Weekly Blog for 5.24.19 Part I by Merle Kahn, Esq.
So, it turns out that the Board of Immigration Appeals cannot actually overrule the U.S. Supreme Court – at least not in the Ninth Circuit. In other words, the Ninth Circuit ruled that a Notice to Appear that lacks the time and place of the immigration hearing does not stop time for purposes of cancellation of removal. On the very same day the BIA issued two cases further restricting the scope of Pereira. Where an Immigration Judge (IJ) orders the noncitizen removed in absentia for failure to appear at the hearing, it is irrelevant that the NTA lacked the time and date of the hearing as long as EOIR subsequently sent a notice of hearing to the noncitizen. Similarly, where the Government served the noncitizen a putative NTA, but she failed to appear at the hearing because she refused to give the government her address the immigration court does not need to rescind the in absentia order. We will see if the Circuit Courts defer to those decisions. Finally, the Ninth Circuit issued a decision deferring to the BIA holding that parole is not an admission for purposes of cancellation of removal. There is a lot to get into here.
I have divided blog into three parts: Part I analyzes the Ninth Circuit’s decision holding that a putative notice to appear does not stop time for purposes of cancellation of removal. Part II analyzes the BIA’s decisions holding that the immigration courts cannot rescind in absentia orders solely because the notice to appear lacked the time and place of the hearing. Part III analyzes the Ninth Circuit’s decision that parole is not an admission for cancellation of removal purposes.
PART I – NINTH CIRCUIT
A NOTICE TO APPEAR THAT LACKS THE TIME AND PLACE OF THE HEARING DOES NOT STOP TIME FOR PURPOSES OF CANCELLATION OF REMOVAL
As we all suspected, the Board of Immigration Appeals actually does not have the authority to overrule a Supreme Court decision. But you have to respect the audacity of the BIA. If the Trump administration has taught me anything it is just make the most outrageous, audacious arguments you can and dare your opponents to prove you wrong. The Ninth Circuit held that a putative notice to appear (NTA) that lacks the time and place of hearing, does not cut off time for cancellation of removal. A subsequent notice of hearing cannot cure a putative NTA for purposes of the stop time rule. If you are saying to yourself, ‘didn’t the Supreme Court decide this issue nearly a year ago and why are we possibly still discussing it?’ You would be right in questioning what is happening. But a few weeks ago, the BIA in an en banc decision attempted to overrule the Supreme Court’s decision in Pereira. Okay, I’m being hyperbolic (but only a little). The BIA held, “[W]here 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. Matter of Mendoza-Hernandez, 27 I.&N. Dec. 520, 535 (BIA 2019) (en banc). You can read my blog on Mendoza-Hernandez here.
The BIA’s holding in Mendoza-Hernandez is that a “notice to appear” does not have to be a single document. It can be several documents with different titles that together create a unified notice to appear. The ‘notice to appear’ can consist of a ‘notice to appear’ and a ‘notice of hearing.’ The Ninth Circuit not-so-gently corrected the BIA and held that a notice of hearing cannot cure a notice to appear that lacks the time and date of the hearing. The Supreme Court had previously disposed of the grand unified theory argument in Pereira, but the Ninth Circuit reiterates it here. There is a dissent that agrees with the BIA’s grand unified theory of notices to appear and since I think it is hardly the last we hear of this issue, it is important to understand the dissent too.
Factual Background
Isaias Lorenzo Lopez is from Mexico. In 1998, when he was fourteen years old, he came to the United States to join his father who was a lawful permanent resident. The United States government paroled him into the United States and in 2002 he became a permanent resident. He graduated from high school in the United States and worked to support his two U.S. citizen children and their mother. Here is where he ran into trouble. On March 14, 2008, Mr. Lorenzo helped a person enter the United States illegally. He drove to Tijuana, Mexico, picked up this person and gave her the birth certificate of a U.S. citizen and tried to drive her across the border. Customs and Border Protection (CBP) arrested Mr. Lorenzo when this person tried to enter the United States and they charged him with alien smuggling. Mr. Lorenzo applied for cancellation of removal under INA § 240A(a). (For cancellation of removal the noncitizen must prove that (1) they have been a lawful permanent resident of the United States for five years; (2) they have been physically present in the United States for seven years after having been admitted in any status; and, (3) they have not been convicted of an aggravated felony). The IJ found that Mr. Lorenzo was admitted in February 2002 when he became a lawful permanent resident and that the March 2008 Notice to Appear terminated his residence period under the “stop time rule.” The IJ found that he was statutorily ineligible for cancellation of removal. The BIA affirmed the IJ’s decision.
While Mr. Lorenzo’s appeal was pending, the Supreme Court decided Pereira v. Sessions, 138 S.Ct. 2105 (2018). As a quick reminder, Pereira held that a Notice to Appear that lacks the time and place of the hearing does not trigger the stop time rule for cancellation of removal. That holding is the “narrow” holding of Pereira. Now many attorneys (including me) have tried to expand Pereira’s holding to encompass jurisdiction. To date, that argument has not worked.
Legal Analysis
The Supreme Court’s holding in Pereira that a notice to appear that does not contain the time and place of the hearing does not stop time for purposes of cancellation seems so clear. Why is this issue even an issue?
Government’s Arguments
The Government argued that time stopped for cancellation of removal purposes once the noncitizen received the notice of hearing which completed the notice to appear by providing the time and date of the hearing. The Government relied on the Ninth Circuit’s 2009 holding in Popa v. Holder, 571 F.3d 890 (9th Cir. 2009). The Ninth Circuit gently pointed out that Pereira overruled Popa and that the Ninth Circuit was bound to follow the Supreme Court’s interpretation of the law.
The Government persisted, arguing that a notice of hearing may cure a defective notice to appear. The Ninth Circuit points out that the phrase “notice of hearing” does not appear anywhere in the statute. Rather, the statute refers to a notice to appear and the statute delineates when the government may issue each document and what it must contain. But the Government argues back that the law is silent on whether the required notice to appear must consist of one document or if it may consist of multiple documents that collectively contain the necessary information. It’s kind of a unified theory of a notice to appear. Fortunately for us, immigration law is not as complicated as physics and we don’t really need a unified theory. (For those of you who are not sure about what the unified theory of physics is, Britannica.com defines it as “an attempt to describe all fundamental forces and the relationships between elementary particles in terms of a single theoretical framework” in particle physics.)
Back to immigration law. The Government argues that the statute is silent about whether a notice to appear can consist of several documents. But their argument is a little disingenuous. The Supreme Court in Pereira found that a “notice to appear” cannot consist of several documents because it would undermine the immigrant’s right to counsel. The Supreme Court noted that the Government could issue a notice to appear and then two years later issue a notice of hearing scheduling the hearing for days after the notice of hearing thereby hindering the noncitizen’s right to counsel. Pereira v. Sessions, 138 S.Ct. 2105, 2114-15.
However, the Dissent here argues that the Dictionary Act, 1 U.S.C. § 1 requires all references to “a notice” or “the notice” in the statute be read as referring to both the singular and the plural, thus permitting multiple documents to collectively satisfy the requirements of a Notice to Appear. My first reaction reading this was, ‘wait, there is a Dictionary Act?’ Yes, there is, and you can click on the link above to read it. And it does say singular includes the plural and the plural includes the singular. But the majority finds that it does not apply here.
The BIA Does Not Have Particular Expertise in Interpreting Supreme Court Decisions
The Ninth Circuit found that they should not afford the BIA Chevron deference here. (Chevron says that the Circuit Courts must defer to the agencies on issues related to the agency’s expertise where the statute is ambiguous or silent and where the agency’s interpretation is not unreasonable.) First, the Ninth Circuit held that the BIA does not any particular expertise in interpreting Supreme Court opinions. Second, they held that the BIA’s analysis is disingenuous and ignores the plaining meaning of the statute and that the statute itself is unambiguous. I loved this sentence: “The lack of ambiguity in the statutory language provides us with yet another reason to “not resort to Chevron deference,” Pereira, 138 S.Ct. at 2113, and to not accord any deference to the BIA’s contrary holding, as it was unmoored from the text…” Lorenzo-Lopez v. Barr, No. 15-72406, slip op. at *16 (9th Cir. May 22, 2019). “Unmoored from the text” that is some fantastic language. The Ninth Circuit refused to defer to the BIA because they found that the BIA’s analysis relied on case law abrogated by the Supreme Court in Pereira. The Ninth Circuit notes that nothing precludes DHS from issuing notices to appear that conform to the statutory definition.
Karingithi Does Not Apply
Finally, the Ninth Circuit distinguishes this case from its decision in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019). In Karingithi the Ninth Circuit held that a defective notice to appear still vests the immigration court with jurisdiction over the case. (The Ninth Circuit has denied a motion to rehear this case en banc – so Karingithi is the law). The Ninth Circuit explained that because a regulation properly governs what a notice must contain to vest jurisdiction, the statutory definition of a Notice to Appear does not control. Lorenzo-Lopez, slip op. at *18. The Ninth Circuit noted that here the analysis relies on the statutory text and not a regulation and they are assessing eligibility for cancellation of removal – not jurisdiction. Because the question presented to the Ninth Circuit was purely legal there was no need to remand the case to determine the impact of Pereira.
Dissent
The dissent agrees with the majority that under Pereira for the stop time rule to apply the Government must provide the noncitizen with the time and place of the removal proceedings. “I do not read Pereira as holding that the notice of the time and place must be provided in a single document. Rather, I read Pereira as not prohibiting the Government from supplementing a deficient notice to appear by subsequently providing notice of the time and place of the removal proceedings, with the consequence that the stop-time rule is triggered upon receipt of the supplemental notice.” Lorenzo-Lopez, slip op. at *20 (Callahan, J. dissenting). The dissent notes that Pereira did not directly address whether the Government had to provide all the information required under INA § 239(a) (statutory definition of a notice to appear) in one document.
The dissent notes, “the Court first narrowed the dispositive question to whether “a ‘notice to appear’ that does not specify the ‘time and place at which the proceedings will be held,’ as required by § 1229(a)(1)(G)(i) [INA § 239(a)(1)(G)(i)], trigger[s] the stop-time rule.” [Pereira, 138 S.Ct. at 2113]. Lorenzo-Lopez, slip op. at *23 (Callahan, J. dissenting). The dissent points out that “the majority leaps to the conclusion that the notice of hearing that Lorenzo subsequently received – that did provide notice of the time and place of his removal proceedings – did not, as a matter of law, cure the defect in the initial notice to appear, and that the only cure is for DHS to issue, now years later, a new “Notice to Appear.” Ibid.
The dissent writes that the majority reads too much into the use of the singular in the statute. Under the Dictionary Act (see, I promised you we would get to the Dictionary Act) unless Congress says otherwise words used in the singular include and applies to the plural. So, singular can be plural, and plural can be singular unless otherwise written. The Dictionary Act’s definition reminds me of Bill Clinton’s famous quote, “It depends on what the meaning of the word ‘is’ is.” The dissent then interprets the Supreme Court’s analysis in Pereira. But I think the dissent gets the analysis backward. The dissent writes:
“The Supreme Court’s concern in Pereira was with noncitizens receiving notification of the time and place of the removal proceedings and not with whether all the information was contained in a single document, entitled “Notice to Appear.” In other words, the court was concerned with the noncitizen receiving the information rather than the form of the notice. Indeed, all the concerns underlying the Supreme Court’s ruling in Pereira are satisfied by a properly served second document that supplements a deficient initial notice. The second notice then provides noncitizens with notice of the time and place of the proceedings that “is the essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceeding.” Pereira, 138 S. Ct. at 2115. Similarly, such a notice would assure the noncitizen of the opportunity to secure counsel before the hearing. See id. at 2114–15; see also 8 U.S.C. § 1229(a)(2)(b)(1) (requiring that in order to allow the noncitizen to secure counsel, the hearing date shall not be scheduled earlier than 10 days after the service of the notice).”
Lorenzo Lopez, slip op. at *26 (Callahan, J. dissenting). But here is the actual language from Pereira and I think it is the opposite of what the dissent is arguing:
“Another neighboring statutory provision lends further contextual support for the view that a “notice to appear” must include the time and place of the removal proceedings to trigger the stop-time rule. Section 1229(b)(1) gives a noncitizen “the opportunity to secure counsel before the first [removal] hearing date” by mandating that such “hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear.” 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.”
Pereira, 138 S. Ct. at 2114-15 (emphasis added).
The dissent next argues that while the courts do not have to defer to an agency’s interpretation of a Supreme Court decision, the agency’s interpretation deserves some consideration. Finally, the dissent is concerned about frustrating Congressional intent by expanding Pereira beyond its “narrow holding.” Under INA § 240A(d) the stop time rule applies when the Government serves the noncitizen with the notice to appear. “Pereira requires that DHS’s misinterpretation of the statute as permitting notices that do not set forth the time and place for removal proceedings be corrected. That misinterpretation and the concerns underlying Pereira are resolved by allowing DHS to cure an initial notice to appear with a subsequent notice of hearing setting for the time and place of the removal proceeding and stopping the clock upon the noncitizen’s receipt of the subsequent notice.” Lorenzo Lopez, slip op. at *29 (Callahan, J. dissenting).
And here is the language that I think truly explains the Circuit Courts’ refusal to expand Pereira to the issue of jurisdiction: “Requiring DHS to serve new notices to appear on all noncitizens who received deficient notices to appear, rather than allowing for subsequent notices of hearing, is a windfall for noncitizens and unnecessarily interferes with Congress’s intent.” Ibid. And there we have it. Arguably everyone recognizes that there are due process and jurisdictional concerns about putative notices to appear but the practical effect of correcting DHS’s mistakes over the years would put too much strain on the system.
Lorenzo Lopez v. Barr, No. 15-72406 (9th Cir. May 22, 2019).