JORGE LOPEZ HERNANDEZ V. MERRICK GARLAND, No. 20-71956 (9th Cir. 2023)

Denying Jorge Reynaldo Lopez Hernandez’s petition for review of the Board of Immigration Appeals’ decision in which the Board sustained the government’s challenge to the immigration judge’s termination of proceedings, the panel held that the Board permissibly declined to consider Lopez’s challenges to the IJ’s alternative denial of withholding of removal and protection under the Convention Against Torture because Lopez did not file a cross-appeal of that determination.

The IJ concluded that because Lopez’s Notice to Appear lacked hearing time and place information, as required by Pereira v. Sessions, 138 S. Ct. 2105 (2018), the immigration court lacked jurisdiction over his proceedings. However, recognizing that the Board might disagree with its jurisdictional conclusion, the IJ alternatively denied Lopez’s application for withholding of removal and CAT protection on the merits. The government appealed the IJ’s decision to terminate proceedings, but Lopez did not file a cross-appeal. The Board sustained the government’s appeal of the IJ’s termination of proceedings, but concluded that because Lopez did not file a cross-appeal, the IJ’s alternative denial of relief on the merits was not properly before it.

Before this court, Lopez expressly waived review of the Board’s termination determination, but argued that the Board erred when it concluded that he was required to file a separate cross-appeal to challenge the IJ’s alternative order on the merits of his claims. The panel rejected this argument. In concluding that the IJ’s alternative merits determination was not properly before it, the Board relied on 8 C.F.R. § 1003.3(a), which states that “[a]n appeal from a decision of an immigration judge shall be taken by filing a Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) directly with the Board, within the time specified in § 1003.38.” The panel observed that section 1003.3 does not expressly address cross-appeals. However, the panel wrote that the cross-appeal rule is an “unwritten but longstanding rule” under which “an appellate court may not alter a judgment to benefit a nonappealing party.” The panel explained that the Supreme Court has described this rule as “firmly entrenched,” and it has noted that “in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule.”

Although an appellee must cross-appeal if it seeks to alter the judgment, it need not do so if all it wishes to do is present alternative grounds for affirming the judgment. Here, the panel concluded that this limitation on the cross-appeal rule did not help Lopez because he did seek to alter the judgment. Had the IJ’s order terminating proceedings been sustained, the agency would have been free to initiate new proceedings by issuing a new order to appear. In his challenge to the IJ’s alternative order, Lopez sought to obtain greater relief—namely, to establish his eligibility for withholding of removal or protection under the CAT. Had he obtained that relief, the agency would not have been able to bring new removal proceedings. Thus, Lopez was seeking to alter the judgment, not merely to affirm the IJ’s decision on different grounds.

The panel noted that it was not suggesting that the Board was required to follow the traditional rule governing cross appeals. Rather, the Board has authority to prescribe its own rules of procedure, so long as the Board acts within the broad limits imposed by the Due Process Clause. The panel wrote that it is not up to courts to specify the procedures that the Board should follow. Thus, the Board could, if it wished, take a more permissive view of the scope of appeals than that traditionally taken by federal courts. But it has not done so. To the contrary, it has consistently applied the cross-appeal rule in its decisions. Moreover, other courts of appeals have also recognized that the cross-appeal rule applies to proceedings before the Board, and to the panel’s knowledge, no court has reached a contrary conclusion.

Finally, the panel concluded that it lacked jurisdiction to consider Lopez’s arguments for a waiver of the cross-appeal rule because he failed to exhaust that claim before the Board.

https://law.justia.com/cases/federal/appellate-courts/ca9/20-71956/20-71956-2023-02-16.html