RODRIGUEZ CERVANTES v. BARR (2020)

Oscar Rodriguez-Cervantes, a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (BIA) denying his motion to terminate his removal proceedings for lack of jurisdiction.

In reliance on Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), Rodriguez-Cervantes contends his Notice to Appear (NTA) was defective, thereby depriving the immigration court of jurisdiction, because it did not state the date and time of his removal proceedings. Our court, however, has rejected this jurisdictional challenge and determined Pereira is limited to the context of the stop-time rule in removal proceedings. See Pierre-Paul v. Barr, 930 F.3d 684, 689-90 (5th Cir. 2019), cert. denied, 2020 WL 1978950 (U.S. Apr. 27, 2020) (No. 19-779); see also Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S. Ct. 2767, 204 L.Ed.2d 1133 (2019). Rodriguez-Cervantes’s NTA was not defective because it detailed the nature of the removal proceedings, stated their legal basis, and warned about the possibility of in absentia removal; any alleged defect, moreover, would have been cured because Rodriguez-Cervantes was issued a later notice of hearing that included the date and time of his removal proceedings. See Pierre-Paul, 930 F.3d at 690-91.

We need not decide whether Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), or Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), because, in decisions such as Mauricio-Benitez and Pierre-Paul, this court reached essentially the same conclusion as the BIA regarding the limited reach of Pereira without applying Chevron or Auer deference. See Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir. 2006).

Accordingly, the petition for review is DENIED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.