Goncalves Pontes v. Barr

Decision Date06 September 2019
Docket NumberNo. 19-1053,19-1053
Citation938 F.3d 1
Parties Danielson Mendes GONCALVES PONTES, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
CourtU.S. Court of Appeals — First Circuit

Jerome P. Mayer-Cantu, with whom Philip L. Torrey and Crimmigration Clinic, Harvard Law School, were on brief, for petitioner.

Kari Hong, Ninth Circuit Appellate Program, Boston College Law School, on brief for Retired Immigration Judges et al., amici curiae.

Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, Daniel E. Goldman and Brianne Whelan Cohen, Senior Litigation Counsels, Office of Immigration Litigation, were on brief, for respondent.

Before Torruella, Selya, and Kayatta, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Danielson Mendes Goncalves Pontes, is a Cape Verdean national. He seeks judicial review of a final order of the Board of Immigration Appeals (BIA) ordering him removed to his homeland and denying his motions to terminate removal proceedings. Addressing a challenge to the manner in which immigration courts obtain jurisdiction over removal proceedings — a challenge that has potentially broad implications and that hinges on a question of first impression in this circuit — we conclude that the Supreme Court's decision in Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), did not invalidate the Notice to Appear (NTA) that served as the charging document in the petitioner's removal proceedings. Based on this conclusion, we hold that the petitioner's motions to terminate his removal proceedings were properly denied and that the BIA's final order of removal was in accordance with law. Accordingly, we deny the petition for judicial review.

I. BACKGROUND

The petitioner was admitted to the United States and became a lawful permanent resident on March 2, 2010. On December 20, 2013, he was convicted in a Massachusetts court of violating a protective order. See Mass. Gen. Laws ch. 209A, § 7. In September 2017, federal authorities served him with an NTA, which informed him that he was being charged with removability based on the protective-order conviction, see 8 U.S.C. § 1227(a)(2)(E)(ii), and directed him to appear in the immigration court in Boston on an unspecified future date.

In January of 2018, the petitioner was taken into custody by Immigration and Customs Enforcement agents and detained at a Massachusetts correctional facility. The following month, he was served with a notice of hearing, which directed him to appear in the Boston immigration court on February 22, 2018, at 1:00 p.m. The petitioner participated in that hearing remotely from the correctional facility, and the proceedings were continued on March 1. At the March hearing, the petitioner submitted written pleadings admitting the factual allegations of the NTA, conceding removability as charged, and indicating his intention to apply for relief from removal. Although the petitioner initially signaled that he would seek cancellation of removal, see id. § 1229b, he subsequently abandoned that avenue and sought only adjustment of status, see id. § 1255, with a request in the alternative for voluntary departure.

After a two-day hearing in July of 2018, the immigration judge (IJ) denied the petitioner's application for relief (including his request for voluntary departure) and ordered him removed to Cape Verde. The IJ assumed, arguendo, that the petitioner had satisfied the statutory eligibility requirements for adjustment of status, see id. § 1255(i)(2), but found that "significant adverse factors ... weigh[ed] heavily against a discretionary grant of adjustment of status." This compendium of adverse factors included restraining orders filed against him by several women as a result of violent or threatening behavior.

The petitioner appealed to the BIA. While his appeal was pending, the petitioner filed two alternative motions seeking either to terminate removal proceedings or to remand to the immigration court. In these motions, he contended that — under Pereira, which the Supreme Court had decided some weeks before his July hearing — his NTA was ineffective as a charging document because it failed to include the date and time of the contemplated removal hearing. Consequently, he posited, the immigration court lacked jurisdiction over his case and the removal order was a nullity.

On December 28, 2018, the BIA dismissed the petitioner's appeal, adopting and affirming the IJ's decision. Denying the petitioner's motions to terminate the proceedings or to remand, the BIA determined that Pereira did not undermine the immigration court's jurisdiction. In support, the BIA noted that it had rejected essentially the same argument in an earlier case. See In re Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018).

This timely petition for judicial review followed. See 8 U.S.C. § 1252.

II. ANALYSIS

In this venue, the petitioner challenges only the BIA's denial of his motions to terminate the proceedings. As framed, his challenge rests on a purely legal question, and we review the BIA's answers to questions of law de novo, "with some deference to the agency's expertise in interpreting both the statutes that govern its operations and its own implementing regulations." Cabrera v. Lynch, 805 F.3d 391, 393 (1st Cir. 2015). Nevertheless, "[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Here, the NTA used to commence the petitioner's removal proceedings was issued pursuant to regulations promulgated by the Attorney General specifically to govern the commencement of removal proceedings under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 - 1537. In relevant part, these regulations provide that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court." 8 C.F.R. § 1003.14(a). The term "charging document," in turn, is defined to include "a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien." Id. § 1003.13.

The regulations also specify what information must be contained in an NTA, such as the nature of the proceedings against the alien, the legal authority for the proceedings, and the charges brought. See id. § 1003.15. Of particular pertinence for present purposes, the regulations state that an NTA need only provide the time and place of the initial hearing "where practicable." Id. § 1003.18(b).

The petitioner targets these regulations, arguing that they do not control the substantive requirements of an NTA. In his view, Congress delineated those requirements in the INA itself, see 8 U.S.C. § 1229(a), and the statute trumps the regulations. This is critically important because, even though the substantive requirements of section 1229(a) largely mirror those limned in the regulations, there is at least one significant difference. Section 1229(a) states that the time and place of the removal hearing must be specified in the notice, see id. § 1229(a)(1)(G)(i), but it omits the qualifier that this must be done only "where practicable." Analyzing this statutory provision in Pereira, the Supreme Court held that "[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 1229(a).’ " 138 S. Ct. at 2113-14.

The petitioner seizes upon this holding. He asserts that because the NTA that initiated the removal proceedings against him did not include the date and time of his contemplated hearing, it was defective as a charging document and, thus, was ineffectual to commence removal proceedings. As a result, the petitioner says, the immigration court never acquired jurisdiction over his removal proceedings, and the agency's final order of removal is a nullity.

Refined to bare essence, the petitioner challenges the Attorney General's authority to promulgate regulations governing removal proceedings that contain substantive requirements for an NTA different from those contained in section 1229(a). Given the holding in Pereira, this challenge has a patina of plausibility — but that patina dissolves upon further scrutiny.

We begin by acknowledging that Congress has granted the Attorney General broad powers to "establish such regulations ... as the Attorney General determines to be necessary" for implementation of the INA. 8 U.S.C. § 1103(g)(2). Of course, that authority — though broad — may not be exercised "in a manner that is inconsistent with the administrative structure that Congress enacted into law." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517, 108 S.Ct. 805, 98 L.Ed.2d 898 (1988) ). Thus, the efficacy of the petitioner's challenge necessarily depends on whether Congress has spoken unambiguously to this issue or, conversely, whether it has left some room in which the Attorney General is entitled to exercise his discretion. See Smith v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1765, 1778, 204 L.Ed.2d 62 (2019) ; Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778.

With respect to removal proceedings, Congress has spoken to the substantive requirements of an NTA only in section 1229(a). This provision states in pertinent part that "[i]n removal proceedings under section 1229a ..., written notice (in this section referred to as a ‘notice to appear’) shall be given ... to the alien." 8 U.S.C. § 1229(a)(1). It then provides that such a notice must specify, inter alia, "[t]he time and place at which the proceedings will be held." Id. § 1229(a)(1)(G)(i).

In Pereira, 138 S....

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22 cases
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    • United States
    • U.S. Court of Appeals — First Circuit
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  • Reading Pereira and Niz-chavez as Jurisdictional Cases
    • United States
    • Full Court Press AILA Law Journal No. 4-1, April 2022
    • Invalid date
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