Filed: Sep. 11, 2020
Latest Update: Sep. 11, 2020
Summary: Case: 18-60777 Document: 00515560605 Page: 1 Date Filed: 09/11/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 11, 2020 No. 18-60777 Lyle W. Cayce Clerk Karen Vanessa Elias Gil, Petitioner, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A099-671-138 Before Barksdale, Elrod, and Ho, Circuit Judges. Per Curiam:* Karen Vanessa Elias Gil enter
Summary: Case: 18-60777 Document: 00515560605 Page: 1 Date Filed: 09/11/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 11, 2020 No. 18-60777 Lyle W. Cayce Clerk Karen Vanessa Elias Gil, Petitioner, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A099-671-138 Before Barksdale, Elrod, and Ho, Circuit Judges. Per Curiam:* Karen Vanessa Elias Gil entere..
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Case: 18-60777 Document: 00515560605 Page: 1 Date Filed: 09/11/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 11, 2020
No. 18-60777 Lyle W. Cayce
Clerk
Karen Vanessa Elias Gil,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A099-671-138
Before Barksdale, Elrod, and Ho, Circuit Judges.
Per Curiam:*
Karen Vanessa Elias Gil entered the United States illegally as a child
in 2006. After being served a notice to appear for removal proceedings and a
subsequent notice of the time and place of the removal hearing, Gil was
removed in absentia. Gil challenges her removal with a second motion to
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-60777 Document: 00515560605 Page: 2 Date Filed: 09/11/2020
No. 18-60777
reopen removal proceedings. We DENY Gil’s petition to review the order
of the Board of Immigration Appeals.
I.
In 2006, Gil entered the United States illegally. When Gil was twelve
years old, she was apprehended with an adult, Maria Hilda Gil Arteaga.1
Arteaga was served on behalf of Gil with a notice to appear for a removal
hearing, “time and date to be set.” In response to the notice, Arteaga
provided a mailing address. The immigration court mailed a subsequent
notice specifying the time and date for Gil’s removal hearing, but not before
Gil had moved from that address. Gil did not appear and was ordered
removed in absentia. Neither Gil nor Arteaga kept officials appraised of Gil’s
address for many years. In 2016, Gil challenged her removal in a motion to
reopen, which the immigration judge denied. Gil did not appeal to the Board
of Immigration Appeals.
Gil filed a subsequent motion to reopen, which the immigration judge
also denied. In that second motion to reopen, Gil asserted that she did not
receive notice to appear and that any error on Arteaga’s part in providing an
effective address could not be imputed to her. The immigration judge
rejected Gil’s arguments and denied the motion. Gil appealed to the Board
of Immigration Appeals by moving to terminate the proceedings for lack of
jurisdiction under Pereira v. Sessions, 138 S. Ct. 2105 (2018). The Board
dismissed Gil’s appeal, concluding that notice was proper and that Gil’s
motion was barred. Gil now petitions this court to review the Board’s order.
1
Arteaga is identified as Gil’s mother and as her aunt at different points in the
record by Gil herself. Arteaga’s exact relationship to Gil is irrelevant to our conclusion that
Gil’s second motion to reopen is procedurally barred.
2
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No. 18-60777
II.
We review the disposition of a motion to reopen under a “highly
deferential abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009). Gil rests her petition for review on two arguments:
(1) that the notice to appear did not satisfy 8 U.S.C. § 1229(a) and so the
immigration court lacked jurisdiction to remove her; and (2) that even if the
immigration court had jurisdiction, service of the notice to appear was
improper.
Gil’s jurisdictional argument fails under Pierre-Paul v. Barr, 930 F.3d
684 (5th Cir. 2019). In Pierre-Paul we explained that the Supreme Court’s
decision in Pereira v. Sessions “addressed a ‘narrow question’ of whether a
notice to appear that omits the time or place of the initial hearing triggers the
statutory stop-time rule for cancellation of removal,” and it does not address
the use of a notice to appear as a charging document.
Id. at 689–90.
Moreover, the technical requirements of a notice to appear are not
jurisdictional requirements but rather claim-processing rules.
Id. at 691. The
immigration court did not lack jurisdiction.
Gil’s remaining argument fails because she was procedurally barred
from filing a second motion to reopen. Under both 8 U.S.C. § 1229a(c)(7)(A)
and 8 C.F.R. § 1003.23(b)(1), an alien may file only “one motion to reopen
proceedings.” Gil urges us to construe her second motion to reopen as a
motion to reconsider. Gil’s briefing, however, is insufficient on this point
because it is relegated to a footnote lacking any legal citation. Arbuckle
Mountain Ranch of Tex. Inc. v. Chesapeake Energy Corp., 810 F.3d 335, 339 n.4
(5th Cir. 2016). Without legal arguments to do so, we have no basis to treat
Gil’s second motion to reopen as a motion to reconsider. As a second motion
to reopen, her motion was procedurally barred.
3
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No. 18-60777
* * *
Gil’s petition for review is DENIED.
4
