Nelda Pena-Portillo and her minor daughter, citizens of El Salvador, sought protection from removal by applying for asylum, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals denied these applications. The petitioners then filed a petition for review in the Ninth Circuit challenging the BIA's decision. Their petition raised three primary issues: the denial of their substantive protection claims, a jurisdictional argument that the immigration court lacked authority because the initial Notice to Appear did not include the time and location of the hearing, and a claim that their attorney provided ineffective assistance. The government, represented by the Attorney General, opposed the petition.
The panel issued a unanimous memorandum decision denying the petition based on procedural failures. First, the court held that issues not raised or supported by argument in the opening brief are forfeited. Because the petitioners failed to address the agency's merits-based denials of their asylum, withholding, and CAT claims, the court denied the petition on those grounds. Second, regarding the jurisdictional challenge, the court found the claim unexhausted because the petitioners did not raise the issue before the BIA. Furthermore, the court noted that even if the claim had been exhausted, it would be foreclosed by the en banc decision in United States v. Bastide-Hernandez, which held that an NTA's failure to include time and date information does not deprive the immigration court of subject matter jurisdiction. Third, the court declined to review the ineffective assistance of counsel claim because it was not properly presented to the BIA through a motion to reopen, a requirement for exhausting such claims.
The petition for review is denied, and the removal order issued by the BIA stands. The motion to stay removal is also denied, though the temporary stay remains in effect until the mandate issues. The decision reinforces the strict procedural requirements for immigration appeals, requiring petitioners to fully argue merits in their opening briefs and to exhaust jurisdictional and ineffective assistance claims before the BIA.
Podcast (federal-narrative-summaries): Play in new window | Download