Moreno-Lopez v. Barr

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 2, 2020 _________________________________ Christopher M. Wolpert Clerk of Court LUIS MORENO-LOPEZ, Petitioner, v. No. 18-9584 (Petition for Review) WILLIAM P. BARR, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________ An immigration judge (IJ) denied Luis Moreno-Lopez’s (Mr. Moreno) application for voluntary departure and ordered him removed to Mexico. He appealed to the Board of Immigration Appeals (BIA or Board). While his appeal was pending, he filed a motion to terminate or remand proceedings under Pereira v. Sessions, 138 S. Ct. 2105 (2018). The BIA denied the motion to remand and dismissed his appeal. Mr. Moreno petitions for review of the BIA’s order. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review in part, deny in part, and remand to the BIA for further proceedings. In doing so, we distinguish Pereira to conclude that the Immigration Court had jurisdiction over the removal proceeding even though the notice to appear (NTA) failed to designate a time and place for the proceeding. But, as regards the motion to remand for consideration of cancellation of removal to allow Mr. Moreno to demonstrate presence in the United States for a continuous period of not less than 10 years immediately preceding the date of said application, see 8 U.S.C. § 1229b(b)(1), we conclude Banuelos-Galviz v. Barr, 953 F.3d 1176 (10th Cir. 2020), controls. Banuelos-Galviz held a petitioner is not disqualified from seeking cancellation of removal based on a combination of an incomplete NTA and a notice of hearing (NOH), such as Mr. Moreno received here. See id. at 1184. I. Mr. Moreno is a native and citizen of Mexico. He asserts he entered this country in January 2000. In April 2008 an IJ permitted him to voluntarily depart the United States. He claims he reentered this country two weeks later, on April 24, 2008. In February 2017 the Department of Homeland Security (DHS) served a NTA on Mr. Moreno. The NTA stated he had entered the United States at an unknown place and date. It charged him with removability as an alien who was present in the United States without being admitted or paroled and ordered him to appear before an IJ at a date and time “[t]o be set.” R. at 96. 2 The DHS later served a NOH on Mr. Moreno. The NOH required ...

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