Marvin Javier-Flores v. Merrick Garland

facts necessary to decide the petition. 2 more recently, our en banc court held that notice of the date and time of the

removal hearing is a claim-processing rule and the absence of such notice does not

deprive the Immigration Court of subject matter jurisdiction. United States v.

Bastide-Hernandez, No. 19-30006, 2022 WL 2662044, at *5 (9th Cir. July 11,

2022) (en banc). Further, despite Javier-Flores’s assertion that he was never given

notice of the date and time of his removal hearing, the record makes clear that he

was present at his removal hearing. The IJ did not issue an in absentia removal

order and the IJ’s decision indicates that it was personally served on Javier-Flores

and that he waived his right to an appeal in the Immigration Court. The IJ did not

enter Javier-Flores’s 2008 removal order without subject matter jurisdiction and

thus a gross miscarriage of justice has not occurred.

2. We are not persuaded by Javier-Flores’s attempt to distinguish

between when the Immigration Court’s jurisdiction vested and when removal

proceedings are “initiated” under 8 U.S.C. § 1229. Bastide-Hernandez made clear

that the notice requirements in the statutory scheme…