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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10568
Non-Argument Calendar
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Agency No. A215-827-332
MD FARHAD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 22, 2020)
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
MD Farhad seeks review of the Board of Immigration Appeals’s (“BIA”)
order denying his motion to reopen his immigration proceedings. Specifically,
Farhad asks us to review the BIA’s denial of his argument that the Immigration
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Judge (“IJ”) lacked jurisdiction over his removal proceedings under the Supreme
Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). The government
moves for summary denial of his petition for review, arguing that we lack
jurisdiction to address the merits of Farhad’s petition for review and, in the
alternative, that his challenge is foreclosed by our precedent.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
We review the BIA’s denial of a motion to reopen for an abuse of discretion,
and any underlying legal determinations de novo. Li v. U.S. Att’y Gen., 488 F.3d
1371, 1374 (11th Cir. 2007). Review of the denial of a motion to reopen is limited
to determining whether there has been an exercise of administrative discretion and
whether that exercise was arbitrary or capricious. Ali v. U.S. Att’y Gen., 443 F.3d
804, 808 (11th Cir. 2006). “Motions to reopen in removal proceedings are
particularly disfavored.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009). However, we do not have jurisdiction to review the BIA’s decision denying
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a petitioner’s motion for sua sponte reopening. Lenis v. U.S. Att’y Gen., 525 F.3d
1291, 1292, 1294 (11th Cir. 2008).
In Pereira, decided in 2018, the Supreme Court analyzed whether a notice to
appear (“NTA”) that did not specify the time and place of an alien’s removal
hearing triggered the stop-time rule for cancellation of removal and therefore
ended the alien’s continuous physical presence in the United States. See Pereira v.
Sessions, 138 S. Ct. 2105, 2109-10 (2018). The Supreme Court held that a putative
NTA that failed to designate the specific time or place of the alien’s removal
proceedings was not a “notice to appear” under 8 U.S.C. § 1229(a) and, therefore,
did not trigger the stop-time rule. Id. at 2110, 2113-14. The Court explained that
failing to specify “integral information like the time and place of removal
proceedings unquestionably [deprives] [the NTA] of its essential character.” Id. at
2116.
After Pereira, the BIA issued a published decision holding that an NTA that
did not specify the time and place of an alien’s initial removal hearing nevertheless
vested the IJ with jurisdiction over the removal proceedings and met the
requirements of 8 U.S.C. § 1229(a)(1), so long as a notice of hearing specifying
this information was later sent to the alien. Matter of Bermudez-Cota, 27 I. & N.
Dec. 441, 447 (BIA 2018). In its decision, the BIA noted both the long history of
NTA’s that lacked time and place specifications and how the Supreme Court in
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Pereira addressed only a narrow question regarding the stop-time rule, and it
remanded the case for further proceedings, indicating that there was jurisdiction
over the case. Id. at 443-47.
Recently, in Perez-Sanchez, however, we concluded that, when an NTA
failed to specify the time of the hearing, it violated 8 U.S.C. § 1229(a). See
Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1153-57 (11th Cir. 2019). But
we determined that such a rule was only a claim-processing rule, rather than a
jurisdictional rule. Id. Because the rule was not jurisdictional, its violation did not
deprive the agency of jurisdiction. Id. at 1154‑55. Turning to 8 C.F.R. § 1003.14,
which provides when jurisdiction vests with the immigration judge, we reasoned
that it too was a claim-processing rule. See id. at 1155-57. Thus, even if the NTA
failing to specify the time of the hearing rendered it deficient under the regulations,
the agency still properly exercised jurisdiction. Id. We also noted that the
regulations did not require the NTA to contain the time, date, and location of the
removal hearing. Id. 1155 (citing 8 C.F.R. § 1003.15).
As an initial matter, we do not have jurisdiction to review the BIA’s decision
denying Farhad’s motion for sua sponte reopening. Lenis, 525 F.3d at 1292, 1294.
Even if we could address the merits of Farhad’s petition, our decision in
Perez-Sanchez forecloses Farhad’s arguments. See Perez-Sanchez, 935 F.3d at
1153-57. Indeed, we held that an NTA’s failure to specify the date and time of a
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hearing does not divest the IJ of jurisdiction. Id. Thus, Farhad’s arguments on
appeal would be foreclosed by our prior precedent. Id.
Therefore, because the government’s position is clearly correct as a matter
of law, we GRANT the government’s motion for summary denial of Farhad’s
petition for review. See Groendyke Transp., Inc., 406 F.2d at 1162.
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MD Farhad v. U.S. Attorney General
Combined Opinion