NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 20-1437 ______________ JOSE HERNANDEZ-CHAVEZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ ON PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS (Agency No. A206-907-729) Immigration Judge: Steven A. Morley ______________ Submitted under Third Circuit L.A.R. 34.1(a) December 17, 2020 ______________ Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges. (Filed: January 20, 2021) ______________ OPINION ______________ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SHWARTZ, Circuit Judge. Jose Hernandez-Chavez petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) denying his application for cancellation of removal and protection under the Convention Against Torture (“CAT”). For the reasons set forth below, we will dismiss the petition. I Hernandez-Chavez, a native and citizen of Mexico, entered the United States in February 2000 without inspection. The Department of Homeland Security initiated removal proceedings against Hernandez-Chavez by filing and serving him with a Notice to Appear (“NTA”) in the Immigration Court. The NTA charged Hernandez-Chavez under 8 U.S.C. § 1182(a)(6)(A)(i) as an “alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.” A.R. 812. The NTA did not include a date and time to appear before the Immigration Court, noting only that those details were “[t]o be set.” A.R. 812. Hernandez-Chavez conceded removability and filed applications for, among other things, cancellation of removal and protection under the CAT. Hernandez-Chavez never contested the validity of the NTA before the IJ. The IJ denied Hernandez-Chavez’s cancellation of removal claim under 8 U.S.C. § 1229b, reasoning that he did not establish that his removal would result in an exceptional and extremely unusual hardship to his sole qualifying relative, his daughter, 2 as he is not her legal guardian and sees her only twice a month. The IJ also denied Hernandez-Chavez’s CAT claim because he failed to show “that it is more likely than not that he would be subjected to harm if returned to Mexico.” A.R. 85Hernandez-Chavez appealed to the BIA. While Hernandez-Chavez’s appeal to the BIA was pending, the Supreme Court held that an NTA must “include the time and place of the removal proceedings” to trigger the “stop-time rule” for cancellation of removal.1 Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018).2 Seeking to broaden that case’s application, Hernandez-Chavez argued to the BIA that the IJ lacked jurisdiction over the removal proceedings because the NTA was invalid under Pereira. He also argued that the IJ erred in finding him ineligible for cancellation of removal and CAT relief. The BIA dismissed the appeal. The BIA concluded that Hernandez-Chavez’s Pereira arguments were foreclosed by Nkomo v. Attorney General of the United States, 930 F.3d 129 (3d Cir. 2019), and Matter of Bermudez-Cota, 27 I. & ...
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