United States v. Jose Vicente Lira-Ramirez, 2020 WL 1071033 (10th Cir. March 6, 2020) (KS):

The Tenth affirms the denial of Mr. Lira-Ramirez’s motion to dismiss. He was indicted on a charge of illegally reentering in violation of 8 U.S.C. § 1326(a) and tried to make a jurisdictional challenge, arguing that the notice to appear in his prior removal did not state the date and time of his removal proceeding. The defective notice to appear, he argued, meant that the immigration judge at the prior removal proceeding lacked jurisdiction to enter the removal order. The panel says that they have precedent that forecloses this argument (Lopez-Munoz v. Barr, 941 F.3d 1013 + Martinez-Perez v. Barr 2020 WL 253553). In those cases, the Tenth decided that even if the notice to appear was defective, it didn’t matter—an alleged defect in the notice to appear is not jurisdictional.

Despite saying that his argument is foreclosed by precedent, the Court then rejects a “new argument” made by Mr. Lira-Ramirez’ counsel. In 1996, the procedure for starting a removal proceeding changed requiring only one document—a notice to appear. Two documents were previously required (show cause order and notice of hearing). Because the 1996 law did not take immediate effect, there was a transitional provision that covered removals during this time. It allowed commencement of proceedings under either mechanism. Mr. Lira-Ramirez tried to seize on the language of the transitional provision, saying it conferred jurisdiction to the immigration judge. The panel says no—the transitional provision does not clearly show that 8 U.S.C. § 1229 is jurisdictional as § 1229 itself says nothing about jurisdiction or an immigration judge’s power to act.