                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0139n.06

                                        Case No. 15-3728

                          UNITED STATES COURT OF APPEALS
                                                                                   FILED
                                                                              Mar 14, 2016
                               FOR THE SIXTH CIRCUIT
                                                                          DEBORAH S. HUNT, Clerk


MARTIN CAMPOS-LUNA,                               )
                                                  )
       Petitioner,                                )
                                                  )        ON PETITION FOR REVIEW
v.                                                )        FROM THE UNITED STATES
                                                  )        BOARD   OF  IMMIGRATION
LORETTA E. LYNCH, U.S. Attorney                   )        APPEALS
General,                                          )
                                                  )
       Respondent.                                )
                                                  )

       BEFORE: DAUGHTREY, MOORE, and SUTTON, Circuit Judges.

       SUTTON, Circuit Judge. After Martin Campos-Luna failed to appear at his removal

hearing, an immigration judge ordered him removed from the United States. Over a year later,

Campos-Luna challenged the sufficiency of the notice he received about the proceedings and the

immigration court’s jurisdiction over him. The Board of Immigration Appeals rejected both

claims on the ground that he filed them too late. Unpersuaded by Campos-Luna’s challenge to

those rulings, we deny his petition for review.

       Campos-Luna entered the United States illegally at an unknown time in an unknown

place. He caught the attention of federal immigration officials in 2012 when a traffic offense

landed him in a Kentucky county jail to serve a six-day sentence. After his sentence ended, an

officer from an Immigration and Customs Enforcement facility in Louisville interviewed him
Case No. 15-3728
Campos-Luna v. Lynch
and printed a Notice to Appear that charged Campos-Luna with being “subject to removal from

the United States.” A.R. 99. The officer handed Campos-Luna two unsigned copies of the

notice. Campos-Luna kept the first one. He then signed the second one, acknowledging that the

government had served the notice “in person,” “provid[ing] oral notice in the English & Spanish

language . . . of the consequences of failure to appear.” Id. at 100. An immigration officer

signed the second copy, and the government filed it with the immigration court to commence

removal proceedings against Campos-Luna. See 8 C.F.R. § 1003.14(a).

       The government set his removal hearing for September 19, 2012, in Cleveland, Ohio, and

mailed Campos-Luna a notice to that effect. Campos-Luna admits that he received the notice but

did not go to the hearing. The immigration authorities ordered him removed from the United

States. See 8 U.S.C. § 1229a(b)(1).

       Over a year later, in October 2013, he asked the immigration judge to reopen his

proceedings. He argued that it was improper (1) to require him to sign the notice to appear

before any immigration officer had signed it and (2) to fail to give him a copy of the signed

notice filed with the immigration court. These errors, said Campos-Luna, invalidated the notice

and deprived the immigration court of jurisdiction over his case. The immigration court denied

the motion. Campos-Luna raised the same argument in the Board of Immigration Appeals. It

too ruled against him on the ground that the motion was untimely. Campos-Luna petitions our

court for review of the Board’s decision.

       When an alien fails to attend a removal proceeding, the immigration court must order him

removed if the government proves he had notice of the hearing and is removable. 8 U.S.C.

§ 1229a(b)(5)(A). That’s what the court did with respect to Campos-Luna, and that’s why it

ordered him removed. Because he waited over a year to challenge the government’s notice, his



                                              2
Case No. 15-3728
Campos-Luna v. Lynch
options in the immigration courts were limited. Indeed, he had just two. He could ask the

immigration court or Board of Immigration Appeals to reopen the removal proceedings on their

own initiatives. 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1). And he could file a “motion to reopen”

“at any time” that “demonstrate[d]” he “did not receive notice in accordance with” notice

provisions of the Immigration and Nationality Act. 8 U.S.C. § 1229a(b)(5)(C)(ii).

       Campos-Luna tried the first option. But the immigration court and Board refused to

reopen the proceedings on that basis. He does not question that decision.

       He also tried the second option, maintaining he did not receive proper notice of the

removal proceedings. The problem is, he never claimed that the delivered notice ran afoul of the

statute. His main concerns instead were (1) the notice allegedly was not properly “issue[d]”

under 8 C.F.R. § 239.1(a) because, when he signed it, it lacked an immigration officer’s

signature; and (2) the executed copy filed with the immigration court allegedly was never served

on him in violation of 8 C.F.R. § 1003.32(a). Both concerns relate to regulations that neither

purport to establish a violation of the relevant statute nor interpret the relevant statute. The first

dictates who can issue notices to appear, 8 C.F.R. § 239.1(a), relevant to a statute that allows the

Secretary of Homeland Security to designate which employees may enforce which parts of the

immigration act, 8 U.S.C. § 1103(a). The second dictates a procedural rule that applies to almost

all proceedings in the immigration court, 8 C.F.R. § 1003.32(a), relevant to statutes that allow

the Attorney General to set departmental regulations, 5 U.S.C. § 301; 8 U.S.C. § 1103(g). At no

point did Campos-Luna explain how a violation of either regulation would violate the relevant

statute. He thus did not bring the kind of challenge that would allow the immigration court to

reopen his removal proceedings.




                                                  3
Case No. 15-3728
Campos-Luna v. Lynch
       Campos-Luna protests that the Board should have treated his non-statutory argument as a

statutory one, which would have made the argument timely and would have prompted a decision

on the merits. But the Board had no obligation to rewrite his motion, making his argument

something it was not and giving him a chance of success that the filed motion did not.

       Campos-Luna persists that the Board was obligated to reach the merits of his motion

because it implicated the subject matter jurisdiction of the immigration court. He is half-right.

Article III federal courts, it is true, have an unwavering duty to ensure that they have subject

matter jurisdiction over a case, even when the issue first arises on appeal, even indeed by raising

the issue on their own. See Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127 (1804). But the

argument does not work here. No one doubts we have subject matter jurisdiction over Campos-

Luna’s petition for review. See 8 U.S.C. § 1252(a)(1). Campos-Luna’s contention instead

concerns the jurisdiction of the immigration court, which is not an Article III court. It is an

Article I court, one responsible for enforcing the immigration laws, see 8 C.F.R. § 1003.9(d);

INS v. Abudu, 485 U.S. 94, 110 (1988), and one in which arguments about the power of the court

may be forfeited.

       In reviewing the Board’s actions here, the inquiry turns not on whether it incorrectly

determined it had jurisdiction but instead on “whether the agency has gone beyond what

Congress has permitted it to do.” City of Arlington v. FCC, 133 S. Ct. 1863, 1869 (2013). The

difference explains why a litigant in federal district court cannot forfeit a challenge to subject

matter jurisdiction, but a petitioner attacking agency action can forfeit a challenge to agency

jurisdiction. See Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir. 1981); United

Transp. Union v. Surface Transp. Bd., 114 F.3d 1242, 1244–45 (D.C. Cir. 1997). Otherwise,

challenges to action by the Board, with an assist from “creative lawyers,” could invariably “be



                                                4
Case No. 15-3728
Campos-Luna v. Lynch
reframed as questions about the scope of agencies’ regulatory jurisdiction,” free from statutorily

imposed time limits. St. Marys Cement Inc. v. U.S. EPA, 782 F.3d 280, 287 (6th Cir. 2015)

(quotation omitted).

       Campos-Luna in the last analysis cannot alter these statutory realities by affixing a

jurisdictional label to his argument. His challenge to the notice was not one that could be raised

“at any time.” 8 U.S.C. § 1229a(b)(5)(C)(ii). And the Board did not err in declining to consider

it given how long Campos-Luna waited to raise it.

       For these reasons, we deny the petition for review.




                                                5
