David Castillo-Gomez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID CASTILLO-GOMEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1049
Agency No. A213-082-400
MEMORANDUM*
On Petition for Review of Order of the
Board of Immigration Appeals
Submitted October 17, 2023**
Pasadena, California
Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF, District
Judge.***
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
FILED
OCT 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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David Castillo-Gomez is a native and citizen of Mexico who entered the
United States without inspection in 2002. On September 5, 2017, the Department of
Homeland Security (DHS) served Castillo-Gomez with a Notice to Appear in
immigration court, charging him as removable. The Notice to Appear did not list the
location of the immigration court or the date and time of the hearing. Instead, it listed
the location as “to be decided” and the time and date as “[t]o be set.” Three days
later, however, DHS mailed Castillo-Gomez a Notice of Hearing that supplied the
previously missing information. Castillo-Gomez then appeared at the hearing with
counsel. He conceded removability but applied for cancellation of removal under 8
U.S.C. § 1229b, arguing that his departure would be a significant hardship for his
three children who are U.S. citizens.
An immigration judge (IJ) denied Castillo-Gomez’s application for
cancellation of removal for two independent reasons, one of which was that Castillo-
Gomez did not show that separation of his family, standing alone, imposed an
“exceptional and extremely unusual hardship.” 8 U.S.C. § 1229b(b)(1)(D). The
Board of Immigration Appeals (BIA) affirmed the IJ’s reasoning on that ground and
dismissed Castillo-Gomez’s appeal. This court dismissed Castillo-Gomez’s petition
for review of that order because the court lacked jurisdiction to review the factual
issue presented. See Castillo-Gomez v. Garland, No. 21-71000, Dkt. No. 16 (9th Cir.
Jan. 20, 2022).

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At no point in any of the above proceedings did Castillo-Gomez challenge the
sufficiency of his initial Notice to Appear. After this court’s dismissal, however,
Castillo-Gomez moved the BIA to reopen his removal proceedings because the first
Notice to Appear did not inform him of the location, time, and date of his hearing.
He argued that because a defective Notice to Appear could not validly begin removal
proceedings, the immigration court lacked jurisdiction and his removal proceedings
had to be terminated. The BIA denied the motion, explaining based on its own
precedent and this court’s precedent that an insufficient Notice to Appear does not
deprive an IJ of subject matter jurisdiction over removal proceedings. See Aguilar
Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (holding that a Notice to Appear’s
“lack of time, date, and place . . . did not deprive the immigration court of
jurisdiction”). The BIA also rejected Castillo-Gomez’s reliance on Singh v. Garland,
24 F.4th 1315 (9th Cir. 2022), because that case touched only on in absentia removal
proceedings, which Castillo-Gomez’s proceedings were not. Castillo-Gomez timely
petitioned for review.
We review the denial of a motion to reopen for abuse of discretion, while
reviewing “purely legal questions de novo.” Id. at 1317. Exercising that review, we
now deny Castillo-Gomez’s petition.
Although Castillo-Gomez no longer challenges the BIA’s legal conclusion
that a defective Notice to Appear does not implicate an immigration court’s subject

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matter jurisdiction, he argues that the BIA nevertheless erred by failing to reopen
and terminate his removal proceedings under Singh v. Garland, 24 F.4th 1315 (9th
Cir. 2022). In Singh, this Court held that a Notice to Appear must be “a single
document that include[s] all the information set forth in 8 U.S.C. § 1229(a)(1),
including the time and date of the removal proceedings.” Id. at 1320. And in that
case, the Court rescinded the petitioner’s in absentia removal order “[b]ecause the
government did not provide Singh with statutorily compliant notice before his
removal hearing.” Id.
The problem with Castillo-Gomez’s argument, as the BIA rightly recognized,
is that Singh only addresses “in absentia removal orders.” Id. at 1318–20. The
decision in Singh relied on a statutory provision expressly prohibiting removal in
absentia when a noncitizen does not receive the time and location information
“required under . . . section 1229(a).” Id. at 1319 (quoting 8 U.S.C.
§ 1229a(b)(5)(A)). But that provision does not apply to removals that are not in
absentia. See 8 U.S.C. § 1229a(b)(5)(A). And Singh makes no mention of removal
proceedings in which a petitioner appeared and actively participated, as Castillo-
Gomez did here with the assistance of counsel. See id. at 1317–20. Castillo-Gomez
failed to acknowledge that distinction before the BIA or show why Singh entitles
him to relief. The BIA therefore did not abuse its discretion in denying Castillo-
Gomez’s motion to reopen.

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Castillo-Gomez also separately asks the Court to remand for the BIA to
reconsider his motion to reopen under Matter of Fernandes, 28 I. & N. Dec. 605
(B.I.A. 2022), which was decided after this petition for review was filed but before
Castillo-Gomez submitted his opening brief.1 But Matter of Fernandes only requires
a remedy for petitioners who “made a timely objection to [a] noncompliant notice to
appear.” 28 I. & N. Dec. at 611. And, according to Matter of Fernandes, such an
objection is “timely if it is raised prior to the closing of pleadings before the
Immigration Judge.” Id. at 610–11. Here, Castillo-Gomez made no objection until
after the BIA had entered a final order of removal. He therefore fails to explain how
Matter of Fernandes could offer him relief.
PETITION DENIED.
1 The Government argues that the Court lacks jurisdiction to consider this argument
under 8 U.S.C. § 1252(d)(1) because Castillo-Gomez failed to exhaust it before the
BIA. But the Supreme Court recently clarified that “§ 1252(d)(1)’s exhaustion
requirement is not jurisdictional.” Santos-Zacaria v. Garland, 598 U.S. 411, 423
(2023). And although the exhaustion requirement is still “mandatory” when not
waived or forfeited, id. at 421, 423, a petitioner need only exhaust “remedies
available . . . as of right,” 8 U.S.C. § 1252(d)(1). “Because [BIA] reconsideration
(like reopening) is a discretionary form of review, it is not available to the noncitizen
‘as of right.’” Santos-Zacaria, 598 U.S. at 425. “Section 1252(d)(1) therefore does
not require a noncitizen to pursue it.” Id. Accordingly, neither a jurisdictional
prerequisite nor a mandatory claim-processing rule bars this Court from considering
Castillo-Gomez’s argument for remand and reconsideration.

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