Case: 18-14393 Date Filed: 11/04/2019 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-14393 Non-Argument Calendar ________________________ Agency No. A097-959-133 LINA ASTRID ALVAREZ PEMBERTHY, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (November 4, 2019) Before MARCUS, ROSENBAUM, and EDMONDSON, Circuit Judges. Case: 18-14393 Date Filed: 11/04/2019 Page: 2 of 5 PER CURIAM: Lina Astrid Alvarez Pemberthy (“Petitioner”), a native and citizen of Colombia, petitions for review of the Board of Immigration Appeal’s (“BIA’s”) final order denying Petitioner’s motion to reopen and to terminate her removal proceedings. Briefly stated, Petitioner contends that her defective notice-to-appear (“NTA”) deprived the Immigration Judge (“IJ”) and the BIA of subject-matter jurisdiction over her removal proceedings. No reversible error has been shown; we deny the petition in part and dismiss it in part. In 2004, the Immigration and Naturalization Service issued Petitioner an NTA charging her as removable for being an alien without a valid entry or travel document and for having attempted to enter the United States with a fraudulent visa. The NTA ordered Petitioner to appear before an IJ in Pompano Beach, Florida, at a date and time “to be determined.” Petitioner was later notified in writing of the time and date of her scheduled removal hearings and attended those hearings with her lawyer. At her initial hearing, Petitioner testified that her NTA had been served properly, admitted the allegations in the NTA, and conceded removability. Petitioner said, however, that she intended to apply for asylum and for withholding of removal. 2 Case: 18-14393 Date Filed: 11/04/2019 Page: 3 of 5 Following a merits hearing on Petitioner’s application for relief, the IJ denied Petitioner asylum, withholding of removal, and relief under the United Nations Convention Against Torture. The IJ then ordered Petitioner removed to Colombia. The BIA dismissed Petitioner’s appeal on 12 September 2007. Petitioner remained in the United States. Over a decade later, Petitioner moved to reopen and to terminate her removal proceedings in the light of the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Because Petitioner’s NTA failed to specify the date and time of her hearing, Petitioner argued that the NTA failed to vest the IJ or the BIA with jurisdiction over her removal proceedings. About timeliness, Petitioner asserted that Pereira constituted an extraordinary circumstance that warranted equitable tolling of the 90-day time limit applicable to motions to reopen. In the alternative, Petitioner also asked the BIA to exercise its sua sponte authority to reopen her case based upon Pereira. The BIA denied Petitioner’s motion. The BIA explained that -- even if it deemed Petitioner’s motion as timely filed -- Petitioner was unentitled to relief because she had conceded the allegations in the NTA and was found removable as charged. The BIA also determined that Petitioner’s argument was foreclosed by 3 Case: 18-14393 Date Filed: 11/04/2019 Page: 4 of 5 the ...
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