In re Arambula-Bravo
| Decision Date | 23 September 2021 |
| Docket Number | 4028 |
| Court | U.S. DOJ Board of Immigration Appeals |
| Parties | 28 I&N Dec. 388 (BIA 2021) Matter of Josefina ARAMBULA-BRAVO, Respondent |
(1) A Notice to Appear that does not specify the time and place of a respondent's initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent's removal proceedings. Pereira v Sessions, 138 S.Ct. 2105 (2018), and Niz-Chavez v Garland, 141 S.Ct. 1474 (2021), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.
(2) A Notice to Appear that lacks the time and place of a respondent's initial removal hearing constitutes a "charging document" as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen's grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).
FOR RESPONDENT: Murray D. Hilts, Esquire, San Diego, California
In a decision dated June 19, 2018, the Immigration Judge found the respondent removable as charged and denied her applications for relief. The respondent has appealed from this decision. She contends that because the Notice to Appear ("NTA") initiating removal proceedings against her did not identify the time and place of her initial removal hearing, it was insufficient both to vest the Immigration Court with jurisdiction and to terminate her parole. We requested and received supplemental briefs from the parties and amici curiae.[1] The respondent's appeal will be dismissed.
The respondent, a native and citizen of Mexico, has twice been previously removed under a different name and Alien Registration Number. Following a September 2008 arrest for unlawfully transporting noncitizens into the United States in violation of sections 274(a)(1)(A)(ii) and (v)(II) of the Immigration and Nationality Act, 8 U.S.C. §§ 1324(a)(1)(A)(ii), (v)(II) (2006), the respondent was granted parole on October 23, 2009, expiring on April 20, 2010. Within days of sentencing, on February 12, 2010, the Department of Homeland Security ("DHS") served her with an NTA. The NTA ordered the respondent to appear before an Immigration Judge at a time and date "to be set." Six days later, a notice of hearing was mailed to the respondent, providing her with the time, date, and place of her initial removal hearing, at which she appeared.
The Immigration Judge held that the respondent's parole terminated upon service of the NTA, rendering her removable as charged under section 212(a)(6)(A)(i) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), as a noncitizen present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General. The Immigration Judge then concluded that the respondent's criminal conviction was an aggravated felony, which rendered her ineligible for cancellation of removal and voluntary departure. See sections 240A(b)(1)(C), 240B(b)(1)(C) of the Act, 8 U.S.C. §§ 1229b(b)(1)(C), 1229c(b)(1)(C) (2018); see also section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii). The Immigration Judge also determined that she was ineligible for adjustment of status because she was inadmissible to the United States. See section 245(a)(2) of the Act, 8 U.S.C. § 1255(a)(2) (2018). This appeal followed.
Relying on Pereira v. Sessions, 138 S.Ct. 2105 (2018), the respondent contends that because her NTA did not designate the time and place of her initial removal hearing, it was insufficient to vest the Immigration Court with jurisdiction. She also submits that because, under Pereira, the NTA could not trigger the "stop-time" rule under section 240A(d)(1) of the Act for the purposes of cancellation of removal, it likewise could not terminate her parole. The respondent, therefore, maintains that she is not inadmissible as charged under section 212(a)(6)(A)(i) of the Act and that she is eligible for cancellation of removal, adjustment of status, and voluntary departure. We review these issues of jurisdiction, removability, and the respondent's eligibility for the requested relief de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2021). For the reasons set forth below, we affirm the Immigration Judge's decision.
We reject the respondent's assertion that the Immigration Court lacked jurisdiction over her removal proceedings under Pereira because she was served with an NTA that did not include the time and place of her initial removal hearing. In Pereira, the Supreme Court emphasized the narrowness of its holding, which stated that "[a] putative notice to appear that fails to designate the specific time or place of [a] noncitizen's removal [hearing] is not a 'notice to appear under [section 239(a) of the Act, 8 U.S.C. § 1229(a) (2018), ]' and so does not trigger the stop-time rule" for terminating a noncitizen's continuous physical presence for purposes of cancellation of removal. Pereira, 138 S.Ct. at 2114-15 ().
We explained in Matter of Bermudez-Cota, 27 I&N Dec. 441, 443 (BIA 2018), that the "narrow" holding of Pereira specifically related to the "stop-time" rule, and we observed that "the Court did not purport to invalidate the [noncitizen's] underlying removal proceedings or suggest that proceedings should be terminated." We noted that while 8 C.F.R. § 1003.14(a) (2018) states that "[j]urisdiction vests . . . when a charging document is filed," the regulation did not specify what information must be included in the "charging document" or mandate that the document specify the time and place of the removal hearing before jurisdiction will vest. Id. at 444-45. Therefore, we held that an NTA that does not specify the time and place of the initial removal hearing could be remedied by the service of a subsequent notice of hearing and was sufficient to vest an Immigration Judge with jurisdiction over the proceedings. Id. at 447.
We further clarified in Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745, 751-52 (BIA 2020), that certain rules regarding the initiation of proceedings in 8 C.F.R. § 1003.14 are "claim-processing" rules that do not implicate the subject matter jurisdiction of the Immigration Court. Specifically, we explained that an NTA that does not include the address of the Immigration Court where the DHS will file the charging document as required by 8 C.F.R. § 1003.15(b)(6) (2020), or include a certificate of service indicating the Immigration Court in which the charging document is filed as required by 8 C.F.R. § 1003.14(a), still vests the Immigration Court with subject matter jurisdiction. Id. at 753.
The United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, has deferred to the Board's interpretation in Matter of Bermudez-Cota and its progeny. See Aguilar Fermin v. Barr, 958 F.3d 887, 893-95 (9th Cir. 2020) (); Karingithi v. Whitaker, 913 F.3d 1158, 1161-62 (9th Cir. 2019) (deferring to Matter of Bermudez-Cota and holding that the Immigration Judge had jurisdiction even though the NTA did not specify the time and date of the removal proceedings).[2] Recently, the Ninth Circuit plainly stated in United States v. Bastide-Hernandez, 3 F.4th 1193, 1196 (9th Cir. 2021), that the Immigration Court's jurisdiction "vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing."
While this appeal was pending, the Supreme Court issued Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021). Several of the amici contend that, in light of Niz-Chavez, our decisions in Matter of Bermudez-Cota and Matter of Rosales Vargas and Rosales Rosales can no longer stand. We disagree.
Nothing in Niz-Chavez requires a different result. That case addressed whether an NTA that is deficient under Pereira for purposes of the stop-time rule can be cured by the subsequent service of a hearing notice that provides the required information. Niz-Chavez, 141 S.Ct. at 1479 (). But neither Pereira nor Niz-Chavez purport to require termination of removal proceedings for lack of jurisdiction based on the absence of information required under section 239(a) of the Act. Like Pereira, Niz-Chavez addresses only the applicability of the stop-time rule-it is "the next chapter in the same story." Id. at 1479 () (emphasis added).
The only question addressed by Niz-Chavez-whether an NTA that is statutorily deficient for purposes of the stop-time rule can be cured by the subsequent service of a notice containing the required information-is immaterial to jurisdiction. The absence of the information required by section 239(a) is not a "jurisdictional defect." United States v. Lira-Ramirez, 951 F.3d 1258, 1260 (10th Cir. 2020); see also Matter of Bermudez-Cota 27 I&N Dec. at 441, 444-45; Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. at 751-53 (...
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