In a July 2018 post captioned "SCOTUS Sets Up Potential Immigration Train Wreck," I described the potential dire ramifications of the Supreme Court's decision in Pereira vs. Sessions, which could potentially lead to the termination of tens of thousands of removal proceedings. A decision by the Court of Appeals for the Seventh Circuit this week could potentially prevent the vast majority of those cases from being terminated, even assuming that an intervening Board of Immigration Appeals (BIA) decision were to be overturned.
The Supreme Court in Pereira had held that an alien who been served with a Notice to Appear (NTA) that did not specify the time and date of the initial removal hearing was not subject to the "stop-time rule" from applying for cancellation of removal until a new NTA containing that information was served. Under that statutory rule, service of a NTA prior to the alien accruing the required 10 years of presence in the United States would bar that relief. Left unresolved in that decision was whether it invalidated all NTAs that did not include the time and place of the hearing. If that were the case, tens of thousands of NTAs would be invalid, given the fact that, as the Court noted, almost 100 percent of the NTAs issued over the last three years omitted the time and date of the proceedings.
In this week's ruling in Ortiz–Santiago v. Barr, the Seventh Circuit considered a claim by an alien that the immigration-court decision below, finding him removable and denying his application for cancellation of removal, should be vacated because he had received an NTA that did not specify the time and place of his initial removal proceeding. The stop-time rule was not an issue because the alien had been present illegally for at least 15 years. The circuit court held that the time and date requirement was not "jurisdictional" (such that a failure to comply would void the proceedings entirely), but rather "was a claim-processing rule, violations of which can be forfeited if an objection is not raised in a timely manner."
As the court defined it, "a claim-processing rule is one that ‘seek[s] to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times,'" and that the failure to simply comply with such a rule would not deprive the court of the authority needed to hear the case.
The alien there did not raise the failure to include the time and date on the NTA until the case was on appeal to the BIA, and after Pereira was decided. The circuit court held that raising the issue at that point was too late, notwithstanding the intervening Supreme Court decision. Interestingly, prior to Pereira, there was a contrary Seventh Circuit decision that found that a failure to include a time and date on an NTA was not a jurisdictional defect that would have justified dismissal of a removal case (a fact that the court in Ortiz-Santiago noted), but there was a Third Circuit decision, Orozco-Velasquez v. Attorney General United States, which prior to Pereira had held that the "stop-time rule" for cancellation of removal was not triggered by an NTA that did not include the time and date of the initial immigration court hearing.
The court in Ortiz-Santiago found that the alien there could have raised that decision (which was issued several months before the immigration judge below in Ortiz-Santiago issued a decision on his cancellation application) and the language of the text to claim that his proceedings should have been vacated. In failing to do so, the Seventh Circuit held, he forfeited his right to raise the issue later.
Shortly after Pereira, the BIA issued a decision (Matter of Bermudez-Cota) that attempted to respond to that Supreme Court precedent, which I detailed in a September 2018 post captioned "BIA Issues Notice to Appear Guidance after Pereira." The BIA there 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 [Immigration and Nationality Act (INA)], so long as a notice of hearing specifying this information is later sent to the alien.
The Seventh Circuit in Ortiz-Santiago did not rely on that BIA decision, holding that it "brushed too quickly over the Supreme Court's rationale in Pereira and tracked the dissenting opinion [there] rather than that of the majority." The court also concluded that "Congress itself appears to have rejected" such a "two-step approach" in passing the language setting forth the time and date requirements for an NTA in 1996.
I disagree to a certain degree with this portion of the Seventh Circuit's decision as it relates to the statute, but I note that there are problems with the implementing regulations that undercut the BIA's decision. Specifically, 8 C.F.R. § 1239.1(a) states: "Every removal proceeding conducted under section 240 of the [INA] . . . to determine the deportability or inadmissibility of an alien is commenced by the filing of a notice to appear with the immigration court." (Emphasis added.) Plainly, the immigration court cannot file a document with itself. More clearly, 8 C.F.R. § 1003.14(a) provides: "Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service." (Emphasis added.)
That said, in listing the "administrative information" that must be included in a "Notice to Appear for removal proceedings," 8 C.F.R. § 1003.15(c) does not require that such document include the time and date of the initial hearing. Thus, it is possible to conclude that pursuant to the INA and regulations, the filing of the document identified as a "Notice to Appear" (Form I-862) with the immigration court would be sufficient to commence proceedings with the immigration court even without the time and date of the proceedings, and that the subsequent proper service of a hearing notice from the immigration court would be sufficient to satisfy the "Notice to Appear" requirements in section 239(a)(1) of the INA.
The only issue is that section 239 is captioned "Initiation of Removal Proceedings," suggesting that Congress intended that the service of an NTA that contained all of the information set forth for a "Notice to Appear" in section 239(a)(1) of the INA must be provided to the alien to initiate those proceedings. Distinguishing between the "commencement" of removal proceedings and the "initiation" of such proceedings may be too much for the Supreme Court, which will ultimately have to consider the matter.
Given that, the Seventh Circuit's decision may yet prevent the termination of tens of thousands of NTAs that did not contain the time and date of the hearing. If an alien receives such an NTA, the alien can move to terminate the case, and ICE can issue a new notice complete with the time and date of the hearing in short order if not sooner. If the alien fails to do so in a timely manner, however, the alien forfeits that objection.
At the end of the day, of course, the blame rests with Congress. The former Immigration and Naturalization Service (INS) and its successors in the Department of Homeland Security (DHS) do not keep the docket for the immigration court, which then was in a separate Department of Justice (DOJ) agency (the Executive Office for Immigration Review (EOIR) and today is in an entirely different department (EOIR is still in DOJ).
The ability to provide a time and a date for an immigration court hearing is a particular problem along the border, where the U.S. Border Patrol is apprehending and processing more than 100,000 aliens per month, most of whom are on their way to spots throughout the interior of the United States, and most of whom traveling with children are simply being issued NTAs and released (according to April's Final Emergency Interim Report from the Homeland Security Advisory Council's CBP Families and Children Care Panel). How could Congress have expected a Border Patrol agent in McAllen, Texas, to schedule (or provide for the scheduling of) a removal hearing at a specific time in a specific date in, say, New York City? That is what they are expected to do, however, at least if the INA is read strictly.
Again, Congress can simply fix this problem. Add it to the list of legislation that is unlikely to be considered in the 116th Congress, however. In the interim, the Seventh Circuit and/or BIA have provided some chance that tens of thousands of removal proceedings will not have to be terminated and restarted.