                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 15-2401
                                      _____________

                                JERZY JOZET DELEKTA,
                                   AKA Jerzy Delekta,

                                                   Petitioner

                                             v.

           ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

                                               Respondent
                                      _____________

             On Petition for Review from the Board of Immigration Appeals
                              (Agency No. A089-006-176)
                       Immigration Judge: Hon. Amiena A. Khan
                                    _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 17, 2016

     Before: CHAGARES, RESTREPO, and VAN ANTWERPEN, Circuit Judges.

                                  (Filed: March 21, 2016)
                                      ______________

                                        OPINION
                                     ______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.

       Petitioner Jerzy Delekta contends that the Immigration Judge (“IJ”) erred by

failing to terminate removal proceedings against him despite violations of his due process

rights in the initiation of those proceedings, or at least erred by not permitting him to

pursue a claim for cancellation of removal. He asks that we reverse the IJ’s removal

order and either dismiss the removal proceedings or remand the case to permit him to

seek cancellation of removal. For the reasons that follow, we will deny the petition.

                                              I.

       Because we write exclusively for the parties, we set forth only those facts

necessary to our disposition. Delekta is a Polish national admitted to the United States on

October 28, 1999 and authorized to remain for only one year. He remained in the United

States beyond that one-year period and fathered children who are U.S. citizens. The

Department of Homeland Security (“DHS”) initiated removal proceedings in February

2009, charging him with removability under 8 U.S.C. § 1227(a)(1)(B) for remaining in

the United States longer than permitted.

       Several hearings regarding the removal charges were held between 2009 and 2013.

Delekta conceded that he was removable. Administrative Record (“A.R.”) 72. Further,

although he stated his intent to “explore eligibility for cancellation of removal” during a

June 22, 2010 hearing, he voiced no opposition to the IJ’s statement that the Notice to

Appear (“NTA”) that initiated the proceedings was served on February 10, 2009, less

than ten years after Delekta’s entry into the United States, which would ordinarily make

him ineligible for cancellation of removal under 8 U.S.C. §§ 1229b(b)(1)(A) and

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1229b(d)(1). Id. at 73-74. The issue that Delekta wanted to “explore” was whether his

date of entry into the United States might have been earlier. Id.; see also id. at 79-80

(repeating this position at an August 21, 2012 hearing).

       On September 26, 2013, Delekta petitioned the IJ to terminate removal

proceedings, claiming that (1) he was unlawfully detained by DHS between February 5,

2009 and February 24, 2009, thereby invalidating any NTA that was served during that

time period (and thus the removal proceedings themselves), and (2) the NTA was invalid,

having been served by someone other than an official authorized under 8 C.F.R. §§ 239.1

and 1239.1. In the alternative, Delekta requested that the date of service for the NTA be

“tolled” to June 22, 2010, because there had allegedly been a stipulation to that date of

service during the June 22, 2010 hearing. He argued that success on either claim would

effectively mean that removal proceedings did not begin prior to the ten-year cutoff on

October 28, 2009, and therefore that he would be eligible for cancellation of removal.

       But on December 23, 2013, the IJ denied Delekta’s motion and ordered him

removed to Poland. The IJ concluded that Delekta had failed to plead these claims and

had conceded proper service of the NTA, and that no egregious circumstances warranted

allowing Delekta to withdraw the concession and replead, citing Matter of Velasquez, 19

I. & N. Dec. 377, 382 (BIA 1986) (“Absent egregious circumstances, a distinct and

formal admission made before, during, or even after a proceeding by an attorney acting in

his professional capacity binds his client as a judicial admission.”).

       The IJ nonetheless addressed Delekta’s claims about the NTA. Regarding the

unlawful detention, the IJ credited DHS documents showing that Delekta was not

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detained until February 24, 2009, either concurrent with or subsequent to service of the

NTA and an arrest warrant, meaning that Delekta was never unlawfully detained. The IJ

also noted the absence of any legal authority for the proposition that an unlawful

detention would invalidate a properly served NTA. Next, the IJ rejected Delekta’s

argument regarding improper service of the NTA under 8 C.F.R. §§ 239.1 and 1239.1,

concluding that those regulations pertain only to those who may issue NTAs, not those

who may serve them. Finally, the IJ rejected the claim that June 22, 2010 had been

stipulated as the date of service, finding no support for that in the transcript of the June

22, 2010 hearing.1 Instead, the IJ found that the NTA was served in February 2009, as

attested in the certificate of service.

       The Board of Immigration Appeals (“BIA”) affirmed the IJ’s order on May 6,

2015, without issuing a written opinion. On June 5, 2015, Delekta filed the instant

petition for review.

                                              II.

       The BIA exercised jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We

exercise jurisdiction to review final orders of removal under 8 U.S.C. § 1252. “Where, as

here, the BIA affirms the IJ’s decision without opinion, ‘we review the IJ’s opinion and

scrutinize its reasoning.’” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting

       1
        IJ Amiena A. Khan, who denied Delekta’s motion and entered the removal order,
was not present at the June 22, 2010 hearing where the stipulation was allegedly entered
into. Delekta’s case was originally assigned to IJ Susan Roy, then temporarily assigned
to IJ Rodger Harris (who presided at the June 22, 2010 hearing) before being reassigned
to IJ Khan. There is no merit to Delekta’s argument that the reassignment of his case,
which took place long before the IJ addressed his motion to terminate and ordered him
removed, somehow makes reversal fairer or more appropriate than it otherwise would be.
                                               4
Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc)). “Review of an IJ decision

is conducted under the substantial evidence standard which requires that administrative

findings of fact be upheld ‘unless any reasonable adjudicator would be compelled to

conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). “We exercise de

novo review over constitutional claims or questions of law and the application of law to

facts.” Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011) (quoting Yusupov v. Att’y

Gen., 518 F.3d 185, 197 (3d Cir. 2008)) (quotation marks omitted).

                                              III.

        In his petition, Delekta repeats the arguments made to the IJ. Even setting aside

the matter of Delekta’s failure to raise these issues prior to the September 26, 2013

motion, his arguments lack merit.

       The IJ’s determination that Delekta was not detained by DHS until February 24,

2009 was supported by substantial evidence — namely, contemporaneous DHS

documents recording February 24, 2009, as the date of Delekta’s detention. A.R. 274-77.

The IJ was also correct that 8 C.F.R. §§ 239.1 and 1239.1 do not invalidate the NTA.

Those regulations list immigration officials who “may issue a notice to appear” and

provide that “[s]ervice of the notice to appear shall be in accordance with section 239 of

the Act.” 8 C.F.R. §§ 239.1, 1239.1 (emphases added). Section 239 of the Immigration

and Nationality Act, in turn, requires only that “written notice (in this section referred to

as a ‘notice to appear’) shall be given in person to the alien (or, if personal service is not

practicable, through service by mail to the alien or to the alien’s counsel of record, if

any).” 8 U.S.C. § 1229(a)(1).

                                               5
       We agree with Delekta that the record contains some ambiguity regarding the date

on which the NTA was served. The certificate of service was preprinted with the

signature of Immigration Enforcement Agent Gerardo Ore and a date of service of

February 10, 2009, but his name was crossed out and replaced by a handwritten signature

of Deportation Officer Bernard Sullivan. A.R. 313. Sullivan also served and signed the

arrest warrant, on which he crossed out not only Ore’s preprinted name, but also the

preprinted date of February 10, 2009, replacing it with a handwritten date of February 24,

2009. Id. at 274.

       But the IJ was not required to credit Delekta’s explanation for the discrepancy.

Delekta argues that Ore “attempted” and failed (because Ore was not authorized under 8

C.F.R. §§ 239.1 and 1239.1) to serve the NTA on February 10, 2009, which accounts for

why Delekta’s inked fingerprint (in lieu of a signature) appears on the certificate of

service. Delekta Br. 8, 22. According to Delekta, later service by Sullivan on February

24, 2009, never happened. Id. The IJ instead concluded that Sullivan did serve the NTA

and that the preprinted date of service of February 10, 2009, was left as the result of a

“scrivener’s error.” App. 8. We have reviewed the record and conclude that the IJ’s

finding was not erroneous, as a “reasonable adjudicator would [not] be compelled to

conclude to the contrary.” Chen, 434 F.3d at 216 (quoting 8 U.S.C. § 1252(b)(4)(B))

(quotation marks omitted).

       Further, the exact date in February 2009 on which the NTA was served is

ultimately irrelevant, both as to the validity of the removal proceedings and as to

Delekta’s eligibility for cancellation of removal. Even if we accepted Delekta’s

                                              6
contention that no service occurred on February 24, 2009 (a contention that the IJ was not

compelled to accept), his argument would still fail because it relies on the faulty premise

that 8 C.F.R. §§ 239.1 and 1239.1 rendered service by Ore improper. Ore, no less than

Sullivan, was competent to serve the NTA. Whether the NTA was served on February 10

by Ore, February 24 by Sullivan, or both, the service was proper and took place prior to

or concurrent with Delekta’s detention, and well before the ten-year cutoff date of

October 28, 2009, thereby barring Delekta from seeking cancellation of removal.

       Finally, the record contains no evidence of a stipulation that the NTA was served

on June 22, 2010 — much less evidence that would have compelled the IJ to reach a

different conclusion. Delekta claims that the transcript of June 22, 2010 hearing does not

reflect the stipulation because it is incomplete. He also points to an unexplained

handwritten notation “RHC 06/22/10” on the NTA, which he interprets as documentation

of the stipulation, but there is no evidence that it means what Delekta claims. A.R. 312.

Further, the transcript of the June 22, 2010 hearing that does exist, even if somehow

incomplete, cuts strongly against Delekta’s argument. Near the end of the hearing,

Delekta concurred with the IJ’s statement that the NTA was served in February 2009,

which would make little sense if, in the same hearing, Delekta had stipulated or was

planning to stipulate to June 22, 2010, as the date of service. Id. at 71, 73-74.

                                             IV.

       For the foregoing reasons, the petition for review will be denied.




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