Case: 18-15094 Date Filed: 11/13/2019 Page: 1 of 12 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-15094 Non-Argument Calendar ________________________ Agency No. A213-044-101 MARLON DIONIRES SOPON-MENDOZA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (November 13, 2019) Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges. PER CURIAM: Case: 18-15094 Date Filed: 11/13/2019 Page: 2 of 12 Marlon Dionires Sopon Mendoza petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an Immigration Judge’s (“IJ”) decision denying his applications for cancellation of removal and voluntary departure and ordering his removal to Guatemala. Sopon Mendoza presents two arguments in his petition for review. First, relying on the Supreme Court’s recent decision in Pereira v. Sessions, ___ U.S. ___, 138 S. Ct. 2105, 2116 (2018), he contends that the IJ and the BIA lacked jurisdiction because he was never served with a notice to appear specifying the time and place of his initial removal hearing. Second, he maintains that the BIA wrongly concluded that he had waived his challenge to the denial of voluntary departure. After careful review, we deny the petition as to the first argument and grant the petition as to the second argument. I. On March 18, 2018, Sopon Mendoza, a native and citizen of Guatemala, was stopped for a traffic violation and then taken into custody by the U.S. Border Patrol. He was served with a notice to appear charging him as removable for being present in the United States without having been admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). The notice to appear ordered Sopon Mendoza to appear before an IJ at a date, time, and location “to be set.” A notice of hearing dated March 23 scheduled a hearing for March 27. The document, which Sopon Mendoza maintains he never received, reflects that it was served on “Alien c/o Custodial Officer.” 2 Case: 18-15094 Date Filed: 11/13/2019 Page: 3 of 12 Sopon Mendoza filed a motion for bond and appeared at the March 27 hearing represented by counsel. The IJ denied bond and then granted a continuance. Sopon Mendoza applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1) and, alternatively, for voluntary departure under 8 U.S.C. § 1229c(b). The IJ held a merits hearing and then denied cancellation of removal, concluding that he had not established the necessary “good moral character” or exceptional and extremely unusual hardship to a qualifying relative. And because he lacked good moral character, according to the IJ, he was also ineligible for voluntary departure. The IJ therefore ordered Sopon Mendoza removed to Guatemala. Sopon Mendoza timely appealed the IJ’s decision to the BIA. He presented five arguments in his brief to the BIA: (1) the IJ lacked jurisdiction because the notice to appear did not specify the time and place of his initial removal hearing; (2) the IJ improperly rejected a motion for recusal for ...
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