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Lopez-Munoz v. Barr

United States Court of Appeals, Tenth Circuit

November 4, 2019

SANDRA LOPEZ-MUNOZ, Petitioner,
v.
WILLIAM P. BARR, Attorney General Respondent.

         Submitted on the briefs[*]

          Petition for Review of a Decision of the Board of Immigration Appeals

          Jennifer M. Smith, Glenwood Springs, Colorado, on behalf of the Petitioner.

          Joseph 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 Respondent.

          Before MATHESON, McKAY, and BACHARACH, Circuit Judges

          BACHARACH, CIRCUIT JUDGE.

         This 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, [1] the petitioner (Ms. Sandra Lopez-Munoz) argues that the immigration judge lacked jurisdiction over the removal proceedings.

         If Ms. 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.

         1. Ms. Lopez seeks review of the denial of a motion to reconsider.

         At the 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.

         Ms. Lopez's present petition for review involves the denial of her motion to reconsider. Ordinarily, a noncitizen[2] 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).[3]

         Despite 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, 455 (2004).

         Ms. 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 appear.

         2. The alleged defect in the notice to appear was ...


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