Summary
The Second Circuit reviews two consolidated petitions for review concerning an Ecuadorian national's application for cancellation of removal. The court denies the petition challenging the Board of Immigration Appeals' conclusion that the petitioner forfeited his objection to a defective notice to appear, reaffirming that the time-and-place requirement is a non-jurisdictional claim-processing rule. The court also dismisses in part and denies in part the petition challenging factual findings regarding the petitioner's alleged false testimony and lack of good moral character, citing jurisdictional bars on reviewing unreviewable questions of fact.
Topics
Practice areas
Questions Presented
- Whether the time-and-place requirement in 8 U.S.C. § 1229(a)(1) is a non-jurisdictional claim-processing rule subject to waiver or forfeiture.
- Whether the BIA abused its discretion by finding forfeited Penaranda's objection to the notice to appear because he raised it for the first time after the conclusion of the IJ proceedings.
- Whether the court had jurisdiction to review the agency's factual findings that Penaranda gave false testimony and did so for the purpose of obtaining cancellation of removal.
- Whether the IJ applied an impermissibly heightened clear-and-convincing-evidence standard rather than a preponderance-of-the-evidence standard when evaluating Penaranda's eligibility for cancellation of removal.
Holdings
- The requirement that a notice to appear specify the time and place of the initial removal hearing is a mandatory but non-jurisdictional claim-processing rule subject to waiver and forfeiture.
- The BIA did not abuse its discretion by finding that Penaranda forfeited his objection because he did not raise it before the IJ proceedings concluded.
- The court lacked jurisdiction to review the agency's factual findings that Penaranda gave false testimony and that he did so with the purpose of obtaining cancellation of removal.
- The court had jurisdiction to review the asserted legal error, but the record did not show that the IJ required clear and convincing evidence from Penaranda. The IJ correctly placed the burden on Penaranda to establish eligibility for cancellation of removal, and the petition was denied on this issue.
Key quotations
“For the avoidance of all doubt: We confirm that, based on our own independent analysis, we agree with the BIA that Section 1229(a)(1) creates a mandatory but non-jurisdictional, claim-processing rule that is subject to waiver and forfeiture.” (19)
“For the foregoing reasons, Penaranda’s 2024 petition is DENIED, and his 2023 petition is DISMISSED in part and DENIED in part.” (32)
Factual background
Penaranda Arevalo, an Ecuadorian citizen who entered the United States without authorization in 2001, was placed in removal proceedings and later married Lucy Raposo, a United States citizen, in 2008. After that marriage was investigated and the associated immigration petition was revoked, he married Lucy's mother, Lucia Medeiros, and applied for cancellation of removal. The IJ found that Penaranda gave false testimony about the timing and nature of his relationships with Lucia and Lucy for the purpose of obtaining an immigration benefit, and therefore lacked good moral character. His original notice to appear omitted the date and time of his initial hearing, but he did not object until after the IJ proceedings had concluded.
Procedural history
An immigration judge denied Penaranda Arevalo's application for cancellation of removal after finding that he lacked good moral character because he gave false testimony for the purpose of obtaining an immigration benefit. The BIA affirmed that decision, and Penaranda filed the 2023 petition for review. While that petition was pending, he moved before the BIA to terminate or remand proceedings based on the defective notice to appear; the BIA denied the motion as forfeited, resulting in the 2024 petition. The Second Circuit considered both petitions together, denying the 2024 petition and dismissing in part and denying in part the 2023 petition.