Reina Morales-Aldana v. William Barr

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1697 REINA ELIZABETH MORALES-ALDANA, a/k/a Reyna Morales-Santana, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: August 30, 2019 Decided: September 13, 2019 Before KEENAN and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge. Dismissed in part and denied in part by unpublished per curiam opinion. Jaime Winthuyzen Aparisi, Silver Spring, Maryland, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Kohsei Ugumori, Senior Litigation Counsel, Sarah K. Pergolizzi, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Reina Elizabeth Morales-Aldana, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (Board) dismissing her appeal from the Immigration Judge’s denial of her requests for withholding of removal and protection under the Convention Against Torture (CAT). Morales-Aldana first contends that agency lacked jurisdiction over her removal proceedings because the notice to appear that was filed with the immigration court did not indicate the time and place for her hearing. See 8 C.F.R. § 1003.14(a) (2019); see also 8 C.F.R. § 1003.13 (2019) (listing a “notice to appear” as one of the charging documents satisfying § 1003.14(a)); 8 U.S.C. § 1229(a)(1)(G)(i) (2012) (listing “[t]he time and place at which [removal] proceedings will be held” as required contents of a “notice to appear”). She relies on the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018) (holding that notice to appear that fails to designate specific time or place of removal proceeding does not trigger stop-time rule ending alien’s continuous presence period for purposes of cancellation of removal). We recently rejected this same basic claim in United States v. Cortez, 930 F.3d 350 (4th Cir. 2019) (holding that the failure of a notice to appear to include a date and time for petitioner’s removal hearing “does not implicate the immigration court’s adjudicatory authority or ‘jurisdiction’”). First, we explained in Cortez, § 1003.14(a) is “a docketing rule” lacking jurisdictional significance, meaning that a violation of that rule would not deprive an immigration court of authority to adjudicate a case. Id. at 362. A claim that § 1003.14(a) has been violated may thus be forfeited, as it was here, when Morales-Aldana 2 failed to exhaust her claim by objecting to the notice to appear before the agency. See 8 U.S.C. § 1252(d)(1) (2012) (stating that we “may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right”). Second, as we further explained in Cortez, Morales-Aldana is in any event wrong on the merits: whether a case is properly docketed with the immigration court under § 1003.14(a) turns on whether the notice filed with the immigration court satisfies the distinct requirements set out at 8 C.F.R. § 1003.15(b), (c) ...

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