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VILLANUEVA PEREZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-03-23No. No. 19-70664

Summary

Holding. The petition for review is denied. The immigration court retained jurisdiction over the removal proceedings despite the initial Notice to Appear's failure to designate the court, because subsequent hearing notices cured this defect.

Salvador Villanueva-Perez, a Mexican citizen, sought judicial review of the Board of Immigration Appeals' decision upholding an immigration judge's denial of his applications for cancellation of removal, adjustment of status, and an inadmissibility waiver under federal law. Villanueva-Perez raised only one argument on appeal: that the immigration court lacked authority to hear his removal case because his Notice to Appear failed to specify which court would handle the proceedings. The court rejected this argument based on binding precedent establishing that such an omission does not deprive a court of jurisdiction when subsequent hearing notices supply the missing court designation. The court found that any defect in the original notice had been corrected by later documents.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a Notice to Appear that fails to designate the immigration court strips the court of jurisdiction
  • Effect of curing jurisdictional defects through subsequent notices
  • Waiver of unraised claims in opening brief

Procedural posture

Villanueva-Perez petitioned for review of a Board of Immigration Appeals decision affirming the immigration judge's denial of relief from removal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

MEMORANDUM **

Salvador Villanueva-Perez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judges decision denying his applications for cancellation of removal, adjustment of status, and a § 212(h) inadmissibility waiver. Villanueva-Perez now petitions for review. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

In his opening brief, Villanueva-Perez does not raise, and therefore waives, any challenge to the agencys determinations regarding his claims for cancellation of removal, adjustment of status, or a § 212(h) inadmissibility waiver. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a partys opening brief are waived).

Villanueva-Perez argues that the immigration court lacked jurisdiction over his removal proceedings because his Notice to Appear (“NTA”) failed to designate the court where the NTA would be filed, in violation of 8 C.F.R. § 1003.15(b)(6). This argument is foreclosed by Aguilar Fermin v. Barr, which held that such a failure does not strip the immigration court of jurisdiction if a subsequent hearing notice provides the missing information. 958 F.3d 887, 894-95 & n.4 (9th Cir. 2020). Here, although the original NTA did not designate the immigration court, this error was cured by subsequent hearing notices.

As stated in the courts August 2, 2019 order, the temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.