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jurisdictionprecedenthearingaffidavitmotion

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Franjul-Soto v. Barr

Facts

Rafael Emilio Franjul-Soto, a Dominican Republic citizen, entered the U.S. without inspection in 1988. He was served a Notice to Appear in 2016, which charged him with removability. After attending all removal hearings, the IJ sustained the charge and denied his application for cancellation of removal. While his appeal was pending, Franjul-Soto filed a VAWA self-petition claiming abuse by his U.S. citizen spouse. The BIA dismissed his appeal and later denied his motion to reopen based on the self-petition.

Franjul-Soto was born in the Dominican Republic in 1965 and entered the United States without inspection in 1988. On April 4, 2016, the United States Department of Homeland Security ("DHS") served Franjul-Soto with a Notice to Appear, which charged him with being removable from the United States under 8 U.S.C. 1182(a)(6)(A)(i) .

Issue

Did the IJ have jurisdiction to adjudicate the alien's removability despite the omission of the initial hearing date in the notice to appear, and did the BIA err in denying the motion to reopen based on the VAWA self-petition?

Franjul-Soto first argues [**3] that the IJ lacked jurisdiction to adjudicate his removability — and thus that his removal order must be vacated — because the Notice to Appear was deficient in omitting the date and time of his initial removal hearing.

Rule

The omission of the initial hearing date and time in a notice to appear does not deprive the immigration court of jurisdiction over a removal proceeding. A motion to reopen must be supported by evidentiary materials, and a prima facie case must be established for the relief sought.

But, our precedent forecloses the argument that the IJ therefore lacked jurisdiction to issue the order of removal. See United States v. Mendoza , 963 F.3d 158, 161 (1st Cir. 2020) ( rejecting "the contention that the omission of the initial hearing date and time in a notice to appear deprives the immigration court of jurisdiction over a removal proceeding" (citing Goncalves Pontes v. Barr , 938 F.3d 1 (1st Cir. 2019))) ; see also In re Montreal Me. & Atl. Ry., Ltd. , 953 F.3d 29, 42 (1st Cir. 2020) ( "[N]ewly constituted panels ordinarily are constrained by prior panel decisions directly (or even closely) on point." (quoting United States v. Holloway , 630 F.3d 252, 258 (1st Cir. 2011))) .

Analysis

The court found that the IJ had jurisdiction because precedent established that the omission did not affect jurisdiction. Regarding the BIA's denial of the motion to reopen, the court noted that Franjul-Soto's affidavit lacked sufficient detail and corroborating evidence to establish a prima facie case of abuse, which is necessary for the VAWA self-petition.

The court found that the IJ had jurisdiction because precedent established that the omission did not affect jurisdiction. Regarding the BIA's denial of the motion to reopen, the court noted that Franjul-Soto's affidavit lacked sufficient detail and corroborating evidence to establish a prima facie case of abuse, which is necessary for the VAWA self-petition.

Conclusion

The court denied the petition for review, affirming the BIA's decision.

The petition for [**10] review is denied.

Who won?

The government prevailed because the court upheld the BIA's decision, finding that the alien did not provide sufficient evidence to support his claims.

The government prevailed because the court upheld the BIA's decision, finding that the alien did not provide sufficient evidence to support his claims.

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