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

                           FOR THE TENTH CIRCUIT                            April 30, 2020
                       _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 HECTOR EMILIANO PORTILLO
 MARTINEZ,

       Petitioner,                                           No. 19-9584
                                                         (Petition for Review)
 v.

 WILLIAM P. BARR, United States
 Attorney General,

       Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
                   _________________________________


      Petitioner Hector Emiliano Portillo Martinez seeks review of the Board of

Immigration Appeals’ (“BIA”) denial of his motion to reopen removal proceedings.

Mr. Portillo Martinez further asks us to impose sanctions on the government. We

deny his request for sanctions, but we remand this matter to the BIA to consider




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Mr. Portillo Martinez’s motion, without reliance on precedent that is no longer valid

in this circuit.

                                  I.     BACKGROUND

       On March 22, 2005, within days of entering the United States without

inspection, Mr. Portillo Martinez was served with a notice to appear charging him as

removable. As was common in that era, Mr. Portillo Martinez’s notice to appear did

not contain the time and date of his removal hearing. Mr. Portillo Martinez’s hearing

was subsequently scheduled for July 13, 2005, in San Antonio, Texas. Mr. Portillo

Martinez did not attend that hearing, and, as a result, he was ordered removed in

absentia.

       On January 14, 2008, an Immigration Judge (“IJ”) granted Mr. Portillo

Martinez’s motion to reopen his removal proceedings, finding Mr. Portillo Martinez

had established he did not “receive notice of his [2005] hearing through no fault of

his own.” AR at 142–43. On April 7, 2010, the IJ granted Mr. Portillo Martinez

permission to voluntarily depart the United States prior to the completion of his

removal proceedings. See 8 U.S.C. § 1229c(a). Mr. Portillo Martinez agreed to depart

by August 5, 2010, and the IJ entered an alternate order of removal that became

effective if Mr. Portillo Martinez failed to depart by that date.

       Mr. Portillo Martinez did not depart the United States, and, in September of

2018, he filed a motion to again reopen his removal proceedings. Among other

things, Mr. Portillo Martinez argued the Supreme Court’s decision in Pereira v.

Sessions, 138 S. Ct. 2105 (2018), rendered him prima facie eligible for cancellation

                                            2
of removal, and that any procedural barriers to that relief should be excused on

equitable grounds. On October 4, 2018, the IJ denied the motion, concluding it was

defective on both procedural and substantive grounds.

      Mr. Portillo Martinez appealed the IJ’s decision to the BIA, and on

September 27, 2019, the BIA dismissed his appeal, issuing a written decision finding

that Mr. Portillo Martinez had not established prima facie eligibility for cancellation

of removal and that, even if he were otherwise eligible, his failure to voluntarily

depart in 2010 operated to withhold that relief from him for a period of ten years.

      Mr. Portillo Martinez timely filed this petition for review.

                                   II.    DISCUSSION

                   A. Mr. Portillo Martinez’s Petition for Review

      “We review the BIA’s denial of [Mr. Portillo Martinez’s] motion to reopen for

an abuse of discretion.” See Qui v. Sessions, 870 F.3d 1200, 1202 (10th Cir. 2017).

The BIA abuses its discretion when its order contains legal error, “provides no

rational explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.” Mahamat v.

Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (quotation marks omitted).

      The parties spend the bulk of their briefing debating the propriety of the BIA’s

decision in In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (BIA 2019) (en

banc), which held that, for purposes of triggering the “stop-time” rule,1 a defective


      1
       Under the so-called “stop-time” rule, an alien’s eligibility for cancellation of
removal under 8 U.S.C. § 1229b(b)(1) is terminated when, before the alien accrues
                                           3
notice to appear is cured by subsequent service of a notice of hearing that supplies

the previously-omitted information—the so-called “two-step” process for triggering

the “stop-time” rule.2 But in an opinion issued on March 25, 2020, after the instant

petition became fully briefed, we rejected the reasoning of Mendoza-Hernandez,

concluding that “the stop-time rule is triggered by one complete notice to appear

rather than a combination of documents.” Banuelos-Galviz v. Barr, 953 F.3d 1176,

1178 (10th Cir. 2020). Thus, in this circuit, “the stop-time rule is not triggered by the

combination of an incomplete notice to appear and a notice of hearing.” Id. at 1184.

      Because the BIA’s conclusion that Mr. Portillo Martinez has not demonstrated

prima facie eligibility for cancellation of removal relied on the government’s

compliance with the “two-step” process we have now held insufficient, we must set

aside its order. See AR at 4–5 (identifying “various Notices of Hearing” received by

Mr. Portillo Martinez and concluding that “[c]onsistent with Mendoza-Hernandez,




ten years of continual physical presence in the United States, the government serves
the alien with a notice to appear, thereby initiating removal proceedings. See 8 U.S.C.
§ 1229b(d)(1).
      2
         Mr. Portillo Martinez appears to suggest further that the IJ who granted him
pre-conclusion voluntary departure and entered an alternate order of removal was
without jurisdiction to do so. Along with nine other circuits, we have definitively
rejected any argument that a deficient notice to appear divests Immigration Judges of
jurisdiction over removal proceedings. See Martinez-Perez v. Barr, 947 F.3d 1273,
1278 (10th Cir. 2020) (“[T]he requirements relating to notices to appear are non-
jurisdictional, claim-processing rules.”); Lopez-Munoz v. Barr, 941 F.3d 1013, 1017
(10th Cir. 2019) (“[Section] 1229(a) is non-jurisdictional.”). These decisions
foreclose Mr. Portillo Martinez’s jurisdictional attack.
                                            4
the respondent has not established that he is prima facie eligible for cancellation of

removal.” (citation omitted)).

       The government makes only one other argument for affirmance: that

Mr. Portillo Martinez’s failure to depart voluntarily pursuant to the 2010 order

rendered him ineligible to seek voluntary cancellation for a period of ten years. See 8

U.S.C. § 1229c(d)(1)(B) (declaring that “if an alien is permitted to depart voluntarily

under this section and voluntarily fails to depart the United States within the time

period specified, the alien . . . shall be ineligible, for a period of 10 years” to receive

discretionary cancellation of removal pursuant to § 1229b). But the parties agree that

Mr. Portillo Martinez’s ten-year period of ineligibility expired on April 7, 2020. As a

result, the BIA’s order cannot be sustained on this ground.3

       We note that the BIA identified other procedural hurdles precluding the

reopening of Mr. Portillo Martinez’s removal proceedings. But the government does



       3
         The government characterizes this barrier as impacting the justiciability of
this appeal as a matter of Article III standing. The government argues Mr. Portillo
Martinez cannot establish that he will suffer an imminent, “concrete and
particularized” injury in fact. Resp. Br. at 24–25 (quoting Lujan v. Defs. of Wildlife,
503 U.S. 555, 560 (1992)). But that Mr. Portillo Martinez faces an imminent injury in
the form of removal is beyond dispute. If anything, Mr. Portillo Martinez’s additional
and independent bar to cancellation of removal (owing to the ten-year period of
ineligibility) is relevant to the redressability requirement of Article III standing.
       Now that Mr. Portillo Martinez’s ten-year bar to cancellation of removal has
expired, he has established a likelihood that his injury will be redressed by a
favorable decision. But even if this source of ineligibility persisted, he would still
have standing on appeal because, “[w]here there are legal impediments to the
recovery sought, it is enough for standing that the relief sought will remove some of
those legal roadblocks, even if others may remain.” See Cal. Sea Urchin Comm’n v.
Bean, 883 F.3d 1173, 1181–82 (9th Cir. 2018).
                                             5
not defend the BIA’s order on those grounds, presumably because the BIA relied on

the government’s compliance with the two-step process to the exclusion of these

procedural obstacles. Indeed, Mr. Portillo Martinez asserted that he should be

excused from these procedural requirements on equitable grounds, but the BIA

expressly withheld decision on “the merits of [Mr. Portillo Martinez’s] equitable”

arguments because it believed the government had triggered the stop-time rule by the

combination of a defective notice to appear and multiple subsequent notices of

hearing. AR at 4–5.

      In sum, the BIA erred by relying on the government’s compliance with an

impermissible method for triggering the stop-time rule to deny Mr. Portillo

Martinez’s motion to reopen removal proceedings, thereby committing legal error

and abusing its discretion. And because Mr. Portillo Martinez is no longer prohibited

from receiving cancellation of removal for failing to voluntarily depart, the BIA’s

order cannot be sustained on that ground.

                  B. Mr. Portillo Martinez’s Request for Sanctions

      In his reply brief, Mr. Portillo Martinez asks us to assess monetary sanctions

against the government for what he characterizes as the government’s “attempt to

confuse this Court and . . . continu[e] the errors of law and fact committed by the IJ

and the [BIA].” Reply Br. at 18.

      “We must deny this request because [Mr. Portillo Martinez] failed to file a

separate motion or notice requesting sanctions.” Abeyta v. City of Albuquerque, 664

F.3d 792, 797 (10th Cir. 2011). “A separately filed motion requesting sanctions

                                            6
constitutes notice. A statement inserted in a party’s brief that the party moves for

sanctions is not sufficient notice.” Fed. R. App. P. 38 advisory committee’s note to

1994 amendment; see Kelley v. Smith’s Food & Drug Ctrs., Inc., 793 F. App’x 787,

792 (10th Cir. 2019) (unpublished) (applying rule to deny request for sanctions,

inserted in appellant’s reply brief, for appellee’s assertion of “multiple baseless

allegations” on appeal).

                                  III.   CONCLUSION

      For the above reasons, we grant Mr. Portillo Martinez’s petition for review and

remand to the BIA for further proceedings consistent with this order and judgment.

Mr. Portillo Martinez’s request for sanctions is denied.

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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