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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14585
Non-Argument Calendar
________________________
Agency No. A208-921-365
MARIUS VADUVA,
ALINA VADUVA,
VALENTINO CONSTANTIN,
ALEX VADUVA,
DENIS VADUVA,
FABIO VADUVA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 28, 2020)
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Before JILL PRYOR, NEWSOM and ANDERSON, Circuit Judges.
PER CURIAM:
Petitioners Marius Vaduva and Alina Vaduva, along with their four children,
(together, the “Vaduvas”) petition for review of the Board of Immigration
Appeals’ (“BIA”) order denying their motion to terminate removal proceedings. 1
After the Vaduvas entered the United States without inspection, the Department of
Homeland Security issued them notices to appear, alleging that they were subject
to removal under 8 U.S.C. § 1182(a)(6)(A)(i). None of the notices identified the
time, date, or location of the removal hearings proceedings.
The Vaduvas now argue the BIA erred in denying their motion to terminate
proceedings. They say that the agency lacked jurisdiction over their removal
proceedings under the reasoning of Pereira v. Sessions, 138 S. Ct. 2105 (2018),
because their notices to appear failed to set forth the time and place of their
removal hearings. Because this argument is foreclosed by our precedent, we deny
their petition. 2
1
In the same order, the BIA also affirmed the IJ’s decision denying the Vaduvas’
application for asylum, Marius’s application for withholding of removal, and Marius’s
application for protection under the Convention Against Torture. The Vaduvas do not seek
review of this portion of the BIA’s order, and we do not address it further.
2
We review de novo the BIA’s legal determinations and interpretations of law or statutes.
See Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1195 (11th Cir. 2006).
2
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The Immigration and Nationality Act (“INA”) provides that an immigration
judge shall conduct proceedings to determine whether a noncitizen is removable
from the United States. 8 U.S.C. § 1229a(a)(1). The statute does not explicitly
state the conditions upon which jurisdiction vests with an immigration judge, but
regulations provide that “[j]urisdiction vests . . . when a charging document is filed
with the Immigration Court.” 8 C.F.R. § 1003.14(a). A notice to appear is a type
of charging document. Id. § 1003.13. By statute, a notice to appear must specify,
among other things, the time and place at which a removal hearing will be held.
8 U.S.C. § 1229(a)(1)(G)(i). But under the regulatory framework, a notice to
appear is not required to specify the time or place of the removal hearing. See
8 C.F.R. § 1003.15(b), (c). 3
In Pereira, the Supreme Court addressed when a noncitizen was eligible for
cancellation of removal, a type of discretionary relief available to nonpermanent
residents who have accrued 10 years of continuous physical presence in the United
States. 138 S. Ct. at 2109. The Court considered whether the INA’s stop-time
rule, which specifies that a noncitizen’s period of physical presence is deemed to
end when he is served with a notice to appear, applied when the notice to appear
3
The regulations specify that a notice to appear shall include time and place information
for the removal hearing “where practicable.” 8 C.F.R. § 1003.18(b). When a notice omits this
information, the regulations permit an immigration judge to later provide the information to the
noncitizen. Id.
3
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that the noncitizen received failed to specify the time and place of the removal
hearing. Id. at 2109–10. 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 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, it
acknowledged that the flaw present in the case—the failure to specify the time or
place of the removal hearing—was present in nearly every notice to appear that
had been issued in recent years. Id. at 2110–11. After Pereira, some noncitizens,
like the Vaduvas, asserted that their removal proceedings were void because their
proceedings were purportedly commenced by a “putative notice to appear” that
was “not a notice to appear under section 1229(a).” Id. at 2113–14 (internal
quotation marks omitted).
We have considered whether a notice to appear that failed to state the time
and date of a noncitizen’s hearing deprived the agency of jurisdiction over the
removal proceedings. See Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1150
(11th Cir. 2019). We determined that such a notice to appear was “unquestionably
deficient” under § 1229(a). Id. at 1153. And we reasoned that Pereira foreclosed
any argument that this statutory defect in the notice could be cured by a subsequent
4
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notice that informed the noncitizen of the time and date of the removal hearing. Id.
at 1153–54.
We nonetheless held in Perez-Sanchez that a defective notice to appear 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
instead set forth a “claim-processing rule.” Id. at 1154–55. We also considered
whether the immigration judge lacked jurisdiction under 8 C.F.R. § 1003.14. Id. at
1154. We questioned whether the regulation, which purported to set forth when
immigration proceedings commenced, should be given effect, because it was
contrary to the unambiguous language in the statute. Id. But even assuming the
statute was ambiguous and the regulation should be given effect, we determined
that the outcome remained the same because the regulation “set[] forth only a
claim-processing rule.” Id. at 1155–57. Even though the regulation expressly
referred to the vesting of jurisdiction in the agency, we held that it was not a
jurisdictional rule because agencies cannot set or limit their own jurisdiction. Id. at
1155. Because neither 8 U.S.C. § 1229(a) nor 8 C.F.R. § 1003.14 spoke to
jurisdiction, we concluded that “the IJ and the BIA properly exercised jurisdiction
over [the petitioner’s] removal hearing” based on the authority conferred under the
INA, even though the petitioner received a defective notice to appear, and denied
the petition as to the Pereira claim. Id. at 1157.
5
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Our decision in Perez-Sanchez forecloses the Vaduvas’ argument that the
agency lacked jurisdiction over their removal proceedings. Because the
requirement that a notice to appear include time and place information is a claim-
processing, rather than jurisdictional, rule, we cannot say that the BIA erred when
it denied their motion to terminate removal proceedings. Accordingly, we deny
their petition for review.
PETITION DENIED.
6