Lopez v. Garland

Though 8 C.F.R. § 1003.3(a) does not expressly address cross-appeals, the rule requiring separate cross-appeals is an “unwritten but longstanding rule" that the BIA has consistently chosen to apply in its decisions. Greenlaw v. United States, 554 U.S 237, 244 (2008).

Lopez petitioned for review, arguing that while 8 C.F.R. § 1003.3(a) required appeals to be filed within a specific time, Section 1003.3 did not address cross-appeals; and if the rule still applied, it should be waived in his case. Lopez-Hernandez received a Notice to Appear for removal proceedings from The Department of Homeland Security (DHS) that did not stipulate a hearing location or time. The immigration judge (IJ) held that because location and time were required, the court lacked jurisdiction over the proceedings. The IJ alternatively denied Lopez’s argument on the merits, if the Board of Immigration Appeals (BIA) disagreed with the conclusion. On appeal of the jurisdictional decision, BIA held that a Notice to Appear lacking required information does not eliminate jurisdiction if that information is sent later. Further, the BIA held that any issue regarding the IJ’s alternative decision was not before the court because Lopez had not cross appealed. The Court found that the cross-appeals rule was an “unwritten but longstanding rule” under which “an appellate court may not alter a judgment to benefit a nonappealing party.” Greenlaw v. United States, 554 U.S 237, 244 (2008). The BIA need not follow this rule, however it has consistently applied it in its decisions. The Court further denied a waiver of this rule in Lopez’s case because he did not exhaust that claim before the BIA. PETITION DENIED.