                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                          February 3, 2020
                       _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 HENRY JAVIER CRUZ MORENO,

       Petitioner,

 v.                                                         No. 19-9507
                                                        (Petition for Review)
 WILLIAM P. BARR, United States
 Attorney General,

       Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Henry Javier Cruz Moreno seeks review of a final order of removal, claiming

that under Pereira v. Sessions, 138 S. Ct. 2105 (2018), the immigration judge (IJ)

lacked jurisdiction to conduct removal proceedings. We deny the petition for review.

                                          I

      Moreno is a Honduran national who entered the United States in 2004. In

2018, the Department of Homeland Security (DHS) issued him a Notice to Appear


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(NTA) in removal proceedings, charging him with being present in this country

without lawful admission or parole. See 8 U.S.C. § 1182(a)(6)(A)(i). The NTA did

not specify the date or time of his initial hearing, but DHS later provided the omitted

information by serving him a Notice of Hearing. When Moreno appeared before the

IJ, he conceded he was removable and requested voluntary departure, though he

quickly acknowledged he was ineligible for that relief. Thus, he simply requested a

removal order and indicated he waived his right to appeal. The IJ accordingly

ordered him removed to Honduras.

      Following the IJ’s decision, however, Moreno filed a notice of appeal with the

Board of Immigration Appeals (BIA). In his notice he asserted that, under Pereira,

“the [IJ] had no jurisdiction to enter orders against [him] due to a defective Notice to

Appear.” Admin. R. at 7. He also indicated he would file a brief with the BIA,

though he never did. Consequently, when the BIA took up his case, it ruled that he

waived his right to appeal. The BIA nonetheless proceeded to consider and reject

Moreno’s assertion that the IJ lacked jurisdiction under Pereira, ruling:

      [T]he Supreme Court described the dispositive question presented in
      Pereira as “narrow” and related to whether the “stop-time” rule that is
      applicable to cancellation of removal applications would be triggered by
      a[n] NTA that lacked specific information about the time and location of
      the hearing. Pereira did not hold that a[n] NTA that did not contain a
      specific date, time, and location of the hearing was invalid for all
      purposes or did not validly initiate removal proceedings. See Matter of
      Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018).

Admin. R. at 3. The BIA therefore dismissed the appeal, and Moreno subsequently

sought review in this court.


                                           2
                                            II

       Ordinarily, we will consider only those arguments that a petitioner properly

presents to the BIA. Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007).

Indeed, “neglecting to take an appeal to the BIA constitutes a failure to exhaust

administrative remedies as to any issue that could have been raised, negating the

jurisdiction necessary for subsequent judicial review.” Id. (internal quotation marks

omitted). However, when the BIA independently reaches out and decides an issue in

a substantive discussion, it may sua sponte exhaust that issue for purposes of judicial

review. See id. at 1119-22. “To qualify for [the sua sponte exhaustion rule], the BIA

must: (1) clearly identify a claim, issue, or argument not presented by the petitioner;

(2) exercise its discretion to entertain that matter; and (3) explicitly decide that matter

in a full explanatory opinion or substantive discussion.” Garcia-Carbajal v. Holder,

625 F.3d 1233, 1235 (10th Cir. 2010).

       Here, regardless of whether Moreno waived his right to appeal, the BIA

considered and rejected his jurisdictional argument in a full substantive discussion,

thereby satisfying all three elements of the sua sponte exhaustion rule. First, the BIA

clearly identified Moreno’s argument “that in light of Pereira v. Sessions, 138 S. Ct.

2105 (2018), the [IJ] lacked jurisdiction over the removal proceedings because the

[NTA] lacked a date and time of the initial hearing.” Admin. R. at 3. Second, the

BIA exercised its discretion to take up that issue. See id. And third, the BIA rejected

the argument in a substantive discussion by distinguishing Pereira, describing the

relevant issue in that case as “narrow,” and concluding that Pereira did not hold a

                                            3
defective NTA was invalid for all purposes or could not initiate removal proceedings.

Id. (internal quotation marks omitted). While the BIA’s analysis was succinct, it

definitively decided the issue citing relevant authority, and, in any event, we “defer

to the agency’s determination of the depth of explanation merited by a given

question,” Garcia-Carbajal, 625 F.3d at 1240. Thus, the BIA sua sponte exhausted

Moreno’s jurisdictional argument.1

      Nonetheless, the argument is unavailing. We recently rejected a similar

argument in Lopez-Munoz v. Barr, 941 F.3d 1013 (10th Cir. 2019), explaining that

Pereira did not hold that a defective NTA divested an IJ of jurisdiction:

             In Pereira, the Court decided only whether a defective notice to
      appear had interrupted a noncitizen’s continuous presence in the United
      States. 138 S. Ct. at 2110. The Court did not address the distinct
      question of whether a defect in the notice to appear would preclude
      jurisdiction over the removal proceedings. Indeed, the Court expressly
      declined to address this broader question, emphasizing that the decision
      was “much narrower.” Id. at 2113.

Lopez-Munoz, 941 F.3d at 1018. We therefore joined other “circuits in declining to

read Pereira as an implicit pronouncement on an immigration judge’s jurisdiction”

and concluded that an NTA’s failure to specify the date and time of a hearing is not a



      1
         In this court, Moreno expands upon the general jurisdictional argument he
raised in his notice of appeal to the BIA, adding new regulatory and statutory theories
and challenging other circuit courts’ case law. None of these theories were presented
in his notice of appeal to the BIA, however, nor were they discussed by the BIA. We
decline to evaluate these novel theories and restrict the scope of our review to the
specific argument he originally offered under Pereira. See Garcia-Carbajal,
625 F.3d at 1237 (“To satisfy [the statutory exhaustion requirement], an alien must
present the same specific legal theory to the BIA before he or she may advance it in
court.”).
                                           4
jurisdictional defect. Id.; see also Martinez-Perez v. Barr, ___ F.3d ___,

No. 18-9573, 2020 WL 253553, at *3 (10th Cir. Jan. 17, 2020) (following “the lead

of Lopez-Munoz and join[ing] the overwhelming chorus of our sister circuits that

have already rejected similar Pereira-based challenges” (internal quotation marks

omitted)). Given this precedent, Moreno’s challenge to the IJ’s jurisdiction fails.

                                          III

      Accordingly, we deny the petition for review.


                                                      Entered for the Court


                                                      Nancy L. Moritz
                                                      Circuit Judge




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