[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-13365

Non-Argument Calendar

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Agency No. A035-362-605

GREGORY CLERMONT, 

a.k.a. Leviathan Lewis, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(October 8, 2019)

Before TJOFLAT, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM: 

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Gregory Clermont seeks review of the Board of Immigration Appeals’ (BIA) 

final order dismissing his appeal of an immigration judge’s (IJ) denial of his 

motion to reopen his deportation proceedings. He contends the 1995 Order to 

Show Cause (OSC) that initiated those proceedings was defective under Pereira v. 

Sessions, 138 S. Ct. 2105 (2018), as it failed to specify the time and place of his 

hearing, and thus, he was statutorily authorized to move to reopen those 

proceedings because he was never provided notice.1

 After review, we dismiss 

Clermont’s petition because he raises his Pereira claim for the first time in his 

petition for review, and has not exhausted his administrative remedies. 

Before addressing a petitioner’s arguments on the merits, we assess our 

subject-matter jurisdiction de novo. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 

1297 (11th Cir. 2015). We lack jurisdiction to address an issue not raised before 

the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250–51 (11th 

Cir. 2006). 

Clermont raises his Pereira claim for the first time in his petition for review 

in this Court, and thus has not exhausted his administrative remedies with respect 

to that claim.2

 See 8 U.S.C. § 1252(d)(1) (providing we may review a final order 

1

 Generally, a motion to reopen removal proceedings must be filed within 90 days of the 

entry of the final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). However, a removal order 

may be rescinded upon a motion to reopen at any time if the alien shows that he did not receive 

notice. 8 U.S.C. § 1229a(b)(5)(C)(ii). 

2

 Although this Court held in Perez-Sanchez it would not dismiss the petitioner’s Pereira

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of removal only if an alien has exhausted all administrative remedies available as a 

matter of right). Although Clermont contends he raised a Pereira-like argument 

before the IJ and BIA, his previous notice arguments were different than the one 

presented here. See Indrawati, 779 F.3d at 1297 (stating to exhaust a claim, a 

petitioner “must have previously argued the ‘core issue now on appeal’ before the 

BIA”). His claims before the BIA and IJ focused on whether (1) he had been 

constructively provided notice, (2) his failure to appear was excusable, or (3) the 

equities justified reopening his case. These are in contrast to Clermont’s instant 

claim that he was entitled to have his deportation proceedings reopened because 

his 1995 OSC was statutorily deficient under the pre-Illegal Immigration Reform 

and Immigrant Responsibility Act of 1996 version of the Immigration and 

Nationality Act since, under the reasoning in Pereira, it lacked information 

regarding the time and place of immigration proceedings. Pereira, 138 S. Ct. at 

2113-14, 2116-17 (holding a putative notice to appear that fails to designate the 

specific time or place of the alien’s removal proceedings is not a notice to appear

under 8 U.S.C. § 1229(a)(1)(G)(i) for purposes of the stop-time rule because the 

failure “to specify integral information like the time and place of removal 

jurisdictional claim due to a petitioner’s failure to exhaust that claim, Clermont concedes he 

raises no such jurisdictional challenge in his petition. See Perez-Sanchez v. U.S. Att’y Gen., __ 

F.3d __, 2019 WL 3940873 at *3-7 (11th Cir. Aug. 21, 2019). Instead, Clermont argues only 

that he was statutorily entitled to have his deportation proceedings reopened because he was 

never provided the statutorily-required notice due to the defective nature of his OSC. 

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proceedings unquestionably would deprive the notice to appear of its essential 

character” (brackets and quotation marks omitted)).

More specifically, Clermont argued in his initial motion to reopen that he 

had not been provided notice because he had been unaware of his duty to update 

his address with the immigration court and had believed his probation officer 

would inform him of any correspondence. On appeal to the BIA, Clermont 

asserted he had not received any notice of the hearing whatsoever because the state 

failed to forward him the written notice of the time and place of his deportation 

proceedings. Therefore, while he did note in his motion to the IJ and BIA brief 

that notices of hearing were required to state the time and place of deportation 

proceedings, he did not argue before the BIA the failure to include that information 

in his 1995 OSC rendered it statutorily deficient, thereby entitling him to have his 

removal proceedings reopened. 

Clermont nevertheless argues this Court should excuse his failure to raise his 

Pereira claim because that case was decided after he filed his brief with the BIA 

and only a few weeks before the BIA issued the order dismissing his appeal. 

However, that argument is unpersuasive because Clermont could have filed a 

supplemental brief with the BIA following Pereira’s issuance or a motion for 

reconsideration of the BIA’s dismissal within 30 days of that order. 8 C.F.R. 

§ 1003.2(b)(2) (providing a petitioner may file a motion to reconsider with the BIA 

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within 30 days of the mailing of the BIA’s decision). As a result, because the BIA 

was empowered to consider Clermont’s Pereira claim, and as he did not present 

that claim to the BIA, he has not exhausted his administrative remedies as to that 

claim. See Sundar v. I.N.S., 328 F.3d 1320, 1325 (11th Cir. 2003) (stating the 

petitioner should have asked the BIA to reconsider and change its decision in a 

prior case where it possessed the authority to do so). 

Accordingly, we dismiss Clermont’s petition.3

 See Indrawati, 779 F.3d at 

1297; Amaya-Artunduaga, 463 F.3d at 1250-51.

PETITION DISMISSED.4

3 To the extent Clermont’s claim could be construed as a challenge to the BIA’s refusal to 

reopen his proceedings sua sponte, this Court lacks jurisdiction to review that claim because 

Clermont has not alleged the BIA’s decision constituted a constitutional violation. See Bing 

Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 871 (11th Cir. 2018) (stating we generally lack 

jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte pursuant to its 

discretionary authority). 

4 We GRANT IN PART “Petitioner’s Motion to Strike Respondent’s Rule 28(J) Letter.” 

We STRIKE Footnote One of Respondent’s 28(j) letter as exceeding the scope of Federal Rule 

of Appellate Procedure 28(j) and as constituting an effort to sidestep the requirement that filing a 

supplemental brief or sur-reply requires the Court’s permission. See 11th Cir. R. 27-1(c)(9).

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