In re Laparra-DeLeon

• Decision Date: 18 January 2022
• Docket Number: Interim Decision 4034
• Citation: 28 I&N Dec. 425
• Parties: Matter of Sergio Rodolfo LAPARRA-DeLeon, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

28 I&N Dec. 425

Matter of Sergio Rodolfo LAPARRA-DeLeon, Respondent

Interim Decision No. 4034

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

January 18, 2022

A respondent receives sufficient written notice to support the entry of an in absentia order of removal, even if he or she was served with a noncompliant notice to appear that did not specify the time or place of the hearing, where the respondent was properly served with a statutorily compliant notice of hearing specifying this information. Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021), distinguished. Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019), and Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019), reaffirmed.

FOR RESPONDENT: Lidia M. Sanchez, Esquire, Providence, Rhode Island

FOR THE DEPARTMENT OF HOMELAND SECURITY: Meggan G. Johnson, Associate Legal Advisor

BEFORE: Board Panel: GREER and O'CONNOR, Appellate Immigration Judges; DE CARDONA, Temporary Appellate Immigration Judge.

GREER, Appellate Immigration Judge

On July 19, 2021, the respondent filed a motion with this Board to reopen and terminate his removal proceedings, or alternatively to reopen and rescind the in absentia removal order entered against him on April 12, 2010, based on the United States Supreme Court's decisions in Pereira v. Sessions, 138 S.Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021). We conclude that these decisions do not alter the validity of the in absentia removal order entered against the respondent. Although he was served with a notice to appear that did not specify the time or place of the hearing at which he was ordered removed in absentia, he was later served with a notice of hearing that complied with the statute and specified this information as well as the consequences of failing to appear for his hearing. These documents vested the Immigration Judge with jurisdiction over his proceedings, supplied the respondent with sufficient notice of the time and place of his hearing, and informed him he could be ordered removed in absentia if he failed to appear. Accordingly, his motion will be denied.

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I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guatemala who entered the United States without inspection at an unknown place and date. The Department of Homeland Security ("DHS") personally served him with a notice to appear on July 15, 2008, ordering him to appear for a hearing before an Immigration Judge in Boston, Massachusetts, at a date and time to be set. On March 19, 2010, the Immigration Court sent a notice of hearing to the respondent at the address he provided, notifying him that his initial hearing was scheduled to take place before the Boston Immigration Court on April 8, 2010, at 1:30 p.m. and of the consequences of failing to attend this hearing. When the respondent did not appear at that hearing, the Immigration Judge ordered him removed in absentia.

Citing Pereira v. Sessions, the respondent moved to reopen and terminate his proceedings, arguing that the Immigration Judge had no jurisdiction over the proceedings because he was served with a notice to appear that did not list the date and time of the removal hearing. The Immigration Judge denied the respondent's motion based on the Board's decision in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018). In that case, we distinguished Pereira and held that a notice to appear that does not specify the time or place of a noncitizen'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) (2018), so long as a notice of hearing specifying this information is later served on the noncitizen. The respondent appealed from the Immigration Judge's denial of his motion, and we dismissed the respondent's appeal from the Immigration Judge's decision.

In his current motion to terminate, the respondent relies on the Supreme Court's decision in Niz-Chavez v. Garland to again argue that his notice to appear failed to vest the Immigration Judge with jurisdiction. He additionally argues that his in absentia removal order must be rescinded because he was not served with "written notice" of his hearing, as required by section 240(b)(5)(A) of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2018).^[1]

II. LEGAL BACKGROUND

The noncitizen in Pereira v. Sessions was issued a notice to appear in 2006 that did not specify the date and time for his initial hearing, and a notice of hearing containing this information was sent to the wrong address in 2007. The noncitizen did not appear and was ordered removed in absentia. In 2013,

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the in absentia removal order was rescinded and proceedings were reopened because the noncitizen did not receive the notice of hearing. In reopened proceedings, the Immigration Judge relied on Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011), abrogated by Pereira, 138 S.Ct. at 2114, to conclude that service of the notice to appear had triggered the so-called "stop-time" rule under section 240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A) (2018). The "stop-time" rule provides that service of "a notice to appear under section 239(a)" ends a noncitizen's accrual of continuous residence and physical presence in the United States for purposes of cancellation of removal. Section 240A(d)(1)(A) of the Act. In Matter of Camarillo, we held that the service of a notice to appear triggers the "stop-time" rule, even if the notice to appear does not include the date and time of the initial hearing. Because the noncitizen in Pereira had not accrued the requisite period of continuous presence following service of the notice to appear, the Immigration Judge denied his application for cancellation of removal. We dismissed the noncitizen's appeal.

The Supreme Court's decision in Pereia abrogated Matter of Camarillo, holding that a noncompliant notice to appear which does not specify the time or place of the initial removal hearing is not "a notice to appear under section 239(a)" and cannot trigger the "stop-time" rule. The Court left open whether a statutorily compliant notice of hearing could cure a noncompliant notice to appear by separately providing the required time and place information and trigger the "stop-time" rule.

Following Pereira, this Board issued Matter of Bermudez-Cota, addressing the threshold issue of whether jurisdiction vested with the Immigration Court based on a noncompliant notice to appear that does not specify the time or place of the initial hearing. As noted, we distinguished Pereira in Matter of Bermudez-Cota, noting that the "dispositive question" before the Court in Pereira "was whether a notice to appear that does not specify the time and place at which proceedings will be held . . . triggers the 'stop-time' rule for purposes of cancellation of removal." 27 I&N Dec. at 443 (citation omitted). We held that a noncompliant notice to appear vested an Immigration Court with jurisdiction over a case, and thus Pereira did not require termination, so long as a noncitizen was later served with a notice of hearing that complies with the requirements of section 239(a)(2) and specifies the time and place of the removal hearing.

Most circuits have agreed with our holding in Matter of Bermudez-Cota, although some have treated the regulations governing the docketing of a case before an Immigration Judge through the filing of a notice to appear as a claim-processing rule. See Matter of Arambula-Bravo, 28 I&N Dec. 388, 391-92 & n.3 (BIA 2021) (collecting cases). The Board clarified these divergent views in Matter of Rosales Vargas and Rosales Rosales, 27 I&N

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Dec. 745, 753 (BIA 2020), recognizing that certain rules under the regulations for initiating proceedings are "internal docketing or claim-processing rule[s]" that do not "serve to limit subject matter jurisdiction" of the Immigration Courts.

In the in absentia context, the Board held in Matter of Pena-Mejia, 27 I&N Dec. 546, 548 (BIA 2019), that an Immigration Judge may enter an in absentia order of removal "if a written notice containing the time and place of the hearing was provided either in a notice to appear under section 239(a)(1), or in a subsequent notice [of hearing specifying] the time and place of the hearing pursuant to section 239(a)(2)." Accord Matter of Miranda-Cordiero, 27 I&N Dec. 551, 553 (BIA 2019). In reaching this holding, the Board relied on the disjunctive wording of section 240(b)(5)(A), decisions from the jurisdictional context, like Matter of Bermudez-Cota, and the relevant regulations, which do not require a notice to appear to include time and place information to vest jurisdiction with an Immigration Court. In a companion case, Matter of Miranda-Cordiero, we interpreted section 240(b)(5)(B) and held that rescinding an in absentia removal order was not required if a noncitizen failed to provide an address where a notice of hearing could be sent pursuant to section 239(a)(1)(F) of the Act, regardless of whether the notice to appear specified the time and place of the hearing. In both Matter of Pena-Mejia and Matter of Miranda-Cordiero, we viewed the jurisdictional issue and when it is appropriate to enter an in absentia removal order as distinct from the "stop-time" rule issue considered in Pereira, because the latter is tethered to "specific language in the 'stop-time' provisions of section 240A(d)(1) of the Act, while the [former are] governed by the rules regarding failure to appear in section 240(b)(5)(A), as well as the regulations applicable to that statute." Matter of Pena-Mejia, 27 I&N Dec. at 550; see also Matter of Miranda-Cordiero, 27 I&N Dec. at 553.

To answer the question left open in Pereira, namely, whether a compliant notice of hearing could cure a noncompliant notice to appear by separately providing time and...