Immigration – Subject-matter Jurisdiction

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7^th Circuit Court of Appeals

Case Name: Mario Ortiz-Santiago

Case No.: 18-3251

Officials: WOOD, Chief Judge, and SCUDDER and ST. EVE, Circuit Judges.

Focus: Immigration – Subject-matter Jurisdiction

Jurisdiction, the Supreme Court has reminded us, “is a word of many, too many meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996). Petitioner Mario Ortiz-Santiago, who is seeking to avoid removal from this country, now asks us to wade into those murky waters. He contends that because the Notice to Appear (“Notice”) sent to him by the Department of Homeland Security (“DHS”) did not have the statutorily required time-and date information for his removal hearing, subject-matter jurisdiction never vested in the Immigration Court. This flaw, he reasons, rendered the Notice so defective that it did not suffice to trigger the Immigration Court’s jurisdiction over his case. Because he never was properly placed in removal proceedings, he concludes, the order of removal that the Immigration Judge entered and the Board of Immigration Appeals affirmed must be vacated.

Ortiz-Santiago is correct that the Notice was procedurally defective, but he overstates the problem. The requirement that a Notice include, within its four corners, the time, date, and place of the removal proceeding is not “jurisdictional” in nature. It is instead the agency’s version of a claim-processing rule, violations of which can be forfeited if an objection is not raised in a timely manner. We thus hold, as have the Second, Sixth, and Ninth Circuits, that an Immigration Court’s jurisdiction is secure despite the omission in a Notice of time and place information. See Banegas Gomez v. Barr, — F.3d —, No. 15-3269, 2019 WL 1768914, at *6–8 (2d Cir. April 23, 2019); Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018). Although we take a different path from those circuits to reach this conclusion, we agree that nothing in Pereira v. Sessions, 138 S. Ct. 2105 (2018), requires a different result. See also Villa Serrano v. Barr, — F.3d —, No. 18-2886, 2019 WL 2052354, at *4 (7th Cir. May 9, 2019) (noting but not deciding this issue). We therefore deny Ortiz-Santiago’s petition for review.

Petition for review denied

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.