the power to reopen an immigration proceeding. That power is discretionary—
that’s why the text says she “may” rescind an order under certain
circumstances, not that she “must.” See Gomez-Palacios v. Holder, 560 F.3d
354, 361 n.2 (5th Cir. 2009) (describing the decision to reopen as
“discretionary”).
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Still, the IJ “may . . . only” exercise that discretion if the conditions in
subsections (i) or (ii) of § 1229a(b)(5)(C) are satisfied. Subsection (i) extends the
period during which the IJ may exercise her discretion to 180 days after the
order, if exceptional circumstances are present. 8 U.S.C. § 1229a(b)(5)(C)(i).
Subsection (ii) goes even further, allowing the IJ to consider reopening the case
“at any time,” but only if the alien didn’t receive an NTA. Id.
§ 1229a(b)(5)(C)(ii). In other words, if the IJ finds that the alien never received
a notice, the IJ may—but need not—exercise her discretion after the ordinary
90-day or exceptional 180-day period has come and gone.
The IJ had ample reason not to exercise that discretion here. As one of
our sister circuits put it in a similar case:
[Petitioner’s] lack of due diligence in pursuing her motion to
rescind provided a sufficient basis for the BIA and the IJ to
exercise their discretion to deny it. The BIA and the IJ found as a
matter of fact that [Petitioner] waited multiple years to pursue her
motion to rescind because she was waiting until she became
eligible for an immigration benefit by virtue of her
marriage. Gaming of the system in an effort to avoid deportation
is not tolerated by the existing regulatory scheme.
Patel v. Holder, 389 F. App’x 19, 21 (2d Cir. 2010) (quotation omitted). So too
here: The IJ found that Mejia “waited to file for . . . relief until after he became
eligible for a provisional waiver of unlawful presence and adjustment by way
of his wife’s petition for an alien relative.” And the BIA adopted these findings.
The Board would not condone such gamesmanship. Neither will we.
Mejia rejoins that the “impos[ition of] a time limit” denied him “fair
notice and a meaningful opportunity to be heard before an IJ,” in violation of
his right to due process. Not so. Mejia had been on notice of the proceedings for
ten years. He had ample opportunity to be heard. His motion was denied
because he chose instead to wait. In any event, a denial of a motion to reopen
cannot violate the Due Process Clause because “[t]he decision to grant or deny
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a motion to reopen is purely discretionary” and does not implicate a liberty
interest. Altamirano-Lopez, 435 F.3d at 550; see also Gomez-Palacios, 560 F.3d
at 361 n.2 (similar). Mejia’s due-process contention is unavailing.
C.
That leaves the two arguments Mejia raised in his second motion: that
the IJ lacked jurisdiction to enter a removal order, and that he is eligible for
cancellation of removal. We can readily dispense with the latter claim. The BIA
was correct to note that his motion to reconsider was filed out of time. See 8
C.F.R. § 1003.2(b)(2). And the statute and regulations generally limit an alien
to one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2).
So it doesn’t matter whether we characterize the second filing as a motion to
reconsider or as a second motion to reopen. Either way, the BIA had no
obligation to reach the merits.
But these technical issues do not necessarily doom Mejia’s jurisdictional
argument. “Unlike most arguments,” challenges to subject-matter jurisdiction
“may be raised . . . at any point in the litigation . . . .” Fort Bend Cty. v. Davis,
139 S. Ct. 1843, 1849 (2019) (quotation omitted). And, regardless of the parties’
positions, “we have an independent obligation to assess our own jurisdiction
before exercising the judicial power of the United States.” MidCap Media Fin.,
L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019).
Mejia contends that receipt of a notice to appear is a jurisdictional
prerequisite for an IJ to hold an in absentia removal hearing. And because
Mejia didn’t receive an NTA with a place and time for his hearing (as required
by Pereira), he says the IJ had no jurisdiction to order him removed.
We have previously rejected a virtually identical argument. See Pierre-
Paul v. Barr, 930 F.3d 684, 691 (5th Cir. 2019). In Pierre-Paul, the alien argued
his NTA was defective because it omitted the date and time of his initial
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hearing. Therefore, the alien argued, jurisdiction never vested in the IJ under
8 C.F.R. § 1003.14, which is entitled “Jurisdiction and commencement of
proceedings.” We rejected the argument both because “the immigration court
cured the defect by subsequently mailing a notice of hearing that contained the
time and date of the initial hearing,” id. at 690, and because “8 C.F.R. § 1003.14
is not jurisdictional but is a claim-processing rule,” id. at 691.
Mejia attempts to avoid these holdings by saying his NTA is
jurisdictionally defective under 8 U.S.C. § 1229a(b)(5)(A)—regardless of Pierre-
Paul’s interpretation of the regulation. He provides no authority or explanation
for this proposition. And nothing in § 1229a(b)(5)(A) suggests it carries
jurisdictional consequences. But even if the NTA was defective, Mejia’s
decision to raise the issue for the first time in his second motion means it’s
forfeited unless it’s jurisdictional. See Fort Bend Cty., 139 S. Ct. at 1849 (“[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.” (quotation omitted)).
We hold Mejia is wrong; any defect in his NTA does not constitute
jurisdictional error under § 1229a(b)(5)(A). For a rule to be jurisdictional,
Congress must have “clearly stated that the rule is jurisdictional.” Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013) (quotation omitted). “[A]bsent
such a clear statement, . . . courts should treat the restriction as
nonjurisdictional in character.” Ibid. (quotation omitted).
Congress need not “incant magic words in order to speak clearly.” Ibid.
Still, the Supreme Court appears to require at least some mandatory language.
See, e.g., id. at 154 (holding that a provision was not jurisdictional because it
lacked “the mandatory word ‘shall’ ”). And even that might not be enough. See,
e.g., United States v. Kwai Fun Wong, 575 U.S. 402, 411 (2015) (rejecting an
argument that a provision was jurisdictional even though “[t]he language [wa]s
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mandatory” because “that is true of most [limitations] statutes, and we have
consistently found it of no consequence”).
In light of this guidance, we struggle to find a clear statement in 8 U.S.C.
§ 1229a(b)(5)(A):
Any alien who, after written notice required under paragraph
(1) or (2) of section 1229(a) of this title [i.e. the NTA] has been
provided to the alien or the alien’s counsel of record, does not
attend a proceeding under this section, shall be ordered removed
in absentia if the Service establishes by clear, unequivocal, and
convincing evidence that the written notice was so provided and
that the alien is removable (as defined in subsection (e)(2)).
The subsection says that an in absentia removal order is proper “if ” the
Government establishes service of the NTA. Congress did not employ
mandatory language, as it did elsewhere in the section. See, e.g.,
§ 1229a(c)(1)(A) (“The determination of the immigration judge shall be based
only on the evidence produced at the hearing.” (emphases added)). So
mandatory language—which is necessary but not sufficient—is lacking.
And there is nothing else to indicate that the IJ’s jurisdiction hinges on
the alien’s actual receipt of a valid NTA. To the contrary, the remedy for lack
of notice is not vacatur, as one might expect if the IJ lacked jurisdiction. It is
reopening at the IJ’s discretion. See supra Part II.B. A discretionary remedy is
hardly the stuff of mandatory jurisdiction. Cf. Kwai Fun Wong, 575 U.S. at
408–09 (noting that a “failure to comply with” a jurisdictional prerequisite
“deprives a court of all authority to hear a case”). The § 1229a(b)(5)(A) notice
requirement is therefore a claim-processing rule that Mejia has raised too
late. 3
3 In so holding, we join several of our sister circuits that have also concluded that
§ 1229a(b)(5)(A) is not jurisdictional. See Santos-Santos v. Barr, 917 F.3d 486, 490 (6th Cir.
2019); Ortiz-Santiago v. Barr, 924 F.3d 956, 963–64 (7th Cir. 2019); Karingithi v. Whitaker,
913 F.3d 1158, 1160–62 (9th Cir. 2019); Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148,
1153–54 (11th Cir. 2019).
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* * *
Inaction, no less than action, has consequences. When Mejia discovered
that he had been ordered removed in absentia, he could have immediately
applied to reopen his proceedings. He did not, and he lost the chance to have
his case administratively closed. When Mejia moved to reopen, he could have
raised all his arguments in the first motion. He did not, and he lost the chance
to have half of them decided on the merits. Both petitions for review are
DENIED.
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