In re Bermudez-Cota

• Decision Date: 31 August 2018
• Docket Number: Interim Decision #3935
• Citation: 27 I&N Dec. 441
• Parties: Matter of German BERMUDEZ-COTA, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

27 I&N Dec. 441

Matter of German BERMUDEZ-COTA, Respondent

Interim Decision #3935

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

August 31, 2018

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, 8 U.S.C. § 1229(a) (2012), so long as a notice of hearing specifying this information is later sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.

FOR RESPONDENT: Selma Taljanovic, Esquire, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Joey L. Caccarozzo, Assistant Chief Counsel

BEFORE: Board Panel: GUENDELSBERGER, KENDALL CLARK, and KELLY, Board Members.

KENDALL CLARK, Board Member:

In a decision dated October 3, 2017, an Immigration Judge denied the respondent's requests for a continuance and administrative closure but granted his request for voluntary departure. The respondent has appealed from this decision. While his appeal was pending, the respondent filed a motion to terminate his removal proceedings. The Department of Homeland Security ("DHS") opposes the respondent's appeal and motion. The appeal will be dismissed and the motion to terminate will be denied.

The respondent is a native and citizen of Mexico who arrived in the United States on or about April 30, 1991, without being admitted or paroled. On August 28, 2013, the respondent was personally served with a notice to appear, which 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 in written pleadings that he was properly served with the August 28, 2013, notice to appear. On September 9, 2013, the Tucson, Arizona, Immigration Court mailed a notice of hearing to the address the respondent had provided to immigration authorities. This notice provided that the respondent's hearing was scheduled to take place on May 13, 2014, at 1:00 p.m. at 300 West Congress Street, Suite 300, Tucson, Arizona, 85701. The respondent appeared at this and numerous subsequent hearings.

At his last hearing on October 3, 2017, the respondent sought a continuance or administrative closure based on his potential eligibility for adjustment of status. The Immigration Judge denied his requests for a continuance and administrative closure. However, he granted the respondent voluntary departure. The respondent timely appealed from this decision and filed a motion to terminate while his appeal was pending. We will address his motion first.

The respondent argues that his proceedings should be terminated in light of the Supreme Court's recent decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). The alien in Pereira was served with a notice to appear that ordered him to appear at the Immigration Court in Boston, Massachusetts, at a time and date to be set. The DHS filed the notice to appear with the Immigration Court, which, in turn, mailed a notice of hearing to the alien, setting the time and date for his removal hearing. However, that notice was not mailed to the correct address and was returned as undeliverable. The alien did not appear at his hearing and was ordered removed in absentia. His removal proceedings were later reopened after he established that he did not receive notice of his hearing. He then applied for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1) (2012). His application was denied because the Immigration Judge and the Board determined that his notice to appear triggered the so-called "stop-time" rule in section 240A(d)(1)(A) of the Act.

To establish his eligibility for cancellation of removal, the alien in Pereira was required to show that he had been continuously physically present in the United States for a period of 10 years immediately preceding the date of his application for such relief. Section 240A(b)(1)(A) of the Act. However, under the "stop-time" rule, continuous physical presence is deemed to end "when the alien is served a notice to appear under section 239(a)" of the Act, 8 U.S.C. § 1229(a) (2012). According to section 239(a), a notice to appear must "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," among other things, "[t]he time and place at which the proceedings will be held." Section 239(a)(1)(G)(i) of the Act.

The Supreme Court stated that the "narrow" and "dispositive question" in Pereira was whether "a 'notice to appear' that does not specify the 'time and place at which the proceedings will be held' . . . trigger[s] the stop-time rule." Pereira, 138 S. Ct. at 2110, 2113. Because the notice to appear served on the alien did not "inform [him] when and where to appear for removal proceedings," the Court held that it was not a "'notice to appear under section [239(a)]' and therefore does not trigger the stop-time rule." Id. at 2110.

The respondent contends that, like the alien in Pereira, he received a notice to appear that was legally defective because it did not specify the timeand 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 [the 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. We believe that this argument is misguided.

Pereira involved a distinct set of facts. Unlike the alien in that case, the respondent here was properly served with both a notice to appear and a subsequent notice of hearing. The latter specified the time and place of his hearing, and he attended this and subsequent hearings. 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." Pereira, 138 S. Ct. at 2115. The respondent in this case clearly was sufficiently informed to attend his hearings.

In addition, the respondent is not seeking cancellation of removal, and the "stop-time" rule is not at issue, so Pereira is distinguishable. 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. Id. at 2110, 2113. 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." See Chafin v. Chafin, 568 U.S. 165, 172 (2013) (providing that the Federal courts do not give advisory opinions, "advising what the law would be upon a hypothetical state of facts" (citation omitted) (internal quotation mark omitted)). Nor would the Court have repeatedly emphasized that the dispositive question was whether a document that fails to specify the time and place of proceedings triggers the "stop-time" rule.

Significantly, the Court did not purport to invalidate the alien's underlying removal proceedings or suggest that proceedings should be terminated. In fact, the Court remanded the matter for "further proceedings." Pereira, 138 S. Ct. at 2120. The Court also acknowledged a regulation promulgated in 1997 "stating that a 'notice to appear' served on a noncitizenneed only provide 'the time, place and date of the initial removal hearing, where practicable.'" Id. at 2111 (emphasis added) (quoting Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,332 (Mar. 6, 1997) (codified at 8 C.F.R. § 3.18 (1998))).¹ Furthermore, the Court referred to the Government's admission that, in the last 3 years, almost 100 percent of the notices to appear it served omitted the time and date of the proceeding and stated that the time, place, or date of the alien's initial hearing was "to be determined." Id. (citation omitted). While the Court held that such a notice to appear is insufficient to trigger the "stop-time" rule, it did not indicate that proceedings involving similar notices to appear, including those where cancellation of removal, asylum, or some other form of relief had been granted, should be invalidated or that the proceedings should be terminated.

Admittedly, the Court questioned arguments concerning the alleged inability of the DHS to specify an accurate date and time for the initial hearing on the notice to appear. Id. at 2118-19. The Court observed that prior scheduling systems "enabled DHS and the immigration court to coordinate in setting hearing dates in some cases" and stated, "Given today's advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before sending notices to appear." Id. at 2119. Nevertheless, the Court did not hold that proceedings initiated by a notice to appear that fails to specify a time, date, and place for...