NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-2348 _____________ ELIASAR LOPEZ-AYALA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _____________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A070-885-119) Immigration Judge: Ramin Rastegar _____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 17, 2020 _____________ Before: CHAGARES, SCIRICA, and ROTH, Circuit Judges. (Filed: August 11, 2020) _____________________ OPINION ∗ _____________________ ∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. CHAGARES, Circuit Judge. Eliasar Lopez-Ayala was ordered deported in absentia twenty-five years ago. He moved to reopen his deportation proceedings in 2019, contending that the immigration court never obtained jurisdiction over him. The Board of Immigration Appeals (“BIA”) denied the motion to reopen, after both determining that the deportation proceedings were properly commenced and declining to exercise its discretionary authority to reopen the proceedings sua sponte. Because the BIA did not err in determining that the deportation proceedings were properly commenced, we will deny his petition for review in part. And because we lack jurisdiction to review the BIA’s declination to exercise its discretion to reopen sua sponte, we will dismiss his petition in part. I. We write for the parties and so recount only the facts necessary to our decision. Lopez-Ayala was ordered removed in absentia by an immigration judge in 1995. In 2019, Lopez-Ayala moved for a third time to reopen his deportation proceedings, contending that because his Order to Show Cause failed to state the date and time of his hearing, he had not received proper notice of the proceedings, and, therefore, the immigration court never acquired jurisdiction over him. In the alternative, he requested that the BIA exercise its sua sponte authority to reopen the proceedings. After first determining that Lopez-Ayala’s motion was number and time-barred, the BIA found that the immigration court had in fact obtained jurisdiction over Lopez- Ayala, because he was personally served with the Order to Show Cause and a subsequent notice with the date, time, and location of the hearing was delivered to his last address of 2 record. On this basis, the BIA concluded that the deportation proceedings had been properly commenced. The BIA also declined to grant reopening sua sponte. This timely appeal followed. II. 1 Lopez-Ayala reads the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), to mean that the immigration court never obtained jurisdiction over him. We disagree. In Pereira, the Court held that “[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under [8 U.S.C. §] 1229(a)’ and therefore does not trigger the stop-time rule” under that statute. Id. at 2110. We have since held that Pereira does not extend outside that context to challenges to an immigration court’s jurisdiction, raised in a motion to reopen or for remand. See Nkomo v. Att’y Gen., ...
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