Jorge Lopez Hernandez v. Merrick Garland

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JORGE REYNALDO LOPEZ No. 20-71956 HERNANDEZ, AKA Jorge Hernandez, AKA Jorge Hernandez Agency No. Lopez, A206-412-045 Petitioner, OPINION v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 16, 2023 * Pasadena, California Filed February 16, 2023 * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 LOPEZ HERNANDEZ V. GARLAND Before: John B. Owens and Eric D. Miller, Circuit Judges, and Dana L. Christensen,** District Judge. Opinion by Judge Miller SUMMARY *** Immigration Denying Jorge Reynaldo Lopez Hernandez’s petition for review of the Board of Immigration Appeals’ decision in which the Board sustained the government’s challenge to the immigration judge’s termination of proceedings, the panel held that the Board permissibly declined to consider Lopez’s challenges to the IJ’s alternative denial of withholding of removal and protection under the Convention Against Torture because Lopez did not file a cross-appeal of that determination. The IJ concluded that because Lopez’s Notice to Appear lacked hearing time and place information, as required by Pereira v. Sessions, 138 S. Ct. 2105 (2018), the immigration court lacked jurisdiction over his proceedings. However, recognizing that the Board might disagree with its jurisdictional conclusion, the IJ alternatively denied Lopez’s application for withholding of removal and CAT protection ** The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LOPEZ HERNANDEZ V. GARLAND 3 on the merits. The government appealed the IJ’s decision to terminate proceedings, but Lopez did not file a cross- appeal. The Board sustained the government’s appeal of the IJ’s termination of proceedings, but concluded that because Lopez did not file a cross-appeal, the IJ’s alternative denial of relief on the merits was not properly before it. Before this court, Lopez expressly waived review of the Board’s termination determination, but argued that the Board erred when it concluded that he was required to file a separate cross-appeal to challenge the IJ’s alternative order on the merits of his claims. The panel rejected this argument. In concluding that the IJ’s alternative merits determination was not properly before it, the Board relied on 8 C.F.R. § 1003.3(a), which states that “[a]n appeal from a decision of an immigration judge shall be taken by filing a Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) directly with the Board, within the time specified in § 1003.38.” The panel observed that section 1003.3 does not expressly address cross-appeals. However, the panel wrote that the cross-appeal rule is an “unwritten but longstanding rule” under which “an appellate court may not alter a judgment to benefit a nonappealing party.” The panel explained that the Supreme Court has described this rule as “firmly …

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