THE BIA OVERRULES THE SUPREME COURT – FOR NOW

Weekly Blog for 5.3.19 by Merle D. Kahn, Esq.

Part I

That headline might be a little hyperbolic, but, in a rare en banc decision, the Board of Immigration Appeals (BIA) held that the “stop time rule” is triggered by using a two-step process.  More specifically, if the Notice to Appear (NTA) lacks the time and date of the hearing, the stop time is rule is triggered when EOIR sends out the notice of hearing with the time and date of the hearing.  They seem to be defining an NTA as a collection of documents sent by the government to the noncitizen in removal proceedings.  These documents include the actual NTA and the Notice of Hearing.  Here is the holding of the case:

“We therefore hold that where a notice to appear does not specify the time and place of an alien’s initial removal hearing, the subsequent service of a notice of hearing containing that information “perfects” the deficient notice to appear, satisfies the notice requirements of section 239(a)(1) of the Act, and triggers the “stop-time” rule of section 240A(d)(1)(A) of the Act.  Pereira did not reach this issue because the alien was not properly served with a notice of hearing providing the time and place information and so did not appear at his initial removal hearing.”

Matter of Mendoza-Hernandez, 27 I.&N. Dec. 520, 535 (BIA 2019) (en banc).  After this decision came down, Aaron Hall tweeted out “Pereira also didn’t reach the issue of whether time/place given from a nearby lighthouse by Morse Code would perfect a deficient NTA.”  (Aaron is definitely worth following on Twitter).  In a decision that would do Simone Biles and Nadia Comaneci proud, the BIA engaged in some very impressive [mental] gymnastics to distinguish the Supreme Court’s decision in Pereira v. Sessions.  (You can click on these links to watch some actual gymnastics).  The BIA found that the notice of hearing with the time and date of the hearing cures a putative notice to appear for the purposes of the stop time rule and is the dispositive date that stops time. 

FACTS

Silvestre Mendoza-Hernandez and Rufina Capula-Cortes are husband and wife and are from Mexico.  On October 11, 2010, the Department of Homeland Security (DHS) served them with Notices to Appear (NTAs).  The NTAs did not specify the time, date or place of the initial removal hearing.  DHS filed the NTAs wit the immigration court and on December 8, 2010, the immigration court mailed notices of hearings to Mr. Mendoza and Ms. Capula.  Mr. Mendoza and Ms. Capula appeared at all of their hearings.  The IJ found that they had not submitted sufficient documentary evidence establishing physical presence in the United States since October 2000.  They filed a notice of appeal with the BIA and while their case was pending, Pereira came down.  The BIA requested supplemental briefing and DHS argued that Mr. Mendoza’s and Ms. Capula’s NTAs in combination with the notices of hearing specifying the time and place of their proceedings provided the necessary written notice required under INA § 239(a) to trigger the stop time rule.  Mr. Mendoza and Ms. Capula argued that not only did the putative NTA not trigger the stop time rule, but that jurisdiction never vested in the immigration court. 

LEGAL ANALYSIS

Subject Matter Jurisdiction

The BIA held that Matter of Bermudez-Cota, 27 I.&N. Dec. 441 (BIA 2018) foreclosed Mr. Mendoza’s and Ms. Capula’s jurisdictional arguments.  As a refresher, in Bermudez-Cota, the BIA held that a notice to appear that does not specify the time and place of an initial removal hearing vests an immigration judge with jurisdiction over removal proceedings as long as a notice of hearing specifying this information is later sent to the noncitizen.  Id., at 447.  So far, every circuit court that has ruled on this issue has deferred to Matter of Bermudez-Cota on this issue.  I won’t start ranting about how I think Bermudez-Cota and all the circuit court decisions are wrong on this issue.

Stop Time Rule

The BIA starts their analysis of the stop time rule by looking at pre-Pereira decisions for guidance, including their decision in Matter of Camarillo, 25 I.&N. Dec. 644 (BIA 2011).  I find this analysis baffling.  I would think you would head straight for Pereira as the Supreme Court has over-ruled the other decisions on this issue.  Nonetheless, we get a history lesson.  The BIA in Camarillo had held that the NTA triggers the ‘stop-time’ rule, regardless of whether the date and time of the hearing have been included in the original NTA.  In Camarillo the BIA held, “[n]o authority, however, supports the contention that a notice of hearing issued by the Immigration Court is a constituent part of a notice to appear, the charging document issued only by the DHS.”  Camarillo, 25 I.&N. Dec. 644, 648 (BIA 2011).  The BIA reevaluated its decision in Matter of Camarillo and noted “[w]e now consider that analysis to be flawed.”  Matter of Mendoza, 27 I.&N. Dec. at 525.  (Time for a backflip).

The BIA then analyzes Pereira v. Sessions.  The BIA noted, “the Court did not address the propriety of the two-part notice process applied by several circuit courts because the alien had accrued the required 10 years of physical presence before he received notice of his hearing in the reopened removal proceedings.”  Matter of Mendoza, 27 I.&N. Dec. at 527.  The BIA further finds that the Court accepted certiorari in Pereira to resolve a circuit split between the Third Circuit and the other circuits.  The other circuits had deferred to the BIA’s decision in Matter of Camarillo according it Chevron deference.  But, the Third Circuit had held that the stop time rule is triggered upon the service of the combination of the notice to hear and a subsequent notice of hearing that supplies the missing time and place information.  Orozco-Velasquez v. Att’y Gen. U.S., 817 F.3d 78 (3rd Cir. 2016).  They noted that the Supreme Court abrogated Matter of Camarillo and the circuit court cases deferring to it, but it did not disturb the Third Circuit’s decision.  They conclude that Periera does not preclude a notice to appear that is “perfected” by the notice of hearing from stopping time.  (Time for a handspring).

“That section 239(a)(2) of the Act “presumes” that the time and place of the proceedings was already specified in a notice to appear does not preclude the possibility of a two-step process that allows a notice of hearing containing the time and place information to perfect, or cure a deficient notice to appear.  The Pereira Court was not presented with that question.” 

Matter of Mendoza, 27 I.&N. Dec. at 533.  They relied on the Court’s language that the holding in Pereira was “narrow.”  But I think they are trying to squeeze Pereira out of existence.

As Lily Axelrod pointed out on Twitter (Lily is also worth following on Twitter) the Pereira Court already disposed of this argument.  In Pereira, the majority wrote:

“For § 1229(b)(1) to have any meaning, the “notice to appear must specify the time and place that the noncitizen, and his counsel, must appear at the removal hearing.  Otherwise, the Government could serve a document labeled “notice to appear” without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available.  Under that view of the statute, a noncitizen theoretically would have had the “opportunity to secure counsel,” but that opportunity will not be meaningful if, given the absence of a specified time and place, the noncitizen has minimal time and incentive to plan accordingly, and his counsel, in turn, receives limited notice and time to prepare adequately.  It therefore follows that, if a “notice to appear” for purposes of § 1229(b)(1) must include the time-and-place information, a “notice to appear” for purposes of the stop-time rule under § 1229b(d)(1) must as well.”

Pereira v. Sessions, 138 S. Ct. 2105, 2114-15 (2018). 

DISSENT

There is a vigorous dissent in this case joined by six BIA members.  They hold that the Supreme Court decided this issue in Pereira v. Sessions and “compels us to find that service of a “notice of hearing” by an Immigration Court does not meet the definition of a “notice to appear” under section 239(a)(1) of the Immigration and Nationality Act…and therefore does not trigger the “stop-time” rule when a “notice to appear” from the department of Homeland Security (DHS) fails to specify the time of the initial proceedings. 

The dissent frames the issue as whether the issuance of a notice of hearing by an Immigration Court triggers the “stop time” rule when the NTA issued by DHS did not specify the time or date of the hearing.  In other words, they frame it under Pereira.  “The Court in Pereira answers this question, stating that “based on the plain text of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear, that, at very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.”  Pereira, 138 S. Ct. at 2114.”  Mendoza, 27 I.&N. Dec. at 538.  The dissent notes that the majority conflates an Immigration Court’s service of a “notice of hearing” with the DHS’s service of a “notice to appear.”  Id., at 542.  I have to agree with the dissent here.

In a very interesting section of the dissent on jurisdiction, they noted:

“The court [Sixth Circuit] acknowledged that there is “some common-sense discomfort in adopting the position that a single document labeled ‘Notice to Appear’ must comply with a certain set of requirements for some purposes, like triggering the stop-time rule, but with a different set of requirements for others, like vesting jurisdiction with the immigration court.” Id. at 314.  However, referring to the breadth of Pereira’s holding on the “stop-time” rule, the court noted that the importation of that approach into the jurisdictional context “would have unusually broad implications.”

Matter of Mendoza, 27 I.&N. Dec. at 544 citing to Hernandez-Perez v. Whitaker, 911 F.3d, 305, 312-15 (6th Cir. 2018).  It seems like everyone is trying to be Nadia Comaneci in the mental gymnastics that is Pereira to avoid the logical outcome of the decision – the invalidation of most removal proceedings.  (Now for your enjoyment, here’s a different clip of Nadia Comaneci doing a gymnastics’ routine.) 

Matter of Mendoza-Hernandez, 27 I.&N. Dec. (BIA 2019) (en banc).