Josue Umana-Escobar v. Merrick Garland

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSUE UMANA-ESCOBAR, No. 19-70964 Petitioner, Agency No. A205-474-027 v. MERRICK B. GARLAND, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 11, 2023 Pasadena, California Filed March 17, 2023 Before: Paul J. Watford, Michelle T. Friedland, and Mark J. Bennett, Circuit Judges. Opinion by Judge Bennett 2 UMANA-ESCOBAR V. GARLAND SUMMARY * Immigration Dismissing in part, granting in part, and denying in part Josue Umana-Escobar’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel: (1) held that it lacked jurisdiction to consider Umana- Escobar’s unexhausted argument that the omission of required time and place information in his Notice to Appear (“NTA”) amounted to a claim-processing error; (2) remanded Umana-Escobar’s administrative closure claim for further consideration in light of intervening precedent; and (3) remanded Umana-Escobar’s asylum and withholding claims because the BIA erroneously reviewed the immigration judge’s nexus determination for clear error, rather than de novo. Before the agency, Umana-Escobar argued that because his NTA omitted required time and place information the IJ lacked jurisdiction. Before this court, however, Umana- Escobar raised a different argument, contending the BIA should have terminated his proceedings because the defective NTA amounted to a claim-processing violation. The panel observed that in his counseled brief on appeal to the BIA, Umana-Escobar argued exclusively that an NTA that lacks either the time or place of a removal proceeding cannot vest an immigration court with jurisdiction. Umana-Escobar also told the BIA that it did not have to consider whether his claim had been waived because * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UMANA-ESCOBAR V. GARLAND 3 “jurisdiction cannot be waived.” The panel wrote that it was therefore clear that Umana-Escobar’s NTA argument sounded exclusively in jurisdiction and that the BIA thus had no reason to consider whether the NTA’s defects could constitute some other type of violation which might be subject to waiver, such as a claim-processing violation. Because Umana-Escobar failed to exhaust the alleged claim-processing violation, the panel held that it lacked jurisdiction to consider it. The BIA denied Umana-Escobar administrative closure after concluding that it had no authority to grant such relief under Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). However, while this petition was pending, the Attorney General issued Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (A.G. 2021), which overruled Matter of Castro- Tum and reinstated the BIA’s authority to grant administrative closure pending the Department of Justice’s review of a regulation concerning the issue. Given this change, the panel agreed with the government’s unopposed recommendation to remand the administrative closure issue to the BIA for further consideration. The BIA upheld the immigration judge’s denial of asylum and withholding of removal solely based on Umana- Escobar’s failure to establish the required …

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