In the United States Court of Appeals For the Seventh Circuit ____________________ No. 19-1633 HENRIKAS MALUKAS, Petitioner, v. WILLIAM P. BARR, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A72-569-248 ____________________ ARGUED SEPTEMBER 23, 2019 — DECIDED OCTOBER 15, 2019 ____________________ Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit Judges. EASTERBROOK, Circuit Judge. Henrikas Malukas, a citizen of Lithuania, entered the United States in 1992 on a tourist visa and did not leave when it expired. In 1995 he was con- victed of several weapons-related felonies and sentenced to 52 months in prison. While he was imprisoned, immigration officials began removal proceedings. Malukas applied for discretionary relief as the spouse of a U.S. citizen, but the 2 No. 19-1633 immigration judge (and later the Board of Immigration Ap- peals) concluded that his criminal conduct outweighed whatever equities his family and financial ties to the United States supplied. The Board’s final order was entered in July 2003, and Ma- lukas did not seek judicial review. He did file a timely mo- tion for reconsideration, arguing that his criminal conduct should not have been deemed such a high obstacle to relief. The Board denied that motion in September 2003, and again Malukas did not seek judicial review. Malukas remained in the United States, in part because he had allowed his Lithuanian passport to expire and Lithu- ania would not issue new travel documents. In 2018 Malu- kas filed with the Board a second motion to reconsider, and an initial motion to reopen, contending that the removal or- der is invalid because the proceeding began with a “Notice to Appear” that did not include a date and time for the hear- ing. See Pereira v. Sessions, 138 S. Ct. 2105 (2018). The date and time were furnished in a later document, and Malukas did not argue at his removal hearing that he lacked adequate notice. Still, he maintained, the defect on the original Notice to Appear deprived the immigration judge of jurisdiction and vitiated the removal order. The motion also contended that he had been rehabilitated by the passage of time, so that the equities now weighed in his favor, and that Lithuania’s failure to accept his return also justifies discretionary relief. The Board denied this motion as time-and-number barred. (Only one motion to reconsider is allowed, and the time limit for a motion to reopen is 90 days. 8 U.S.C. §1229a(c)(6)(A), (c)(7)(C)(i); 8 C.F.R. §1003.2(b)(2), (c)(2).) The Board added No. 19-1633 3 that a defect in a Notice to Appear does not affect jurisdic- tion. That aspect of the Board’s ruling has since been con- firmed by this court. Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019). The BIA’s reasoning differs from that of Ortiz- Santiago, but the bokom line is the same. This means that the Board did not commit a legal error that would permit judi- cial review despite the fact that the motion to reopen is ...
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