Denial of motion to reopen removal proceedings; Notice; Pereira v Sessions; Niz-Chavez v Garland; One motion to reopen limit; 8 USC § 1229a(c)(7)(A); Exceptions; 8 CFR § 1003.2(c)(3)(i)–(iv); Whether a Notice to Appear (NTA) that is deficient under Pereira & Niz-Chavez is also per se deficient for the purposes of notice; Whether the immigration court had jurisdiction; § 1003.14(a); Sua sponte reopening; Rais v Holder; Department of Homeland Security (DHS); Immigration judge (IJ); Board of Immigration Appeals (BIA)

The court denied petitioner-Vargas-Rodriguez’s petition for review of the BIA’s denial of her third motion to reopen her removal proceedings, concluding that the NTA she received was not defective under either Pereira or Niz-Chavez, and that the immigration court had jurisdiction over her case. When she did not appear at her removal hearing, the IJ conducted it in absentia and ordered her removal to Honduras. She acknowledged that she had “filed three motions to reopen, all of them past the 90-day time limit.” However, she asserted “the BIA abused its discretion by concluding that her latest motion was time- and number-barred because those bars ‘do not apply when the alien asserts she failed to receive proper notice of the in absentia hearing.’” She contended “the BIA was required to address her arguments in light of the Supreme Court’s decisions in Pereira and Niz-Chavez.” The court noted that it had not yet ruled in a published opinion on whether a petitioner may file multiple motions to reopen based on lack of notice. But it concluded it did not have to answer that question here because even if Vargas-Rodriguez was permitted to file multiple motions to reopen on this basis, any BIA error would be harmless because her claims based on Pereira and Niz-Chavez were meritless. These cases concerned whether the deficiency of an NTA could trigger the stop-time rule in cases involving eligibility for cancellation-of-removal. Vargas-Rodriguez asserted “an NTA that is deficient under Pereira and Niz-Chavez is also per se deficient for the purposes of notice.” The court found it unnecessary to consider this argument because the NTA she received “was not defective under either Supreme Court decision.” Just because the government later changed the date and time of the hearing did not make the NTA defective. The court held that she did not meet her burden of showing that she was not at fault for failing to appear. Relying on § 1003.14(a), Vargas-Rodriguez also argued that the immigration court lacked jurisdiction in her case because the DHS’s failure to timely begin the proceedings, “‘stripped the [8/9/05] NTA of its ability and DHS of its authority to initiate her proceedings.’” However, the court explained that § 1003.14(a) “specifies that jurisdiction vests when DHS files a ‘charging document’ with the immigration court.” In this case, the DHS filed the NTA, which constitutes a charging document. It noted it “has held that even an NTA that is defective under Pereira is sufficient to vest jurisdiction in the immigration court under” § 1003.14(a). Finally, the court rejected her claim the BIA erred in not sua sponte reopening her proceedings.