Sotero Mejia Romero v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of a Decision of…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-3705
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SOTERO MEJIA ROMERO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(A075-294-346)
Immigration Judge: John P. Ellington
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 23, 2021
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Before: HARDIMAN, GREENAWAY, JR., and BIBAS,
Circuit Judges.
(Opinion Filed: May 5, 2021)

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Marcia B. Ibrahim
Law Office of Marcia Binder Ibrahim
222 South Broad Street
Lansdale, PA 19446
Counsel for Petitioner
Jeffrey Bossert Clark
Emily Anne Radford
David Schor
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
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OPINION
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GREENAWAY, JR., Circuit Judge.
Sotero Mejia Romero seeks review of the order of the
Board of Immigration Appeals (“BIA”) dismissing his appeal
of an Immigration Judge’s (“IJ”) decision denying his
application for withholding of removal. In addition to adopting
and affirming the IJ’s decision denying withholding of
removal, the BIA also rejected Mejia Romero’s challenge to
the IJ’s jurisdiction over his case. Before us, Mejia Romero
only appeals that jurisdictional issue. Finding no jurisdictional
defect, we will deny the petition for review.

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A. Background
On September 25, 1997, Mejia Romero, a native and
citizen of Guatemala, was granted voluntary departure after
having entered the United States without being admitted or
paroled. When Mejia Romero failed to leave the United States
as provided in that order, a removal order was entered on
March 25, 1998. That order was executed on May 27, 2011,
when Mejia Romero was removed from the United States to
his home country of Guatemala. He returned almost
immediately to the United States. When he was taken into
custody on May 17, 2018, the Department of Homeland
Security (“DHS”) notified Mejia Romero of its intent to
reinstate his prior removal order, pursuant to 8 U.S.C.
§ 1231(a)(5).
In response, Mejia Romero “express[ed] a fear of
returning to the country of removal,” 8 C.F.R. § 208.31(a), and
as required he was referred to an asylum officer for a
reasonable fear interview, 8 C.F.R. § 208.31(b). The purpose
of the reasonable fear interview is to give the alien an
opportunity to “establish[] a reasonable possibility that he or
she would be persecuted on account of his or her race, religion,
nationality, membership in a particular social group or political
opinion, or a reasonable possibility that he or she would be
tortured in the country of removal.”1 8 C.F.R. § 208.31(c).
1 Faced only with a jurisdictional challenge, we need not
discuss the facts underlying Mejia Romero’s fear of
persecution or torture.

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Finding that Mejia Romero had “a reasonable fear of
persecution or torture,” the asylum officer referred the matter
to an IJ, as required by 8 C.F.R. § 208.31(e). A.R. 455. The
Notice of Referral to Immigration Judge2 provided the place of
the hearing before the IJ but noted that the date and time were
“To Be Determined.” A.R. 456. However, Mejia Romero
subsequently received a Notice of Withdrawal-Only Hearing
that included the date, time, and place information. After his
hearing, the IJ denied the application for withholding of
removal. Mejia Romero appealed to the BIA.
Before the BIA, Mejia Romero raised several
arguments, including a challenge to the IJ’s jurisdiction. Citing
Pereira v. Sessions, 138 S. Ct. 2105 (2018), Mejia Romero
argued that “[a] notice of referral to [an] immigration judge is
an analogous document to a notice to appear and must contain
a location and a date and time for a removal hearing in order to
create jurisdiction for an immigration court.” A.R. 14. He
further argued “[a]ccording to the plain language of the
regulations in question here, jurisdiction of an immigration
court ‘vests’ only ‘when a charging document is filed with the
Immigration Court.’” A.R. 15 (citing 8 C.F.R. § 1003.143). A
Notice of Referral to Immigration Judge is a charging
2 The Notice of Referral to Immigration Judge is a form
I-863.
3 In part, § 1003.14(a) provides that “[j]urisdiction
vests, and proceedings before an Immigration Judge
commence, when a charging document is filed with the
Immigration Court by the Service.”

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document. 8 C.F.R. § 1003.13.4
The BIA rejected Mejia Romero’s jurisdictional
challenge for three reasons. First, the BIA noted that it lacked
the authority to grant the relief Mejia Romero sought –
termination of the proceedings – in a withholding proceeding.
Second, the BIA observed “that Pereira applies to the statutory
scheme for removal proceedings, not withholding-only
proceedings as are at issue here.” App. 25. Third, even if
Pereira “could apply in some context to withholding-only
proceedings,” the BIA’s prior decision in Matter of Bermudez-
Cota, 27 I&N Dec. 441 (B.I.A. 2018), and our decision in
Nkomo v. Att’y Gen., 930 F.3d 129 (3d Cir. 2019), cert. denied
sub nom. Nkomo v. Barr, 140 S. Ct. 2740 (2020), foreclosed
his arguments. Id. at 26.
Mejia Romero filed a timely petition for review.
B. Discussion
The BIA had jurisdiction pursuant to 8 C.F.R.
§§ 1003.1(b)(3) and 1208.31(e). We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(1). “Ordinarily, Courts of
Appeals review decisions of the Board of Immigration Appeals
(BIA), and not those of an IJ.” Camara v. Att’y Gen., 580 F.3d
4 Pursuant to 8 C.F.R. § 1003.13, “[c]harging document
means the written instrument which initiates a proceeding
before an Immigration Judge. . . . For proceedings initiated
after April 1, 1997, these documents include a Notice to
Appear, a Notice of Referral to Immigration Judge, and a
Notice of Intention to Rescind and Request for Hearing by
Alien.”

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196, 201 (3d Cir. 2009) (quoting Gao v. Ashcroft, 299 F.3d
266, 271 (3d Cir. 2002)). We review the IJ’s opinion only
when “the BIA has substantially relied on that opinion.” Id.
Because the BIA did not summarily affirm the IJ’s order but
instead issued a separate opinion, we review the BIA’s
disposition and look to the IJ’s ruling only insofar as the BIA
deferred to it. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d
Cir. 2006).
“Because [the] jurisdictional challenge is a purely legal
one, our review is plenary.” Nkomo, 930 F.3d at 132 (citing
Ku v. Att’y Gen., 912 F.3d 133, 138 (3d Cir. 2019)).
Before us, Mejia Romero renews his Pereira-based
argument. He asserts that “the IJ and the BIA should not
initiate withholding only proceedings unless the charging
document (i.e., Form I-863, Notice of Referral to Immigration
Judge) contains the information required by the regulations
including the date and time of the first hearing.” Pet’r’s Br. 9.
Citing to Pereira, he further argues that “[a] notice of referral
to [an] immigration judge is an analogous document to a notice
to appear and must contain a location and a date and time for a
removal hearing in order to create jurisdiction for an
immigration court.”5 Id. at 11 (citing Pereira, 138 S. Ct. at
5 While Mejia Romero asserts that a Notice to Appear
and a Notice of Referral are “analogous document[s],” nothing
in the statutes or regulations indicates they have analogous
requirements, beyond both of them being defined as charging
documents in 8 C.F.R. § 1003.13. Indeed, unlike a Notice to
Appear, the requisite contents of which are set forth in both a
statute and a regulation, no statute or regulation defines the
contents of a Notice of Referral.

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2110). Since the Notice of Referral Mejia Romero received
lacked date and time information, Mejia Romero asserts that
neither the IJ nor the BIA had jurisdiction over his case.
Mejia Romero’s arguments misread both the
regulations and the holding in Pereira. The regulations Mejia
Romero cites – 8 C.F.R. § 208.2(c)(3)(ii) and § 1208.2(c)(3)(ii)
– do not require that the time and place be included in a Notice
of Referral to Immigration Judge. Instead, those regulations
state as to “[n]otice of hearing procedures . . . . The alien will
be provided with notice of the time and place of the
proceeding.” 8 C.F.R. § 208.2(c)(3)(ii); 8 C.F.R.
§ 1208.2(c)(3)(ii). Mejia Romero’s Notice of Withholding-
Only Hearing included that information. Since that notice
included the information required by the regulations, no
violation of the regulations occurred.
To the extent Mejia Romero’s jurisdictional challenge
is premised on the argument that Pereira required that, in order
to vest jurisdiction in an IJ pursuant to 8 C.F.R. § 1003.14, a
Notice to Appear – the charging document involved in that case
– must include the location, date, and time information of the
initial hearing before the IJ, our decision in Nkomo squarely
rejected it. Nkomo, 930 F.3d at 133-34.
In Nkomo, we refused to extend Pereira’s narrow
holding “beyond the § 1229b(d)(1)(A) stop-time rule context.”
Id. at 133. We explained that § 1003.14, the jurisdiction-
vesting regulation, did not cross-reference 8 U.S.C. § 1229(a),
which required a “notice to appear” to include time and place
information. Id. And “time and place are conspicuously
absent” from the rule that sets out what must be included in a
Notice to Appear under § 1003.14. Id. at 134; see 8 C.F.R.
§ 1003.15(b), (c).

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Here, the charging document enumerated in 8 C.F.R.
§ 1003.13 commencing Mejia Romero’s case before the IJ was
the Notice of Referral to the Immigration Judge, rather than the
Notice to Appear involved in Nkomo. And, as discussed above,
no regulation specifies the content of a Notice of Referral,
much less requires that it contain time and place information.
Yet, Mejia Romero insists that because a Notice of Referral to
the Immigration Judge is analogous to a Notice to Appear,
Pereira dictates that the IJ lacked jurisdiction over his removal
proceedings where the Notice of Referral did not include the
date and time information. We have already held in Nkomo
“that Pereira’s holding is not readily transferable to 8 C.F.R. §
1003.14.” Nkomo, 930 F.3d at 134. We reaffirm that position
here. We therefore now hold that the IJ is not deprived of
jurisdiction under § 1003.14 over removal proceedings
commenced by a Notice of Referral to an Immigration Judge
lacking time and place information.
C. Conclusion
Finding no support in the statutes, regulations, or case
law for Mejia Romero’s arguments, we will deny the petition
for review.

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