            Case: 19-13666   Date Filed: 04/13/2020   Page: 1 of 5



                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 19-13666
                          Non-Argument Calendar
                        ________________________

                         Agency No. A088-295-652

AMPARO M. CASTANEDA GUANUME,


                                                                     Petitioner,

                                           versus

U.S. ATTORNEY GENERAL,


                                                                     Respondent.
                        ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                         ________________________
                                 (April 13, 2020)

Before JORDAN, LAGOA and BLACK, Circuit Judges.

PER CURIAM:

     Amparo Castaneda Guanume petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of her motion to reconsider and terminate removal
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proceedings in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). The Government

has moved for summary denial of Guanume’s petition and to stay the briefing

schedule.

      Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

      We review the BIA’s denial of a motion for reconsideration for abuse of

discretion. Assa’ad v. U.S. Atty. Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). We

are bound by a prior panel opinion, even if it was wrongly decided, until the

opinion’s holding is overruled by the Supreme Court or our Court sitting en banc.

See United States v. Golden, 854 F.3d 1256, 1257 (11th Cir. 2017).

      In Pereira, the Supreme Court considered a question “at the intersection of”

8 U.S.C. § 1229(a), regarding the contents of a notice to appear, and the “stop-time”

rule for cancellation of removal in 8 U.S.C. § 1229b(d)(1). Pereira, 138 S. Ct. at

2109-10. The Supreme Court concluded that a putative notice to appear that does

not specify either the time or place of the removal proceedings does not trigger the

stop-time rule and thus does not end the alien’s continuous physical presence in the


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United States for purposes of cancellation of removal eligibility. Pereira, 138 S. Ct.

at 2110. The Supreme Court reasoned that a “putative notice to appear that fails to

designate the specific time or place of the noncitizen’s removal proceedings is not a

‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.”

Id. at 2113-14 (quoting 8 U.S.C. § 1229b(d)(1)). Although the Supreme Court in

Pereira stated that it was deciding only a “narrow question” about an eligibility

requirement for cancellation of removal, it also acknowledged that the notice to

appear flaw present in the case—the failure to specify the time or place of the

removal hearing—was present in nearly every notice to appear that had been issued

in recent years. Id. at 2110-11. Consequently, Pereira gave rise to a raft of claims

by aliens asserting that their removal proceedings, whether ongoing or already

complete, were void because they were purportedly commenced by a “putative

notice to appear” that was “not a notice to appear under section 1229(a).” Id. at

2113-14 (quotation marks omitted).

       We recently addressed a petitioner’s Pereira claim that the IJ “never had

jurisdiction over his removal case” because the notice to appear “did not include

either the time or date of his removal hearing.” Perez-Sanchez v. U.S. Att’y Gen.,

935 F.3d 1148, 1150 (11th Cir. 2019). As an initial matter, we concluded that we

had jurisdiction to review Perez-Sanchez’s Pereira claim, even though he did not

raise it first before the BIA. Id. at 1153. We explained that we “always have


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jurisdiction to determine our own jurisdiction,” and because our jurisdiction to

review removal proceedings extended only to final orders of removal, we necessarily

had to determine whether there was a valid final order of removal granting it

jurisdiction. Id. Thus, Perez-Sanchez’s failure to exhaust the claim before the

agency did not deprive our Court of jurisdiction. Id.

      Turning next to the merits, we first determined that the notice to appear was

“unquestionably deficient” under § 1229(a) for failing to specify the time and date

of the removal hearing. Id. We concluded in Perez-Sanchez that the defective notice

to appear did not deprive the agency of jurisdiction over the removal proceedings

because the statutory “time-and-place requirement” did not “create a jurisdictional

rule,” but was instead a “claim-processing rule.” Id. at 1154-55. Similarly, we also

concluded that 8 C.F.R. § 1003.14 too, “despite its language, sets forth not a

jurisdictional rule but a claim-processing one,” reasoning that “an agency cannot

fashion a procedural rule to limit jurisdiction bestowed upon it by Congress.” Id. at

1155. Having determined that the agency properly exercised jurisdiction over

Perez-Sanchez’s removal proceedings, we denied his petition for review as to his

Pereira claim. Id. at 1157. Finally, to the extent Perez-Sanchez claimed he was

entitled to a remand because the notice to appear otherwise violated the agency’s

claim-processing rules, we dismissed the petition for lack of jurisdiction because the

claim was unexhausted. Id.


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        Here, there is no substantial question that Guanume’s petition is foreclosed by

precedent. See Groendyke Transp., Inc., 406 F.3d at 1162. Guanume’s arguments

that the IJ did not have jurisdiction over her removal proceeding because her NTA

was defective are foreclosed by our precedent in Perez-Sanchez. That precedent is

binding even if it was wrongly decided, as Guanume argues. See Golden, 854 F.3d

at 1257.

        Therefore, because there is no substantial question that Guanume’s petition is

foreclosed by precedent, we GRANT the government’s motion for summary denial

of Guanume’s petition.        See Groendyke Transp., Inc., 406 F.2d at 1162.

Accordingly, we DENY the accompanying motion to stay the briefing schedule as

moot.




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