UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSE G. RAMOS, Petitioner,

v. WILLIAM P. BARR, United States Attorney General, Respondent. No. 19-9549 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , KELLY , and BACHARACH , Circuit Judges.

________________ _________________ Petitioner Jose G. Ramos, 1 a native and citizen of El Salvador, seeks review of a decision from the Board of Immigrati on Appeals (BIA) denying his motion to reopen his immigration proceedings. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny Mr. Ramos’s petition.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 We note that the petitioner also refers to himself as Jo se Ramos Perdomo. FILED United States Court of Appeals Tenth Circuit 

### July 10, 2020 Christopher M. Wolpert Clerk of Court2 I. Background Mr. Ramos entered this c ountry without inspection in September 1993. He states that he then left the United States and returned to El Salvador for a brief period of time from September 2001 to November 20 01. On November 3, 2001, Mr. Ramos was paroled into this country. 2 In February 2005, Mr. Ramos was served with a Notice to A ppear (NTA). The NTA charged Mr. Ramos with being removabl e for remaining in this country after the expiration of his parole period withou t possessing a valid entry document. The NTA informed him of the location of his h earing, but it did not include the date or time of his hearing. He was later mail ed a Notice of Hearing containing that information. Mr. Ramos appeared for an initial Mast er Calendar hearing on April 21, 2005. At the conclusion of the hearing, th e matter was reset to May 19, 2005, but Mr. Ramos did not appear at that hearing. As a result of his failure to appear, the Immigration Judge (IJ) ordered Mr. Ramos re moved in absentia that same day. Mr. Ramos then filed a pro se motion to re open on May 31, 2005, but the IJ denied

2 “The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or signifi cant public benefit a ny alien applying for admission to the United States, but such parole of such alie n shall not be regarded as an admission of the alien and when the purpos es of such parole shall, in the opinion of the Attorney General, ha ve been served the alien sh all forthwith return or be returned to the custody from which he wa s paroled and thereaf ter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” 8 U.S.C. § 1182(d)(5)(A).3 the motion because Mr. Ramos had not give n the court a good reason for his failure to appear. In November 2005, Mr. Ramos filed a c ounseled motion to reopen. The IJ denied that motion in February 2008 becau se it was untimely. The IJ noted that Mr. Ramos attributed his failu re to appear at the May 20 05 hearing to his attorney’s advice and that the circumstances surroundi ng his claim were suggestive of his prior counsel’s ineffectiveness. Although the IJ explained that the deadline for filing a motion to reopen could be tolled for inef fective assistance of counsel, the IJ determined that Mr. Ramos had failed to meet the requirements for raising such a claim, which are set forth in Matter of Lozada , 19 I. & N. Dec. 637, 639 (BIA 1988). The IJ therefore denied the motion to reopen. The BIA affirmed the IJ’s decision. Mr. Ramos filed a motion to reconsider the BIA’s decision, but the BIA denied that motion. In October 2018, Mr. Ramos filed his th ird motion to reopen. He argued that the BIA should grant his motion because he mi ssed his hearing due to his attorney’s ineffective assistance. He explained th at he wanted to reopen his proceedings because he was prima facie eligible for can cellation of removal. He also argued, in the alternative, that his proceedings should be terminat ed because he did not receive a valid charging document and therefore the immi gration court lacked jurisdiction. The BIA denied the motion because it was untimely and Mr. Ramos had failed to establish that the fili ng deadline should be tolled. The BIA determined that although Mr. Ramos’s motion complied with th e procedural requirements outlined in4 Matter of Lozada , he failed to demonstrate due d iligence in filing it. The BIA also rejected Mr. Ramos’s alternative argument th at jurisdiction did not vest with the IJ based on the purportedly defective NTA, relying on its decisions in Matter of Bermudez-Cota , 27 I. & N. Dec. 441 (BIA 2018), and Matter of Pena-Mejia , 27 I. & N. Dec. 546 (BIA 2019). The BIA further concluded th at Mr. Ramos could not establish the ten years of continuous physical presence required to be eligible for cancellation of removal because the stop-time rule 3 was triggered in 2005, a little more than three years after he entered the country. Mr. Ramos timely petitioned for re view of the BIA’s decision. II. Discussion We review the BIA’s denial of a motion to reopen fo r abuse of discretion. Maatougui v. Holder , 738 F.3d 1230, 1239 (10th Cir. 2013). “T he BIA abuses its discretion when its decision provides no ra tional explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Id . (internal quotation marks omitted). In general, an alien may file only one motion to reopen and must file that motion within ninety days of the final order of removal. See 8 U.S.C. § 1229a(c)(7)(A),(C)(i); 8 C.F.R. § 1003.2( c)(2). But the fi ling deadline may be tolled if the motion to reopen is based on ineffective assistance of counsel. Mahamat

3 Under the so-called “stop-time rule ,” an alien’s pe riod of continuous presence ends when the government serves the alien with a NTA. See 8 U.S.C. § 1229b(d)(1).5 v. Gonzales , 430 F.3d 1281, 1283 (10th Cir. 2005) . Tolling, however, is available only if an alien exercises due diligence in pursuing his case during the period the alien seeks to toll. Id

. Mr. Ramos first argues that he exerci sed due diligence in filing his third motion to reopen because he did not learn of his attorney’s in effective assistance until 2017, when his current counsel ma de a request under the Freedom of Information Act for his immigration files. But, as the BIA e xplained, Mr. Ramos’s “claim is not supported by the record,” beca use in his second mo tion to reopen, he “attributed his failure to appear at his 2005 hearing to his a ttorney’s ineffective assistance.” R. at 4. The BIA further observed that in the February 2008 denial of the second motion to reopen, the IJ “expl ain[ed] the procedural requirements for filing a motion to reopen based upon ine ffective assistance of counsel and specifically note[d] that . . . the filing deadline for such motions can be tolled if the alien can establish due diligence.” Id . As the BIA aptly stat ed, “[t]hus, the issue of ineffective assistance of counsel a nd equitable tolling was first addressed approximately 11 years ago,” but Mr. Ramos “waited over a decade to comply with the procedural requirements of Matter of Lozada and file a motion to reopen with this6 Board.” Id . The BIA did not abuse its discreti on in concluding that Mr. Ramos did not act with diligence in pursuing his clai m of ineffective assistance of counsel. 4 Mr. Ramos next argues that he is pr ima facie eligible for cancellation of removal because he has ten years of conti nuous physical presence in this country. Although he acknowledges that he was paroled into the United States on November 3, 2001, he asserts that this was after a brief trip back to El Salvador, and he disputes the BIA’s character ization of this date as th e beginning of his period of continuous physical presence . He contends we shoul d remand to the BIA with instructions to reopen his immigration pr oceedings so that his application for cancellation of removal may be consid ered. We are not persuaded. First, Mr. Ramos fails to explain how his purported eligib ility for cancellation of removal excuses the fact that his third motion to reope n did not comply with the time and number limitations for motions to reopen, see 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). As we have just explained, the BIA did not abuse its discretion in denying Mr. Ramos’s untimely motion to reopen. Second, Mr. Ramos did not exhaust the specific argument he now raises about his continuous physical presence and his brief departure in 2001. In order to preserve arguments for review in this court, an alien must exhaus t his administra tive remedies

4 Mr. Ramos also argues the merits of hi s claim for ineffec tive assistance of counsel. See Pet’r’s Br. at 9-10. The BIA di d not reach this issue because it determined he failed to demonstrate due diligence in pursuing this claim. Because we agree with the BIA as to Mr. Ramos’s lack of due dilig ence, we decline to address the merits of his claim for ineffective assistance of co unsel when it provides no basis to grant the petition for review and the BIA ha s not addressed it in th e first instance.7 by first presenting those ar guments to the BIA. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal onl y if . . . the alien has exhausted all administrative remedies ava ilable to the alien as of ri ght[.]”). We explained in Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Cir. 2010), that “[t]o satisfy § 1252(d)(1), an alien must present the same specific legal theory to the BIA before he or she may advance it in court.” Mr. Ramos’s NTA stated that he had been paroled into the country on November 3, 2001, see R. at 244, so he was on notice that the BIA considered that his entry date. Bu t in his third motion to reopen, he simply alleged that he entered this country in September 1993, id . at 19, and stated that “he ha[d] been continuously present in th e United States for at least 10 years,” id . at 24. Mr. Ramos never argued that the November 2001 parole date on his NTA was not his actual date of entry nor did he assert that his time in El Salv ador in 2001 was brief and did not interrupt his ten years of con tinuous physical presence. Mr. Ramos “may not add new theories seriatim as the litigation progresse s from the agency into the
courts.” Garcia-Carbajal , 625 F.3d at 1238. We decline to address Mr. Ramos’s general argument about his e ligibility for cancellation for removal as it provides no basis to reopen his immigrati on proceedings, and we lack ju risdiction to consider his newly-raised argument regarding his ten years of continuous physical presence, see id. at 1237-38 (explaining that failure to exhaust is ju risdictional). Mr. Ramos’s final argument is that under Pereira v. Sessions , 138 S. Ct. 2105 (2018), the NTA served on him was insufficie nt to confer subjec t matter jurisdiction on the immigration court because it did not designate the date and time of his8 hearing. 5 See Pet’r’s Br. at 15-16. He therefore asserts we should remand this matter to the BIA with instructions to terminate his removal proceedings. We disagree.
In Pereira , the Supreme Court held that an NTA that fails to designate the specific time and place of a removal proceedi ng does not trigger the stop-time rule to end the period of continuous presence in the United States required for cancellation of removal. See 138 S. Ct. at 2109-10. 6 But, as we explained in Lopez-Munoz v.
Barr , 941 F.3d 1013, 1018 (10th Cir. 2019), Pereira “did not address the distinct question of whether a defect in the notice to appear would preclude jurisdiction over the removal proceedings.” Instead, “the C ourt expressly declined to address this broader question, emphasizing that th e decision was ‘much narrower.’” Id . (quoting
Pereira , 138 S. Ct. at 2113).

5 Mr. Ramos raises additi onal arguments challenging the IJ’s jurisdiction, see Pet’r’s Br. at 16-23, but we agree with th e government that th ese arguments advance new legal theories to suppor t Mr. Ramos’s general jurisdic tional claim that he did not present to the BIA. We therefore lack jurisdiction to consider his unexhausted jurisdictional arguments. 8 U.S.C. § 1252(d)(1); Garcia-Carbajal , 625 F.3d at 1237-38.

6 Mr. Ramos states that “ Pereira would require that [the Department of Homeland Security] issue a properly execute d NTA in order to trigger the stop time rule.” Pet’r’s Br. at 15. To the extent he is not simply stating the holding in Pereira , but is instead arguing that hi s defective NTA did not trigge r the stop-time rule in his case, he does not adequately develop this ar gument in his brief. We therefore agree with the government that he has waived a ny challenge to the BIA’s conclusion, based on its decision in Matter of Mendoza-Hernandez , 27 I. & N. Dec. 520 (BIA 2019), that the NTA issued in 2005 triggered the stop-time rule. See Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 679 (10th Ci r. 1998) (“Arguments inadequately briefed in the opening brief are waived[.]”).9 We did, however, address that broader question in Lopez-Munoz . There, the petitioner sought review of the denial of her motion to rec onsider the BIA’s denial of her second motion to reopen. Similar to Mr. Ramos, she argued that her NTA was defective because it did not contain th e time or place of her hearing. Id . at 1015. She further argued that this de fect was jurisdictional. Id . We rejected her jurisdictional argument, joining the other circu its that had declined to read Pereira as a limitation on an IJ’s jurisdiction. Id . at 1018. More recently, in Martinez-Perez v. Barr , 947 F.3d 1273, 1278 (10th Ci r. 2020), we reiterated our rejection of the
Pereira -based argument that a defective NTA de prives an IJ of jurisdiction, and further “held that the requirements relating to notices to appear are non-jurisdictional, claim-processing rules.” Based on our precedential decisions in Lopez-Munoz and Martinez-Perez , we reject Mr. Ramos’s argument that his defective NTA deprived the IJ of jurisdiction over his removal proceedings. III. Conclusion We deny Mr. Ramos’s petition for review.

Entered for the Court

Jerome A. Holmes Circuit Judge