on the briefs[*]
Petition for Review of a Decision of the Board of Immigration
Jennifer M. Smith, Glenwood Springs, Colorado, on behalf of
H. Hunt, Assistant Attorney General, Leslie McKay, Senior
Litigation Counsel, and Manuel A. Palau, Trial Attorney, U.S
Department of Justice, Washington, D.C., on behalf of the
MATHESON, McKAY, and BACHARACH, Circuit Judges
BACHARACH, CIRCUIT JUDGE.
petition for review involves a collateral challenge to a
removal (deportation) order. The removal proceedings began
with the service of a notice to appear. Because the notice to
appear failed to include a date and time for her impending
immigration hearing,  the petitioner (Ms. Sandra Lopez-Munoz)
argues that the immigration judge lacked jurisdiction over
the removal proceedings.
Lopez is right, she may be entitled to relief based on the
immigration judge's lack of jurisdiction to order
removal. In our view, however, the alleged defect would not
preclude jurisdiction. We thus deny the petition for review.
Ms. Lopez seeks review of the denial of a motion to
eventual removal proceedings, Ms. Lopez appeared and
requested cancellation of removal, but the immigration judge
declined the request. Ms. Lopez unsuccessfully appealed to
the Board of Immigration Appeals, moved for the Board to
reopen her case, petitioned for review in our court, moved a
second time for the Board to reopen her case, and moved for
reconsideration of the denial of her second motion to reopen.
Lopez's present petition for review involves the denial
of her motion to reconsider. Ordinarily, a
noncitizen cannot file a second motion to reopen,
much less a motion to reconsider the denial of a second
motion to reopen. See 8 U.S.C. §
l229a(c)(7)(A); 8 C.F.R. § 1003.23(b)(1). In addition,
motions to reopen are ordinarily due 90 days from the date of
the removal order. 8 U.S.C. § l229a(c)(7)(C)(i); 8
C.F.R. § 1003.23(b)(1).
these bars, Ms. Lopez sought reconsideration of an otherwise
prohibited second motion to reopen nearly six years after
issuance of the removal order. To overcome these procedural
bars, Ms. Lopez must show a jurisdictional defect in the
removal proceedings. Kontrick v. Ryan, 540 U.S. 443,
Lopez alleges a jurisdictional defect in her notice to appear
based on noncompliance with regulations and the underlying
statute. The regulations state that (1) the filing of a
"charging document" creates jurisdiction, (2) a
charging document consists of a notice to appear, and (3) a
notice to appear must include the date and time where
practicable. 8 C.F.R. §§ 1003.13, 1003.14(a),
1003.18. The statute provides that a notice to appear must
specify the time and place of the removal hearing. 8 U.S.C.
§ l229(a)(1)(G)(i). Invoking the regulations and
statute, Ms. Lopez contends that her notice to appear was
defective because it omitted the time or place of the removal
hearing. For the sake of argument, we assume that Ms. Lopez
is right about the existence of a defect in the notice to
The alleged defect in the notice to appear was ...