In re Nchifor
| Decision Date | 24 June 2022 |
| Docket Number | Interim Decision 4047 |
| Citation | 28 I&N Dec. 585 |
| Parties | Matter of Augustine NCHIFOR, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.
FOR THE RESPONDENT: Jeffrey B. Rubin, Esquire, Boston Massachusetts
FOR THE DEPARTMENT OF HOMELAND SECURITY: Robert Weir, Assistant Chief Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; CREPPY and LIEBOWITZ, Appellate Immigration Judges.
MALPHRUS, Deputy Chief Appellate Immigration Judge:
This case was last before us on May 11, 2021, when we dismissed the respondent's appeal from an Immigration Judge's decision denying his applications for relief from removal and ordering him removed. On June 16, 2021, the respondent timely filed a motion to reopen his proceedings in light of Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021), and upon reopening, terminate the proceedings. The Department of Homeland Security ("DHS") opposes the motion. Although termination is not warranted, we will grant the motion to reopen in part and remand the record to consider the respondent's eligibility for voluntary departure.
The respondent is a native and citizen of Cameroon who, at the time he applied for admission to the United States, lacked valid immigration documents. On October 9, 2019, DHS personally served him with a notice to appear, which ordered him to appear before the Immigration Court in Jena, Louisiana, on a date and time to be set. The respondent received a subsequent notice of hearing informing him that his first hearing was scheduled to take place on December 20, 2019.[1] The respondent appeared for this hearing. Additional notices of hearing were served on the respondent informing him of the dates of his subsequent hearings. The respondent obtained counsel, conceded his removability, applied for relief from removal, and appeared for all of his hearings as scheduled. In a decision dated April 2, 2020, the Immigration Judge concluded that the respondent was removable as charged and, after conducting a merits hearing, denied his applications for relief. We dismissed the respondent's appeal from the Immigration Judge's decision, and the respondent timely filed the instant motion to reopen.
The respondent's timely motion is not premised on previously unavailable, material evidence. See section 240(c)(7)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229a(c)(7)(B) (2018); 8 C.F.R. § 1003.2(c)(1) (2021). The notice to appear, which did not specify the time or date of his initial hearing, was personally served on the respondent and in the record throughout proceedings. Rather, the respondent argues that the decision of the Supreme Court of the United States in Niz-Chavez[2] represents a change in law that warrants reopening and terminating his proceedings.[3]However, as we explain more fully below, Niz-Chavez does not represent a change in law that warrants termination.
Prior to the respondent's initial removal hearing, the United States Court of Appeals for the Fifth Circuit, in whose jurisdiction this case arises, held that the regulatory requirement for a notice to appear is "not jurisdictional but is a claim-processing rule."[4] Pierre-Paul v. Barr, 930 F.3d 684, 691 (5th Cir. 2019), abrogated on other grounds by Niz-Chavez, 141 S.Ct. at 1485.[5]As the court explained, "While 'harsh consequences' follow a failure to comply with jurisdictional rules, less harsh consequences follow a failure to comply with non-jurisdictional claim-processing rules." Id. at 692 (quoting United States v. Kwai Fun Wong, 575 U.S. 402, 409 (2015)). "A claim-processing rule is a rule that 'seek[s] to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.'" Id. (alteration in original) (quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). "A claim-processing rule is mandatory to the extent a court must enforce the rule if a party properly raises it." Id. "But an objection based on a mandatory claim-processing rule may be forfeited 'if the party asserting the rule waits too long to raise the point.'"[6] Id. (quoting Fort Bend Cty. v. Davis, 139 S.Ct. 1843, 1849 (2019)). Accordingly, the Fifth Circuit concluded that in removal proceedings, "any alleged defect with the charging document must be raised properly and can be forfeited if the [respondent] waits too long to raise it." Id. at 693.[7] The respondent in Pierre-Paul "never challenged the validity of his notice to appear before the immigration judge or the [Board]" on direct appeal. Id. Instead, he "raised the issue for the first time in his petition for review" before the Fifth Circuit. Id. Because the respondent "waited too long to raise this issue," the court concluded that he had forfeited his objection to the alleged defect in the notice to appear. Id. In reaching this conclusion, the court did not separately consider whether the missing time or place information in the notice to appear prejudiced the respondent.
As noted, the Fifth Circuit in Pierre-Paul relied on Supreme Court jurisprudence distinguishing claim-processing rules from jurisdictional requirements. See id. at 692 (collecting cases). This jurisprudence does not require a separate examination of prejudice once an objection to a claim-processing rule is deemed to be untimely and forfeited. In fact, the Court found that, even if a party could show he was prejudiced by a claim-processing violation, any objection to that violation would be invalid if untimely. See Kontrick v. Ryan, 540 U.S. 443, 460 (2004) (). In its claim-processing jurisprudence, the Court has relied on concerns regarding the efficient and fair administration of claims and the finality of decisions. See Henderson, 562 U.S. at 434 (); see also Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 157 (2013) ().
To our knowledge, the Seventh Circuit is the only circuit that has held that a valid claim-processing objection is "available for those who make timely objections, as well as those whose timing is excusable and who can show prejudice." Ortiz-Santiago v. Barr, 924 F.3d 956, 965 (7th Cir. 2019); see also Arreola-Ochoa v. Garland, 34 F.4th 603, 608 (7th Cir. 2022) ().[8] We disagree with this approach.
We instead agree with the Fifth Circuit's approach in Pierre-Paul and will apply it to motions to reopen filed outside the jurisdiction of the Seventh Circuit. Applying this approach, we conclude that the respondent, who raised an objection to the missing time or place information in his notice to appear for the first time in a motion to reopen, "waited too long to raise this issue" and forfeited his objection to this missing information.[9] Pierre-Paul, 930 F.3d at 693. Because the respondent forfeited his objection to the missing time or place information, like the Fifth Circuit, we will not separately consider whether the missing information prejudiced him.
The Fifth Circuit's approach in Pierre-Paul, which we apply today, was applicable to the respondent at the time of his removal proceedings, and it remains good law following Niz-Chavez. See Maniar v. Garland, 998 F.3d 235, 242 n.2 (5th Cir. 2021) (); see also Garcia v. Garland, 28 F.4th 644, 647 (5th Cir. 2022) ( "Pierre-Paul's continuing vitality in the aftermath of Niz-Chavez"). Niz-Chavez did not reference the Supreme Court's jurisprudence relating to claim-processing rules on which Pierre-Paul relied, nor did it address whether a respondent may raise a valid objection to missing time or place information on a notice to appear for the first time in a motion to reopen. Thus, Niz-Chavez does not represent a change in law that warrants reopening and terminating the respondent's removal proceedings.
However, we agree with the respondent that, under Niz-Chavez, his notice to appear does not preclude him from accruing the requisite period of physical presence for purposes of voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the INA, 8 U.S.C. § 1229c(b) (2018). In Matter of M-F-O-, we concluded that in light of Niz-Chavez, a notice to appear lacking time or place information does not stop an applicant for voluntary departure from accruing physical presence under section 240B(b)(1)(A) of the INA, 8 U.S.C. § 1229c(b)(1)(A). 28 I&N Dec. 408, 416 (BIA 2021) (overruling, in part, our contrary Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021)).
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