In re Fernandes
| Decision Date | 04 August 2022 |
| Docket Number | 4050 |
| Parties | Matter of Alexandre Ricardo Marcelo FERNANDES, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
U.S Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
(1) The time and place requirement in section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2018), is a claim-processing rule, not a jurisdictional requirement.
(2) An objection to a noncompliant notice to appear will generally be considered timely if it is raised prior to the closing of pleadings before the Immigration Judge.
(3) A respondent who has made a timely objection to a noncompliant notice to appear is not generally required to show he or she was prejudiced by missing time or place information.
(4) An Immigration Judge may allow the Department Homeland Security to remedy a noncompliant notice to appear without ordering the termination of removal proceedings.
FOR THE RESPONDENT: Jeffrey B. Rubin, Esquire, Boston Massachusetts
MULLANE, APPELLATE IMMIGRATION JUDGE
In a decision dated June 17, 2021, an Immigration Judge denied the respondent's motion to terminate his removal proceedings and ordered him removed from the United States. The respondent has appealed from this decision.[1] The record will be remanded.
The facts in this case are not disputed. The respondent is a native and citizen of Portugal who was admitted to the United States as a lawful [28 I&N Dec. 606 (BIA 2022)] permanent resident. On March 1, 2021, the Department of Homeland Security ("DHS") personally served a notice to appear on the respondent. The notice to appear ordered the respondent to appear before an Immigration Judge at the Boston Immigration Court at a date and time "to be set." DHS filed the notice to appear with the Boston Immigration Court on March 10, 2021. On March 12, 2021, the Immigration Court mailed to the respondent a notice of hearing informing him that his initial hearing was scheduled to take place on March 18, 2021. The respondent was detained throughout proceedings.
The respondent appeared at the March 18, 2021, hearing and two subsequent hearings. At these hearings, no pleadings to the allegations or charge in the notice to appear were taken, and the respondent was afforded continuances to obtain counsel. At a fourth hearing on April 15, 2021, the respondent appeared with counsel. The respondent's counsel requested a continuance, which was granted until May 6, 2021.
Prior to that next hearing, the respondent filed a written pleading objecting to the adequacy of the notice to appear. At the May 6, 2021, hearing, the respondent expressly declined to concede proper service of the notice to appear and requested an opportunity to submit a motion to dismiss because the notice to appear did not specify the date and time of the initial hearing. The Immigration Judge did not address the adequacy of the notice to appear. Instead, he found that the respondent was removable as charged and afforded him an opportunity to submit a written brief. On May 25, 2021, the respondent filed a motion, which he titled a "Motion to Quash Service of Process for the Respondent's Notice to Appear and Dismiss Removal Proceedings," arguing that the notice to appear was defective because it lacked date and time information. DHS filed an opposition to the motion. On June 17, 2021, the Immigration Judge denied respondent's motion and ordered him removed. This appeal followed.
Section 239(a)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229(a)(1) (2018), provides that a "written notice" in the form of a "notice to appear" "shall be given . . . to the alien" in removal proceedings, specifying, among other things, "[t]he time and place at which the proceedings will be held." In two cases, the Supreme Court of the United States considered whether a notice to appear that did not specify the time or place of an initial hearing, as required by section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), triggered the so-called "stop-time" rule under section [28 I&N Dec. 607 (BIA 2022)] 240A(d)(1) of the INA, 8 U.S.C. § 1229b(d)(1) (2018). [2] In Pereira v. Sessions, 138 S.Ct. 2105, 2114 (2018), the Court concluded that a "notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings . . . does not trigger the stop-time rule." In Niz-Chavez v. Garland, 141 S.Ct. 1474, 1480 (2021), the Court concluded that to trigger the "stop-time" rule, a notice to appear must be a single document specifying the time and place of the hearing, and a noncompliant notice to appear missing time or place information cannot be cured by a subsequent notice of hearing specifying this information.
Following Pereira and Niz-Chavez, respondents argued that a notice to appear that failed to specify the time or place of the initial hearing deprived an Immigration Court of jurisdiction over removal proceedings. We addressed this argument in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). In that case, we held that a notice to appear that lacks the time or place information required by section 239(a)(1) is sufficient to vest an Immigration Court with subject matter jurisdiction, and neither Pereira nor Niz-Chavez affects an Immigration Judge's jurisdiction. Id. at 391. The courts of appeals, including the United States Court of Appeals for the First Circuit, in whose jurisdiction this case arises, have likewise agreed that neither Pereira nor Niz-Chavez affects an Immigration Court's jurisdiction. See United States v. Castillo-Martinez, 16 F.4th 906, 914 n.3 (1st Cir. 2021), cert. docketed, No. 21-7762 ; see also Chavez-Chilel v. Att'y Gen. U.S., 20 F.4th 138, 142-44 (3d Cir. 2021); Chery v. Garland, 16 F.4th 980, 986-87 (2d Cir. 2021); Ramos Rafael v. Garland, 15 F.4th 797, 800-01 (6th Cir. 2021); Tino v. Garland, 13 F.4th 708, 709 n.2 (8th Cir. 2021) (per curiam); Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir. 2021).
The respondent argues that, under Pereira and Niz-Chavez, an Immigration Court is only vested with jurisdiction upon the service of a single document containing all of the information required by section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1). Thus, he contends the notice to appear in his case, which failed to specify the time and date of his initial hearing, did not vest the Immigration Court with jurisdiction over his removal proceedings.
We adhere to our view in Matter of Arambula-Bravo and the view of the courts of appeals that have addressed the issue that section 239(a)(1) is not a jurisdictional provision. Our holding in Matter of Arambula-Bravo, however, did not answer whether section 239(a)(1) is a non-jurisdictional claim-processing rule or what should be done if there is a timely objection to [28 I&N Dec. 608 (BIA 2022)] a noncompliant notice to appear. See 28 I&N Dec. at 392 n.3 (reserving these issues). The respondent argues that: (1) the time and place requirement in section 239(a)(1)(G) of the INA, 8 U.S.C. § 1229(a)(1)(G), is a mandatory claim-processing rule; (2) his noncompliant notice to appear violated this claim-processing rule because it failed to specify the date and time of his initial hearing; (3) since he raised a timely objection to this violation, he is not required to show prejudice arising from the violation; and (4) the only remedy for a violation of section 239(a)(1)(G) is a dismissal or termination of the proceedings upon the respondent's timely objection. Accordingly, he argues that the Immigration Judge erred in denying his motion to terminate. We address these arguments in turn.
Some of the courts of appeals have characterized section 239(a)(1) as a claim-processing rule. See Chavez-Chilel, 20 F.4th at 143; Martinez-Perez v. Barr, 947 F.3d 1273, 1277-79 (10th Cir. 2020); Perez-Sanchez v. U.S. Att'y Gen., 935 F.3d 1148, 1153 (11th Cir. 2019); Ortiz-Santiago v. Barr, 924 F.3d 956, 963 (7th Cir. 2019). As a general matter, "claim-processing rules" are those that "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at specified times." Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). Claim-processing rules do not implicate the jurisdiction of a tribunal. Id.
We conclude that the time and place requirement in section 239(a)(1) is a claim-processing rule, not a jurisdictional requirement. Congress has not made the Immigration Courts' jurisdiction dependent upon the content of a notice to appear. See, e.g., Pierre-Paul v. Barr, 930 F.3d 684, 692 (5th Cir. 2019), abrogated on other grounds by Niz-Chavez, 141 S.Ct. at 1485. Moreover, like other claim-processing rules, section 239(a)(1) fosters "the efficient and fair administration of claims." Matter of Nchifor, 28 I&N Dec. 585, 588 (BIA 2022) (citing Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 157 (2013); Henderson, 562 U.S. at 434). By giving the respondents notice of where and when to appear for the hearing, the time and place requirement in this provision "promote[s] the orderly progress of" the removal proceedings. Henderson, 562 U.S. at 435; see also Chavez-Chilel, 20 F.4th at 143 ().
Although not jurisdictional, a claim-processing rule may be mandatory in the sense that...
To continue reading
Request your trial