In re Vargas
| Decision Date | 09 January 2020 |
| Docket Number | Interim Decision #3973 |
| Parties | Matter of Juana ROSALES VARGAS, Respondent Jonathan Jair ROSALES ROSALES, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
A notice to appear that does not include the address of the Immigration Court where the Department of Homeland Security will file the charging document, see 8 C.F.R. § 1003.15(b)(6) (2019), or include a certificate of service indicating the Immigration Court in which the charging document is filed, see 8 C.F.R. § 1003.14(a) (2019), does not deprive the Immigration Court of subject matter jurisdiction.
FOR RESPONDENT: Martha L. Cordoba, Esquire, San Leandro, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Zina Spektor, Assistant Chief Counsel
BEFORE: Board Panel: MALPHRUS, Acting Chairman; LIEBOWITZ, Board Member; NOFERI, Temporary Board Member.
LIEBOWITZ, Board Member:
In a decision dated June 27, 2019, an Immigration Judge terminated the respondents' removal proceedings based on their defective notices to appear. The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained, the proceedings will be reinstated, and the record will be remanded for further proceedings.
The respondents are a mother and son who are natives and citizens of Mexico. They concede that they were served with notices to appear dated August 13, 2015, which did not specify the time, date, or place of their initial removal hearing. The record contains notices of hearings dated November 21, 2015, which informed the respondents that their initial hearing was to be held on December 7, 2015, at 1:00 p.m. in the Los Angeles Immigration Court and included the address of the court.1
On June 27, 2019, the day of the scheduled individual calendar hearings, the respondents moved to terminate the removal proceedings. They argued that the court was without jurisdiction because their notices to appear did not include the address of the Immigration Court, citing 8 C.F.R. § 1003.15(b)(6) (2019),2 which states that the address where "the Service will file" the notice to appear must be included in the notice to appear.3
The Immigration Judge agreed that the address of the Immigration Court is "one of the required items" under 8 C.F.R. § 1003.15(b), "the regulation which governs the Immigration Court's jurisdiction." She found that because the notices to appear omitted the court's address, she was without jurisdiction over the proceedings. Thus, she granted the respondents' motion to terminate.
The DHS argues that the Immigration Judge's decision is inconsistent with Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), where we interpreted the applicable regulations, and with Karingithi v. Whitaker, 913 F.3d 1158, 1159-62 (9th Cir. 2019), where the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, deferred to our interpretation. Relying on 8 C.F.R. § 1003.18 (2019), the DHS contends that the defective notices to appear were remedied when notices of hearing providing the time, date, and place of the hearing were later sent to the respondents.4
The respondents counter that jurisdiction over these proceedings did not vest with the Immigration Court because the notices to appear did not (1) givethem notice of the address of the Immigration Court where the DHS would be filing their notices to appear, as required by 8 C.F.R. § 1003.15(b)(6), or (2) include a certificate showing that they were served with information indicating the Immigration Court where the DHS would be filing their notices to appear, pursuant to 8 C.F.R. § 1003.14(a) (2019).5 The respondents contend that the subsequent notices of hearing providing the address of the Immigration Court cannot cure the above deficiencies in their notices to appear.
The issues before us, therefore, involve the consequences of service of a notice to appear that does not include the address of the Immigration Court or include a certificate of service indicating the Immigration Court where the DHS will file the notice to appear. Specifically, we must decide whether the Immigration Court is deprived of subject matter jurisdiction because of a deficient notice to appear. We conclude that the regulations at issue are "claim-processing" or "internal docketing" rules, which do not implicate subject matter jurisdiction, and that a deficiency in the notice to appear can be remedied by providing the information required by the regulations in a later notice of hearing.
In finding that she lacked jurisdiction, the Immigration Judge relied on Karingithi v. Whitaker, which resulted from litigation following the Supreme Court's decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). The Court in Pereira held that a notice to appear that does not specify the time or place at which proceedings will be held, as required by section 239(a)(1)(G)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1)(G)(i) (2012),does not trigger the "stop-time" rule for purposes of cancellation of removal. Id. at 2110.
Subsequent to that decision, litigants argued that a notice to appear that did not contain the time, date, or place of a hearing deprived an Immigration Judge of jurisdiction over the case. We dismissed this argument in Matter of Bermudez-Cota and held that the Supreme Court's reasoning in Pereira only informs the application of the "stop-time" rule and cannot be read to mean that a notice to appear that does not specify the time, date, or place of removal proceedings does not vest jurisdiction with the Immigration Court. Matter of Bermudez-Cota, 27 I&N Dec. at 442-44. In addition, we held that a notice to appear that does not specify the time and place of the hearing can be remedied by the service of a subsequent notice of hearing that includes the required information. Id. at 445-47.
The Ninth Circuit deferred to our holding in Matter of Bermudez-Cota, declining to extend Pereira's narrow holding beyond the context of the "stop-time" rule. Karingithi, 913 F.3d at 1160-62. Emphasizing that the Immigration Judge's jurisdiction over removal proceedings is governed by the regulations, the court stated that our interpretation of the regulations was consistent with its own. The court agreed that a notice to appear that does not specify the time and date of the proceedings is sufficient to vest jurisdiction in the Immigration Court when an alien is later served with a notice containing that information. Finding that the alien's notice to appear satisfied the regulatory requirements, the court held that the Immigration Judge had jurisdiction over the proceedings. Notably, the Ninth Circuit did not explicitly address the specific issue raised here—whether a notice to appear that does not include the address of the Immigration Court where the notice to appear will be filed is sufficient to vest jurisdiction in the court.6
We are unpersuaded by the respondents' arguments that the Immigration Court lacks jurisdiction because their notices to appear did not comply with the requirements of 8 C.F.R. §§ 1003.14(a) and 1003.15(b)(6). Initially, we note that while the first sentence of 8 C.F.R. § 1003.14(a) states that jurisdiction vests when a charging document is filed, it provides no other specifications regarding the scope of the document. See Matter of L-E-A-, 27 I&N Dec. 581, 586 (A.G. 2019) ().
Moreover, nothing in 8 C.F.R. § 1003.15(b)(6) mandates that the address of the Immigration Court is a jurisdictional requirement or that it cannot be provided subsequent to the service of the notice to appear. See id. at 586 ().7 Rather, § 1003.15(b)(6) is properly read in conjunction with other regulations as setting forth "claim-processing" or "internal docketing" rules8 that are intended to provide aliens with notice of the location of their hearings and to facilitate communication with the court where the DHS anticipates filing the notice to appear. See, e.g., 8 C.F.R. § 1003.20(a) (2019) ().
The regulatory history of 8 C.F.R. § 1003.15 supports this interpretation. The regulation was part of a group of administrative procedure rules that were amended in 1992. Executive Office for Immigration Review; Rules of Procedures, 57 Fed. Reg. 11,568 (Apr. 6, 1992) (). The Supplementary Information accompanying the interim rule states:
This new section [then designated § 3.15] clarifies and expands the information to be contained in the Order to Show Cause. Inclusion of this information will add to a more efficient and accurate administrative handling of the case. The identifying information will be provided by the Service to assist in the administrative processing of cases by the Office of the Immigration Judge.
Id. at 11,568-69 (Supplementary Information).
It is appropriate to read 8 C.F.R. § 1003.15(b), not in isolation, but in the context of the other internal docketing, procedural, and venue rules for the Immigration Courts in the regulations. Thus, 8 C.F.R. § 1003.12 (2019), entitled "Scope of rules," states: "These rules are promulgated to assist in the expeditious, fair, and proper resolution of matters coming before Immigration Judges." The rule at 8 C.F.R. § 1003.15(b)(6) was promulgated as one of a number of procedural rules that govern the Immigration Courts. As the Summary accompanying the interim rules stated, ...
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