Weekly Blog for 5.24.19 Part II, – the BIA Decisions, 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 Board of Immigration Appeals (BIA) issued two cases trying to restrict the scope of Pereira. But, as I shall explain, I think the BIA is going too far in these cases. The BIA held 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 need not 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 just 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.
Board of Immigration Appeals – Part II
IMMIGRATION COURTS NEED NOT RESCIND AN IN ABSENTIA REMOVAL ORDER WHERE THE NOTICE TO APPEAR LACKED THE TIME AND PLACE OF THE HEARING
The immigration courts need not rescind an in absentia removal order where the notice to appear lacked the time and place of hearing, as long as EOIR sent the notice of hearing to the address the noncitizen provided. The BIA held that the notice of hearing cured the putative notice to appear. In one case the BIA held that where the post office did not return the notice of hearing as undeliverable, the noncitizen had sufficient notice of the hearing and the immigration court properly ordered her removed in absentia. In the other case, the BIA held that where the noncitizen refused to give the government her address, making it impossible to send her a notice of hearing, the immigration court properly entered an in absentia order. Both cases went beyond the clear language of the statute and construed the statute beyond recognition. In other words, the logic is tortured. Here is the critical language of the in absentia statute:
“Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title [INA § 239(a)] has been provided to the alien or the alien’s counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia.*.*.*. “
INA § 240(b)(5) (emphasis added).
Then the question is, what written notice is required under INA § 239(a)(1) or (2)? Section 239(a)(1) is the now famous section of statute analyzed by the Supreme Court in Pereira v. Sessions. The statute states that a notice to appear as defined under INA § 239(a)(1) must contain the time and place of the hearing. But, what about Section 239(a)(2)? The statute states:
“(2) Notice of change in time or place of proceedings
(A) In general
In removal proceedings under section 1229a of this title, in the case of any change or postponement in the time and place of such proceedings, subject to subparagraph (B) a written notice shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying-
(i) the new time or place of the proceedings, and
(ii) the consequences under section 1229a(b)(5) [240(b)(5)] of this title of failing, except under exceptional circumstances, to attend such proceedings.
(B) Exception
In the case of an alien not in detention, a written notice shall not be required under this paragraph if the alien has failed to provide the address required under paragraph (1)(F).”
I think there is a very strong statutory argument that Section 239(a)(2) applies only to a change in or postponement to the hearing date. In other words, the notice to appear for the initial hearing must conform to the requirement of INA § 239(a)(1) before the court may issue an in absentia order.
The Immigration Court Does Not Have to Rescind an In Absentia Order Where EOIR Sent the Notice of Hearing with the Time and Place to the Noncitizen’s Address and the Post Office Did Not Return the Notice
Facts
Lourdes Penja-Mejia is from Honduras. On August 14, 2002, she entered with United States without being admitted or paroled. At that time, the government served her with a Notice to Appear ordering her to appear for a hearing before an immigration judge at a date and time to be set in Harlingen, Texas. On September 5, 2002, the Immigration Court sent her a notice of hearing to the address she provided informing her that they scheduled her immigration hearing for October 31, 2002. Ms. Penja-Mejia did not appear at the hearing and the Immigration Judge (IJ) ordered her removed in absentia.
On February 20, 2018, Ms. Pena-Mejia filed a motion to reopen with the IJ claiming that she never received the notice of hearing. The IJ denied the motion finding that EOIR sent Ms. Pena-Mejia the notice of hearing by regular mail to the address she provided. The IJ noted that the post office did not return the notice of hearing to the immigration court as undeliverable. The IJ held that Ms. Pena-Mejia did not rebut the presumption of delivery of the notice of hearing based on the factors set forth in Matter of M-R-A-, 24 I.&N. Dec. 665, 674 (BIA 2008). The BIA upheld the IJ’s findings and dismissed Ms. Pena-Mejia’s appeal. After the Supreme Court’s decision in Pereira v. Sessions, Ms. Pena-Mejia filed another motion to reopen.
Legal Argument
First, Ms. Pena-Mejia argued that because the notice to appear did not specify the date, time and place of her hearing, it did not constitute a valid notice to appear and did not vest jurisdiction with the immigration court. The BIA quickly disposed of the jurisdictional argument citing to its decision in Matter of Bermudez-Cota, 27 I.&N. Dec. 441 (BIA 2018). (Bermudez-Cota held that the issue of the requirements of a notice to appear to vest jurisdiction in a case are different than the requirements of a notice to appear to stop time for cancellation of removal under INA § 240A(d). The regulations set forth the jurisdictional requirements. The regulations do not mandate that the charging document placing the noncitizen in proceedings contain the time and place of the hearing to vest jurisdiction in the courts. To vest jurisdiction, a two-step process is sufficient (the notice to appear followed by the notice of hearing).)
The BIA then takes the next step and critically notes that Pereira does not mandate rescission of the in absentia order of removal where the notice to appear does not contain the time and place of the hearing. I think at this point the BIA gets a little over their skis. Here is what they say:
“In contrast to the provisions of the Act at issue in Pereira, the statute regarding the entry of an in absentia order provides that “[a]ny alien who, after written notice required under paragraph (1) or (2) of section 239(a) has been provided to the alien or the alien’s counsel of record, does not attend a proceeding under this section” may be ordered removed in absentia. Section 240(b)(5)(A) of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2012). Because this statute uses the disjunctive term “or” rather than the conjunctive “and,” an in absentia order of removal may be entered if a written notice containing the time and place of the hearing was provided either in a notice to appear under section 239(a)(1) or in a subsequent notice of the time and place of the hearing pursuant to section 239(a)(2).”
Matter of Pena-Mejia, 27 I.&N. Dec. 546, 548 (BIA 2019). The BIA noted that DHS served Ms. Pena-Mejia with a notice to appear and EOIR subsequently served her with a notice of hearing. The BIA held that Pereira did not apply because Ms. Pena-Mejia did not apply for cancellation of removal and the IJ ordered her removed for reasons unrelated to the operation of the stop-time rule.
I think this argument is a little disingenuous, especially since the in absentia rule specifically lists INA §239(a) as does the stop-time rule and that the reasoning in Pereira likely applies to the in absentia statute. The BIA and the Circuit Courts may have an argument about jurisdiction as the statute is silent about jurisdiction and the regulations do not refer to Section 239(a) but here….
The BIA concludes that the Supreme Court’s ruling in Pereira rests on the specific language of the stop time rule provisions of INA § 240A(d) while Ms. Pena-Mejia’s case is governed by the failure to appear rules listed in INA § 240(b)(5)(A) and the regulations. I hope the attorneys appeal.
Matter of Pena-Mejia, 27 I.&N. Dec. 546 (BIA 2019).
NO RESCISSION FOR AN IN ABSENTIA ORDER WHERE THE NOTICE TO APPEAR LACKED THE TIME AND PLACE OF THE HEARING BUT THE NONCITIZEN DID NOT GIVE DHS HER ADDRESS
The twin case to Matter of Pena-Mejia came down on the same day. This case involves a noncitizen who refused to provide an address at which the government could contact her during removal proceedings. I am unsure how much I weight I should give to the BIA’s characterization of what happened. But, for our purposes, the rescission of an in absentia removal order where the notice to appear lacked the time and place of a hearing is not warranted where the noncitizen failed to give the government her address.
Facts
Renata Miranda-Cordiero is from Brazil. On March 8, 2005, she entered the United States without being admitted or paroled. DHS personally served her with a Notice to Appear ordering her to appear for a hearing at the immigration court in San Antonio, Texas. The notice to appear lacked the time and place of the hearing. Ms. Miranda-Cordiero refused to provide an address where the government could contact her during removal proceedings. (I am just repeating the facts in the opinion). EOIR scheduled a hearing for May 11, 2005, and, not surprisingly, Ms. Miranda-Cordiero did not show up. On July 5, 2017, Ms. Miranda-Cordiero filed a motion to reopen sua sponte asking the IJ to rescind her removal order so that she could file an I-601A provisional waiver based on her marriage to a U.S. citizen and her approved visa petition. The IJ denied the motion stating that he lacked jurisdiction over the waiver. But suggested that she apply for a waiver with USCIS. The IJ also found that Ms. Miranda-Cordiero did not allege any exceptional situation or circumstances that would warrant sua sponte reopening.
Legal Arguments
Ms. Miranda-Cordiero appealed arguing that the IJ erred (1) by stating that a provisional waiver was available to her despite her outstanding removal order; and, (2) by providing no analysis for his finding that she did not present exceptional circumstances. She also argued that under Pereira the notice to appear was invalid because it lacked the time and place of the hearing. She further claimed that if EOIR reopened her removal proceedings she would be eligible for cancellation of removal for non-lawful permanent residents – INA § 240A(b).
The BIA addressed the Pereira argument first. The BIA held that a putative notice to appear is not invalid for all purposes. And, that a notice to appear that lacks the time and place of the hearing can initiate removal proceedings. The BIA cites to its decisions in Matter of Bermudez-Cota, 27 I.&N. Dec. 441 (BIA 2018) and in Matter of Mendoza-Hernandez, 27 I.&N. Dec. 520 (BIA 2019). The BIA held that Pereira does not mandate that EOIR rescind Ms. Miranda-Cordiero’s in absentia removal order. The BIA reads the language of INA § 240(b)(5) as allowing the government to provide the time and place of the hearing either in the notice to appear or in the notice of hearing. The BIA says:
“Because the statute uses the disjunctive term “or” rather than the conjunctive “and,” an in absentia order of removal may be entered if a written notice containing the time and place of the hearing was provided either in a notice to appear under section 239(a)(1) or in a subsequent notice of the time and place of the hearing pursuant to section 239(a)(2).”
But, the actual language of the statute says:
“In removal proceedings under section 1229a of this title, in the case of any change or postponement in the time and place of such proceedings, subject to subparagraph (B) a written notice shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying – (i) the new time or place of the proceedings.*.*.*.”
INA § 239(a)(2) (emphasis added). Section 239(a)(2) only seems to apply when there is a change or postponement of the hearing; not where DHS failed to list the initial time and place of the hearing. The BIA noted that Ms. Miranda-Cordiero never gave the government her address so she really could not expect to receive notice. The BIA then cites to several circuit court decisions in support of their holding.
As to Ms. Miranda-Cordiero’s other arguments, the BIA made short shrift of them. They found that in determining whether the courts should reopen a case sua sponte is a discretionary determination that the court makes based on the totality of the circumstances. Ms. Miranda-Cordiero’s case did not present an exceptional situation that warrants the exercise of discretion to reopen sua sponte even though there was a provisional waiver available. The BIA noted that individuals who are subject to a final removal order may qualify for a provisional waiver under certain circumstances. 8 C.F.R. § 212.7(e)(4)(iv). Matter of Miranda-Cordiero, 27 I.&N. Dec. 551, 555 & n.3. The BIA then quotes itself, “the power to reopen sua sponte “is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.” Matter of J-J-, 21 I.&N. Dec. 976, 984 (BIA 1997). They dismissed the appeal.