[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-10875

Non-Argument Calendar

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Agency No. A028-550-927

JOSE FRANCISCO LORENZO, 

a.k.a. Domingo Francisco Mateo, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(February 16, 2021)

Before MARTIN, JILL PRYOR and BRANCH, Circuit Judges.

PER CURIAM: 

Petitioner Jose Francisco Lorenzo petitions for review of the Board of 

Immigration Appeals’ (“BIA”) order denying his second motion to reconsider, 

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which argued that the BIA erred in denying his motion to reopen and terminate 

removal. Ten years after entering the United States without admission, the 

Department of Homeland Security issued him a notice to appear (“NTA”), alleging 

he was subject to removability under 8 U.S.C. §§ 1182(a)(6)(A)(i), (7)(A)(i)(I).

The NTA did not identify the time or date of the removal proceedings.

Lorenzo now argues that the agency lacked jurisdiction over his removal 

proceedings under the reasoning of Pereira v. Sessions, 138 S. Ct. 2105 (2018), 

because his NTA failed to set forth the time and place of his removal hearing. The 

BIA rejected his petition as number barred, as well as in conflict with Eleventh 

Circuit precedent. Because we agree with the BIA that Lorenzo’s jurisdictional 

challenge is foreclosed by our precedent, we deny his petition. 

I. BACKGROUND

Lorenzo, a citizen of Guatemala, originally entered the United States in 

2001. DHS initiated removal proceedings against Lorenzo in 2011. His initial 

NTA included the location of his removal hearing, but not the time and date. A 

subsequent notice set the date and time of the hearing. He appeared both at that 

hearing and at a later hearing where, represented by counsel, he admitted he had 

entered the United States without permission.

After this admission, Lorenzo filed an application for cancellation of 

removal. Lorenzo and his wife, who is also from Guatemala, have four children 

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who are United States citizens. Lorenzo provides income for the family, and his 

wife takes care of their children. In his removal hearing, he argued that his 

deportation would cause undue hardship to his U.S. citizen children. After the 

hearing, the immigration judge (“IJ”) determined that Lorenzo was not eligible for 

cancellation of removal because he had not shown that his children would suffer 

exceptional hardship if he was removed to Guatemala. The BIA affirmed this 

decision, and Lorenzo did not file a petition seeking review of the BIA decision. 

Lorenzo then moved to reopen his removal proceedings to provide 

additional evidence of the hardship his deportation would pose to his children. 

Lorenzo’s six-year-old son has Ventricular Septal Defect (“VSD”). VSD is a 

congenital heart disease that requires frequent monitoring and could eventually 

require open heart surgery. In his motion to reopen, Lorenzo argued that moving 

his son to Guatemala would be an exceptional hardship because he could not get 

the treatment he needed in Guatemala. The BIA again denied his motion, stating 

that although Lorenzo had presented new evidence of hardship, he still had not met 

the burden required to terminate removal proceedings. Again, Lorenzo did not file 

a petition seeking review of this decision. 

Following this denial, Lorenzo again moved to reopen. This time he argued

his removal proceedings should be terminated because the immigration court 

lacked jurisdiction over his removal proceedings in light of the Supreme Court’s

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decision in Pereira, 138 S. Ct. at 2105. Lorenzo maintained that his original NTA 

was defective because it did not include the date and time of his hearing. The BIA 

denied this motion, noting that it had recently held in Matter of Bermudez-Cota

that an NTA that does not specify the time and place of the hearing still vests an 

immigration court with jurisdiction as long as a second notice including that

information is sent. 27 I&N Dec. 441, 447 (BIA 2018). Because Lorenzo received 

a second notice that included the time and date of his hearing, the BIA held, his 

NTA was not defective and the immigration court had jurisdiction over his 

removal proceedings.

Lorenzo filed a motion to reconsider this decision, arguing that this Court 

had chosen not to follow Matter of Bermudez-Corta in Duran-Ortega v. United 

States Attorney General, No. 18-14563, 2018 U.S. App. LEXIS 33531 (11th Cir. 

Nov. 29, 2018). According to Lorenzo, this meant that Bermudez-Corta did not 

apply in the Eleventh Circuit, and therefore the original NTA was defective under 

Pereira. The BIA disagreed; Duran-Ortega, it noted, was an unpublished 

decision, meaning that it was not binding authority on the Board. It also pointed to 

another Eleventh Circuit decision—Molina-Guillen v. United States Attorney 

General, 758 F. App’x 893, 898 (11th Cir. 2019)—where we held that a deficient 

notice to appear followed by a notice of hearing with the necessary information 

together fulfilled the notice requirement.

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In response, Lorenzo filed a second motion to reconsider.1 In that motion, 

he argued that the BIA erred in granting weight to Molina-Guillen and discounting 

Duran-Ortega because both were unpublished decisions. Moreover, since those 

two decisions allegedly conflicted, Lorenzo maintained that the BIA was left only 

with Pereira, which indicated the defective NTA meant the immigration court did 

not have jurisdiction. The BIA denied Lorenzo’s motion as both number-barred 

and in conflict with our precedent in Perez-Sanchez v. United States Attorney 

General, 935 F.3d 1148 (11th Cir. 2019).

Lorenzo now appeals the dismissal of his second motion to reconsider. 

II. STANDARD OF REVIEW

We review the BIA’s denial of a motion to reconsider for abuse of 

discretion. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). 

However, we review de novo our own subject matter jurisdiction. Fynn v. U.S. 

Att’y Gen., 752 F.3d 1250, 1252 (11th Cir. 2014). We also review the BIA’s legal 

determinations and interpretations of law or statutes de novo. See Castillo-Arias v. 

U.S. Att’y Gen., 446 F.3d 1190, 1195 (11th Cir. 2006). 

1 Lorenzo titled his second motion to reconsider an “Amended Motion to Reconsider.” 

The motion responded directly to the BIA’s decision on his first motion to reconsider and did not 

supersede his previous motion. Moreover, the Immigration and Nationality Act does not 

explicitly provide for amendments to motions in removal proceedings. See generally

8 U.S.C. § 1229a (outlining the procedures for removal proceedings). As such, we consider it a 

second, rather than an amended, motion. 

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III. DISCUSSION

On appeal, Lorenzo argues that the BIA abused its discretion in denying his 

second motion to reconsider in light of Pereira and that the BIA was bound by 

Pereira to terminate the proceedings because his original NTA was defective.2

 To 

support this argument, he contends that our Court’s only cases on this issue are 

unpublished and conflicting, and therefore the Board erred in denying his petition. 

This is incorrect. As the BIA noted in its denial of Lorenzo’s petition, our 

precedent in Perez-Sanchez rejects Lorenzo’s Pereira jurisdictional argument. To 

explain, we first discuss the Pereira decision and the relevant portions of the 

Immigration and Nationality Act (“INA”) and accompanying regulations. We then 

conclude by examining how Perez-Sanchez forecloses Lorenzo’s petition. 

The INA provides that an immigration judge shall conduct proceedings to 

determine whether a noncitizen is removable from the United States. 

8 U.S.C. § 1229a(a)(1). The statute does not explicitly state the conditions upon 

which jurisdiction vests with an immigration judge, but regulations provide that 

2 Along with holding that Lorenzo’s Pereira argument lacked merit, the BIA concluded 

that his motion was numerically barred. The government argues that Lorenzo’s failure to 

address whether the BIA erred in considering his motion numerically barred amounts to waiver 

of a dispositive issue and we need not analyze the Pereira question. We disagree. Lorenzo’s 

Pereira argument is a challenge to our subject matter jurisdiction because our jurisdiction 

depends upon the BIA’s jurisdiction. 8 U.S.C. § 1252. As we have a duty to ensure our subject 

matter jurisdiction, we must address the Pereira issue. Pinson v. JPMorgan Chase Bank, Nat’l 

Ass’n, 942 F.3d 1200, 1206 (11th Cir. 2019). And because Lorenzo’s Pereira jurisdictional 

argument is also the underlying merits claim, we decide the case on the Pereira argument alone, 

without ruling on the numerical bar or waiver issue.

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“[j]urisdiction vests . . . when a charging document is filed with the Immigration 

Court.” 8 C.F.R. § 1003.14(a). A notice to appear is a type of charging document. 

Id. § 1003.13. By statute, an NTA must specify, among other things, the time and 

place at which a removal hearing will be held. 8 U.S.C. § 1229(a)(1)(G)(i). But 

under the regulatory framework, a notice to appear is not required to specify the 

time or place of the removal hearing. See 8 C.F.R. § 1003.15(b), (c).3

In Pereira, the Supreme Court addressed when a noncitizen was eligible for 

cancellation of removal, a type of discretionary relief available to nonpermanent 

residents who have accrued 10 years of continuous physical presence in the United 

States. 138 S. Ct. at 2109. The Court considered whether the INA’s stop-time 

rule, which specifies that a noncitizen’s period of physical presence is deemed to 

end when he is served with an NTA, applied when the notice to appear that the 

noncitizen received failed to specify the time and place of the removal hearing. Id.

at 2109–10. The Supreme Court reasoned that a “putative notice to appear that 

fails to designate the specific time or place of the noncitizen’s removal proceedings 

is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stoptime rule.” Id. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)). 

3 The regulations specify that an NTA shall include time and place information for the 

removal hearing “where practicable.” 8 C.F.R. § 1003.18(b). When an NTA omits this 

information, the regulations permit an immigration judge to later provide the information to the

noncitizen. Id.

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Although the Supreme Court in Pereira stated that it was deciding only a 

“narrow question” about an eligibility requirement for cancellation of removal, it 

acknowledged that the flaw present in the case—the failure to specify the time or 

place of the removal hearing—was present in nearly every NTA that had been 

issued in recent years. Id. at 2110–11. After Pereira, some noncitizens, like 

Lorenzo, asserted that their removal proceedings were void because their 

proceedings were purportedly commenced by a “putative notice to appear” that 

was “not a notice to appear under section 1229(a).” Id. at 2113–14 (internal 

quotation marks omitted).

We have considered whether an NTA that failed to state the time and date of 

a noncitizen’s hearing deprived the agency of jurisdiction over the removal 

proceedings. See Perez-Sanchez, 935 F.3d at 1150. We determined that such an 

NTA was “unquestionably deficient” under § 1229(a). Id. at 1153. And we

reasoned that Pereira foreclosed any argument that this statutory defect in the 

NTA could be cured by a subsequent notice that informed the noncitizen of the 

time and date of the removal hearing. Id. at 1153–54. 

We nonetheless held in Perez-Sanchez that a defective NTA did not deprive 

the agency of jurisdiction over the removal proceedings because the statutory 

“time-and-place requirement” did not “create a jurisdictional rule,” but instead set 

forth a “claim-processing rule.” Id. at 1154–55. We also considered whether the 

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immigration judge lacked jurisdiction under 8 C.F.R. § 1003.14. Id. at 1154. We 

questioned whether the regulation, which purported to set forth when immigration 

proceedings commenced, should be given effect, because it was contrary to the 

unambiguous language in the statute. Id. But even assuming the statute was 

ambiguous and the regulation should be given effect, we determined that the 

outcome remained the same because the regulation “set[] forth only a claimprocessing rule.” Id. at 1155–57. Even though the regulation expressly referred to 

the vesting of jurisdiction in the agency, we held that it was not a jurisdictional rule 

because agencies cannot set or limit their own jurisdiction. Id. at 1155. Because 

neither 8 U.S.C. § 1229(a) nor 8 C.F.R. § 1003.14 spoke to jurisdiction, we 

concluded that “the IJ and the BIA properly exercised jurisdiction over [the 

petitioner’s] removal hearing” based on the authority conferred under the INA, 

even though the petitioner received a defective NTA, and denied the petition as to 

the Pereira claim. Id. at 1157. 

Our decision in Perez-Sanchez forecloses Lorenzo’s argument that the 

agency lacked jurisdiction over his removal proceedings. Because the requirement 

that an NTA include time and place information is a claim-processing, rather than 

jurisdictional, rule, the BIA did not err when it denied his second motion for 

reconsideration. 

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IV. CONCLUSION

For the foregoing reasons, we deny Lorenzo’s petition. 

PETITION DENIED.

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