Case: 21-68, 04/18/2023, DktEntry: 35.1, Page 1 of 4 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARIA ELIZABETH CACERES No. 21-68 AGUILAR; ALEJANDRA YACEL AGUILERA CACERES, Agency Nos. A209-439-478 A209-439-479 Petitioners, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 13, 2023** San Francisco, California Before: S.R. THOMAS and KOH, Circuit Judges, and RAKOFF, *** District Judge. Maria Elizabeth Caceres Aguilar (“Caceres Aguilar”) and her minor daughter (collectively, “petitioners”), natives and citizens of El Salvador, * 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. Case: 21-68, 04/18/2023, DktEntry: 35.1, Page 2 of 4 petition this court for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the denial by an immigration judge (“IJ”) of their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. “Where the BIA conducts its own review of the evidence and law, rather than adopting the IJ’s decision, our review is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.” Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020) (quoting Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012)). We deny the petition in part and grant and remand in part for proceedings consistent with this disposition. 1 1. The absence of time and date information in the notice to appear (“NTA”) did not divest the immigration court of jurisdiction. See United States v. Bastide-Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc). Because the undated NTA was supplemented with a notice of hearing that complied with 8 C.F.R. § 1003.14(a), the immigration court had jurisdiction. See Bastide- Hernandez, 39 F.4th at 1193. We thus deny this aspect of the petition for review. 2. The defective NTA did, however, affect petitioners’ eligibility for voluntary departure. See Posos-Sanchez v. Garland, 3 F.4th 1176, 1185 (9th Cir. 2021) (“[A] noncitizen builds up physical-presence time under [8 U.S.C.] 1 In light of our ruling, the motion to remand, Dkt. 33, is denied as moot. 2 Case: 21-68, 04/18/2023, DktEntry: 35.1, Page 3 of 4 § 1229c(b)(1)(A) from the moment he enters the United States until the moment he receives a single document that provides him with all the information Congress listed in 8 U.S.C. § 1229(a).”). The IJ denied petitioners’ application for voluntary departure solely on the basis of inadequate physical presence. Although petitioners did not challenge this determination before the BIA, doing so would have been futile. See Vasquez-Rodriguez v. Garland, …
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