BIA Issues Notice to Appear Guidance after Pereira

By Andrew R. Arthur on September 7, 2018

On August 31, 2018, the Board of Immigration Appeals (BIA) issued a decision in the Matter of Bermudez-Cota. That decision provides guidance to the immigration courts in determining whether a Notice to Appear (NTA) that does not provide any time and/or a place of an alien's initial removal proceedings vests the courts with jurisdiction over removal proceedings under section 240 of the Immigration and Nationality Act (INA or Act). That guidance was necessary as result of questions left unanswered by the Supreme Court's decision in Pereira v. Sessions.

As I explained in my July 20, 2018, post captioned "SCOTUS Sets Up Potential Immigration Train Wreck", Pereira "could have potentially devastating consequences for removal proceedings, both presently pending and completed."

At issue in Pereira was whether an alien who had been served with an NTA that did not contain the time and date of an initial removal hearing was barred from applying for cancellation of removal for nonpermanent residents under section 240A(b)(1) of the INA. As I explained in my earlier post:

Among other requirements, to be eligible for cancellation of removal under that provision, an alien must have "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of" that application. An alien who is granted cancellation of removal receives lawful permanent residence.

Section 240A(d)(1) of the INA (also known as the "stop-time rule") contains special guidance relating to contiguous physical presence. Specifically, for purposes of cancellation of removal under section 240A(b)(1) of the INA, such physical presence is deemed to end (with limited exceptions) "when the alien is served a notice to appear under section 239(a)" of the INA.

Section 239(a)(1) of the INA states, in pertinent part:

In general.-In removal proceedings under section 240 , written notice (in this section referred to as a "notice to appear") 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 [listed items related to the case].

Among the items related to the case that are specified in section 239(a)(1) of the INA are "[t]he time and place at which the proceedings will be held," which ... was not included in Pereira's NTA. As the Court stated: "Instead, it ordered him to appear before an Immigration Judge in Boston 'on a date to be set at a time to be set.'" [Emphasis in original.]

The alien in that case had entered the United States in 2000 as a nonimmigrant and subsequently overstayed his visa. In 2006, following a traffic arrest, U.S. Immigration and Customs Enforcement (ICE) "served him (in person) with a document labeled 'Notice to Appear.'" That NTA charged him with being removable as a nonimmigrant overstay, but "did not specify the date and time of Pereira's removal hearing." Rather, it told him to appear before an immigration judge in Boston, Mass., "on a date to be set at a time to be set."

The Department of Homeland Security (DHS) did not serve that NTA on the immigration court for more than a year. The immigration court subsequently mailed a notice of hearing for a time and place certain to Pereira at his street address, rather than his post office (P.O.) box, which he had provided, and was "returned as undeliverable". Pereira therefore failed to appear, and was ordered removed in absentia.

In 2013, more than 10 years after he had entered the United States, Pereira was again arrested for driving without his lights on, and detained by DHS. The immigration court reopened his case because he had not received notice of the prior hearing. As the Court explained:

Pereira then applied for cancellation of removal, arguing that the stop-time rule was not triggered by DHS' initial 2006 notice because the document lacked information about the time and date of his removal hearing.

The immigration judge denied that application, "finding the law 'quite settled that DHS need not put a date certain on the Notice to Appear in order to make that document effective,'" and ordered Pereira removed. The BIA subsequently denied his appeal, and he filed a petition for review with the Court of Appeals for the First Circuit.

The First Circuit analyzed the question in a published decision. As the circuit court noted, section 239(a) of the INA:

[C]ontains three subsections, the first of which states:

In removal proceedings under section 1229a of this title, written notice (in this section referred to as a "notice to appear") 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 the following: ...

That subsection goes on to specify ten items, including the charges against the alien, the alien's alleged illegal conduct, and "[t]he time and place at which the proceedings will be held." ... The second subsection provides a procedure for notifying the alien in the event of a change in the time or place of the initial removal hearing. ... The third subsection directs the Attorney General to "create a system to record and preserve" the addresses and telephone numbers of aliens who have been served with notices to appear.

Pereira argued that the reference in the stop-time rule to an NTA under section 239(a) of the INA requires that the NTA contain all of the information in section 239(a)(1) of the INA, or else it would not trigger that rule.

Interestingly, he further argued that not all 10 items listed in that subsection must be provided in the same document. As the circuit court explained that argument:

Instead, two or more documents that together contain all ten items (such as the notice served on Pereira in 2006 and the hearing notice he received in 2013) could, in combination, serve as a "notice to appear." In that case, the stop-time rule would not be triggered until both documents had been served on the alien.

For support, Pereira cited to the decision of the Third Circuit in Orozco-Velasquez v. Att'y General of the United States.

The alien in that case had entered the United States at some point in 1998 illegally. As the Third Circuit explained:

On May 9, 2008, Orozco-Velasquez was served with a NTA, ordering him to appear before an IJ in Elizabeth, New Jersey, and noting that the date and time of removal proceedings were "to be set." Almost two years later, on April 7, 2010, he received by mail an otherwise identical NTA, ordering him to appear before an IJ in Newark, New Jersey. The government has acknowledged that the second NTA was sent in order to correct the address of the Immigration Court before which Orozco–Velasquez was summoned to appear. On April 12, 2010, he was served with a Notice of Hearing, announcing the date and time of the removal proceedings.

Orozco-Velasquez, again, filed an application for cancellation of removal under section 240A(b)(1) of the INA, and also moved to terminate the removal proceedings, asserting that the 2010 NTA superseded the 2008 NTA, arguing that he did not receive proper notice until he had lived in the United States for more than 10 years. The immigration judge denied the application, because he "tend[ed] to agree" that the 2010 NTA was not superseding, denied the motion to terminate, and ordered him removed.

The BIA dismissed the appeal, holding that the 2008 NTA "containing an inaccurate Immigration Court address and omitting the date and time of Orozco–Velasquez's removal proceedings, was not defective and thus provided adequate notice." In reaching this conclusion, the BIA relied upon its decision in Matter of Camarillo.

In Matter of Camarillo, the BIA held:

Under the "stop-time rule" at section 240A(d)(1) of the Immigration and Nationality Act, any period of continuous residence or continuous physical presence of an alien applying for cancellation of removal under section 240A is deemed to end upon the service of a notice to appear on the alien, even if the notice to appear does not include the date and time of the initial hearing.

That case involved cancellation of removal for permanent residents under section 240A(a) of the INA. To be granted that relief, pursuant to section 240A(a)(2) of the INA, an alien must have "resided in the United States continuously for seven years after having been admitted in any status." The immigration judge there concluded that Camarillo was admitted to the United States when she was granted adjustment of status on August 7, 2000. She received an NTA on August 29, 2005, "which included the phrase 'To be set' in the space provided for the date and time of the hearing." The Harlingen Immigration Court did not issue a notice of hearing until November 9, 2007.

The immigration judge found that she was removable, but granted her cancellation of removal, concluding that she had acquired the requisite seven years of residence required for that relief. Specifically:

According to the Immigration Judge, the Notice to Appear was not "served" for purposes of terminating the respondent's period of residence under section 240A(a)(2) of the Act until the Immigration Court's issuance of the notice of hearing informing her of the date and time for her appearance.

The BIA held that a "plausible reading" of the reference to "a notice to appear" (under section 239(a) of the INA) in section 240(d)(1) of the INA "is simply definitional, that is, it indicates what the words 'notice to appear' refer to." It continued:

Read this way, section 240A(d)(1) merely specifies the document the DHS must serve on the alien to trigger the "stop-time" rule and does not impose substantive requirements for a notice to appear to be effective in order for that trigger to occur. Thus, the statutory language at issue is ambiguous on this point.

We agree with the DHS that the key phrase is "served a notice to appear" and that the best reading of the statute as a whole is that Congress intended the phrase "under section 239(a)" after "notice to appear" to specify the document the DHS must serve on the alien to trigger the "stop-time" rule. Section 239(a) is the primary reference in the Act to the notice to appear, and it defines "the written notice" that is given to the alien to initiate removal proceedings, which it says is "referred to as a 'notice to appear.'"

Significantly, the BIA held:

According to the Immigration Judge and the respondent, two documents, the notice to appear and the notice of hearing, combine together to comprise the requisite service of a notice to appear under section 239(a) of the Act for purposes of the "stop-time" rule. No 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. To the contrary, the date of service of a notice to appear is not ineffective simply because the document does not include the specific date and time of the initial hearing.

The BIA in Orozco-Velasquez noted that the defect in Camarillo (omission of the date and time of the initial hearing) was different from the one it was considering. "Nonetheless, the BIA applied its holding in Camarillo to bar Orozco–Velasquez's application for cancellation of removal."

Orozco-Velasquez filed a petition for review. The Third Circuit reversed, holding:

Here, the government did not comply with [section 239(a)(1) of the INA's] directive until April 2010, when it served Orozco–Velasquez with a NTA correcting the address of the Immigration Court and a Notice of Hearing establishing the date and time of removal proceedings.

The First Circuit in Pereira, on the other hand, gave "Chevron deference" to the BIA's decision in Matter of Camarillo. It found that the language in section 240A(d)(1) of the INA was "ambiguous", and that "the BIA's construction of the stop-time rule is neither arbitrary and capricious nor contrary to the statute," and therefore "a permissible construction of the statute" to which it deferred.

The Supreme Court reversed that decision. It held: "A putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a 'notice to appear under section [239(a) of the INA],' and so does not trigger the stop-time rule." In making this finding, the Court admitted that it was only answering that "narrow question."

Significantly, following its statutory interpretation of the referenced provisions, the Court held:

Finally, common sense compels the conclusion that a notice that does not specify when and where to appear for a removal proceeding is not a "notice to appear" that triggers the stop-time rule. If the three words "notice to appear" mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens "notice" of the information, i.e., the "time" and "place," that would enable them "to appear" at the removal hearing in the first place. Conveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceedings. To hold otherwise would empower the Government to trigger the stop-time rule merely by sending noncitizens a barebones document labeled "Notice to Appear," with no mention of the time and place of the removal proceedings, even though such documents would do little if anything to facilitate appearance at those proceedings.

The BIA distinguished the Supreme Court's opinion in Matter of Bermudez-Cota. It held that an NTA that fails to specify the time and place of an alien's initial removal proceeding will vest jurisdiction with the immigration court, and meet the requirements of section 239(a) of the INA "so long as a notice of hearing specifying this information is later sent to the alien."

The respondent in Matter of Bermudez-Cota entered the United States in April 1991 illegally. On August 20, 2013, he was personally served with an NTA that ordered him to "appear before an Immigration Judge of the United States Department of Justice ... on a date to be set at a time to be set." The respondent conceded that he had received that NTA. Subsequently, on September 9, 2013, the Tucson Immigration Court mailed the respondent a notice of hearing at the address that he provided to immigration authorities. The respondent appeared at that hearing, and "numerous subsequent hearings".

At his last hearing in October 2017, the respondent requested a continuance or administrative closure "based on his potential eligibility for adjustment of status". The immigration judge denied those requests, but granted the respondent voluntary departure. The respondent appealed that decision, and while the appeal was pending, filed a motion to terminate.

Respondent argued in that motion that his removal proceedings should be terminated in light of Pereira. Specifically:

The respondent contend[ed] that, like the alien in Pereira, he received a notice to appear that was legally defective because it did not specify the time and place of his hearing. He argues that if the failure to specify this information renders a notice to appear defective under section 239(a)(1) of the Act for purposes of the "stop-time" rule, then it renders it defective for all purposes. Citing 8 C.F.R. § 1003.14 (2018), which provides that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when [DHS files] a charging document ... with the Immigration Court," the respondent asserts a notice to appear that fails to specify the time or place of his hearing cannot vest jurisdiction with the Immigration Judge. He therefore argues that we should terminate his proceedings.

The BIA rejected this argument as "misguided", and distinguished the respondent's case from Pereira.

First, the BIA noted that, unlike Pereira, the respondent "was properly served with both" an NTA "and a subsequent notice of hearing" that specified both the time and the place of the hearing, which the respondent attended. (Emphasis in original.) It noted:

Although the Court stated that a notice to appear that does not inform an alien when and where to appear for removal proceedings is not a "notice to appear" under section 239(a), it explained that this was so because "[c]onveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceedings." The respondent in this case clearly was sufficiently informed to attend his hearings.

Moreover, the BIA held, the respondent was not seeking cancellation of removal, and therefore the stop-time rule was not at issue. It noted:

The Court specifically stated multiple times that the issue before it was "narrow" and that the "dispositive question" was whether a notice to appear that does not specify the time and place at which proceedings will be held, as required by section 239(a)(1)(G)(i), triggers the "stop-time" rule for purposes of cancellation of removal. ... Had the Court intended to issue a holding as expansive as the one advanced by the respondent, presumably it would not have specifically referred to the question before it as being "narrow."

Further, the BIA found it significant that the Supreme Court "did not purport to invalidate" Pereira's removal proceedings, or even suggest that those proceedings be terminated. Rather, the court remanded Pereira's case "for 'further proceedings.'"

In addition, the BIA held that "terminating proceedings where service was proper under 8 C.F.R. § 1003.18(b) (2018) would require [it] to disregard a regulation that [it is] compelled to follow." That regulation states:

In removal proceedings pursuant to section 240 of the Act, the Service shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. If that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing. In the case of any change or postponement in the time and place of such proceeding, the Immigration Court shall provide written notice to the alien specifying the new time and place of the proceeding and the consequences under section 240(b)(5) of the Act of failing, except under exceptional circumstances as defined in section 240(e)(1) of the Act, to attend such proceeding. No such notice shall be required for an alien not in detention if the alien has failed to provide the address required in section 239(a)(1)(F) of the Act. [Emphasis added.]

As for respondent's argument that the BIA was required to terminate proceedings under 8 C.F.R. § 1003.14(a), the BIA noted that:

The regulation does not specify what information must be contained in a 'charging document' at the time it is filed with an Immigration Court, nor does it mandate that the document specify the time and date of the initial hearing before jurisdiction will vest.

In this regard, the BIA noted that 8 C.F.R. § 1003.15(b), "which lists the information that must be contained in a notice to appear, does not mandate that the time and date of the initial hearing must be included in that document."

The BIA concluded:

We agree with the Fifth, Seventh, Eighth, and Ninth Circuits that a two-step notice process is sufficient to meet the statutory notice requirements in section 239(a) of the Act. Accordingly, a notice to appear that does not specify the time and place of an alien's initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Act, so long as a notice of hearing specifying this information is later sent to the alien.

The BIA is correct in that the Court in Pereira addressed only the "narrow" question of whether an NTA "that does not specify the 'time and place at which the proceedings will be held, as required by" section 239(a)(1)(G)(i) of the INA will "trigger the stop-time rule." Notably, however, that provision in the INA, at least arguably, requires the provision to the alien of more information in the NTA than 8 C.F.R. § 1003.15(b) does, including "[t]he time and place at which the proceedings will be held."

It should also be noted, however, that the regulation governing the commencement of proceedings, 8 C.F.R. § 1003.14(a), states: "Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service." (Emphasis added.) No reference is made in that regulation to an NTA, and arguably, even a "defective" NTA that does not include the time and place of proceedings would be sufficient to vest jurisdiction with the immigration court.

Finally, there is no requirement in section 239(a)(1) that the NTA be a single document. Instead, that provision simply refers to "written notice". Thus, the document identified as a Notice to Appear (Form I-862) coupled with a notice of hearing would logically be sufficient to constitute a "notice to appear".

It will be interesting to see how the courts of appeals (including the Ninth Circuit, in which Matter of Bermudez-Cota arises) will view the BIA's attempts in that case to distinguish it from Pereira. In the meanwhile, similar motions to terminate in which there is an NTA that does not specify the time and place of an initial removal hearing are sufficient to vest jurisdiction with the immigration court, so long as a notice of hearing containing this information is subsequently sent to the alien.