Nakia Courtney Hamilton v. U.S. Attorney General

Case: 19-14082 Date Filed: 03/25/2020 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-14082 Non-Argument Calendar ________________________ Agency No. A060-601-517 NAKIA COURTNEY HAMILTON, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (March 25, 2020) Before BRANCH, LAGOA, and TJOFLAT, Circuit Judges. PER CURIAM: Case: 19-14082 Date Filed: 03/25/2020 Page: 2 of 5 Nakia Hamilton petitions for review of the order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his counseled “Motion to Reopen and Reconsider and Rescind Removal Order for Failure to Timely File Application for Relief & Alternative Form of Relief” as a numerically barred motion to reopen. We deny his petition. Hamilton raises three issues on appeal. First, he argues that the IJ lacked jurisdiction over his removal proceedings because his notice to appear (“NTA”) did not contain the time and place of his removal hearing. Second, he argues that the BIA erred in affirming the IJ’s denial of his filing as a numerically-barred second motion to reopen, because he asserts that it was actually a motion for reconsideration. Lastly, he argues that the BIA erred in affirming the IJ’s denial of his construed motion to reopen because his spouse’s filing of a Form I-130 Petition for Alien Relative was material new evidence under 8 U.S.C. § 1229(c)(7). I. First, we turn to Hamilton’s jurisdictional argument.1 Because his NTA did not include the time or place for his hearing as specified in 8 U.S.C. § 1229(a), Hamilton claims that removal proceedings were never validly initiated against him, and that the IJ therefore had no jurisdiction to conduct such proceedings. Hamilton 1 We review subject matter jurisdiction de novo. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006). 2 Case: 19-14082 Date Filed: 03/25/2020 Page: 3 of 5 cites Pereira v. Sessions, 138 S. Ct. 2105 (2018), in support of his argument. The Pereira Court held that an NTA does not meet the criteria of § 1229(a), and does not trigger the stop-time rule that was at issue in that case, if the NTA fails to include the time and place of the noncitizen’s removal proceedings. Id. at 2113– 14. We recently rejected an argument identical to Hamilton’s in Perez-Sanchez v. U.S. Attorney General, 935 F.3d 1148 (11th Cir. 2019). There, we stated that “the regulation and the statute” governing “the service or filing of an NTA” set forth “only claim-processing rules,” not jurisdictional rules. Id. at 1153. We held that “neither 8 U.S.C. § 1229(a) nor 8 C.F.R. § 1003.14 speaks to jurisdiction,” and therefore the “IJ and the BIA properly exercised jurisdiction” over the removal proceedings. Id. at 1157. Hamilton’s protestations notwithstanding, his argument that this rule is jurisdictional is foreclosed by binding precedent. Accordingly, we deny his petition with respect to this claim. II. Next, we turn to Hamilton’s argument that the BIA ...

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