Laparra-Deleon v. Garland, 22-1081
| Docket Number | 22-1081 |
| Decision Date | 04 November 2022 |
| Citation | 52 F.4th 514 |
| Parties | Sergio Rodolfo LAPARRA-DELEON, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Lidia M. Sanchez, for petitioner.
Kristin Macleod-Ball and Trina Realmuto on brief for National Immigration Litigation Alliance, Political Asylum/Immigration Representation Project, American Immigration Lawyers Association, and American Immigration Council, amici curiae.
Elizabeth K. Fitzgerald-Sambou, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, with whom Brian M. Boynton, Principal Deputy, Assistant Attorney General, Civil Division, and John W. Blakeley, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Before Barron, Chief Judge, Selya and Howard, Circuit Judges.
Sergio Rodolfo Laparra-Deleon, a native and citizen of Guatemala, petitions for review of a decision by the Board of Immigration Appeals ("BIA") that denied his motion to reopen and terminate his removal proceedings, or, in the alternative, to reopen and rescind the in absentia removal order against him. We deny the petition as to the motion to reopen to terminate the removal proceedings but grant the petition and vacate the BIA's ruling as to the motion to reopen and rescind the removal order.
Laparra-Deleon entered the United States without inspection in or around January 2002. More than six years later, in July 2008, he was served with a document from the U.S. Department of Homeland Security ("DHS"). The document charged him with removability under § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA") and ordered him "to appear before an immigration judge" for his removal proceedings in Boston, Massachusetts "on a date to be set at a time to be set."
Nearly two years later, the Immigration Court in Boston sent Laparra-Deleon another document. This document informed him that the removal proceedings "ha[d] been scheduled for a MASTER hearing before the Immigration Court on Apr[il] 8, 2010 at 1:30 P.M." in Boston. The document was returned as undeliverable to the Immigration Court.
Laparra-Deleon did not appear at the "hearing" referred to in the document from the Immigration Court. For that reason, he was ordered removed in absentia pursuant to 8 U.S.C. § 1229a(b)(5)(A). That measure provides, in relevant part:
Paragraph (1) of § 1229(a) states that "written notice (in this section referred to as a ‘notice to appear’) shall be given ... to the alien [in removal proceedings] ... specifying ... [t]he time and place at which the proceedings will be held." Paragraph (2) of § 1229(a) states, under the heading "[n]otice of change in time or place of proceedings," that "[i]n removal proceedings under section 1229a of this title, in the case of any change or postponement in the time and place of such proceedings ... a written notice shall be given ... to the alien ... specifying ... the new time or place of the proceedings."
The petition for review before us here challenges Laparra-Deleon's order of removal in absentia based on the way that the Supreme Court's decisions in Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), and Niz-Chavez v. Garland, ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021), construe § 1229(a). Unlike the case before us, in which the meaning of § 1229(a) is implicated because it is referenced by the in absentia removal provisions § 1229a(b)(5)(A) and § 1229a(b)(5)(C)(ii), Pereira and Niz-Chavez interpreted § 1229(a) only while addressing 8 U.S.C. § 1229b(d)(1), which sets forth what is known as the "stop-time rule" for cancellation of removal.
The "stop-time" rule matters because, to be eligible for cancellation of removal, a noncitizen must have resided or been physically present in the United States for a certain period. See 8 U.S.C. § 1229b(a)(2) & (b)(1)(A). Section 1229b(d)(1), in setting forth the "stop-time rule," determines when the period ends by keying the end of that period to "when the alien is served a notice to appear under section 1229(a) of this title."
Pereira and Niz-Chavez each concerned whether a noncitizen had received the "notice to appear" to which § 1229b(d)(1) refers, such that the "stop-time rule" had been triggered. See Pereira, 138 S. Ct. at 2110 ; Niz-Chavez, 141 S. Ct. at 1479. They each addressed that issue by determining what constitutes a "notice to appear" under § 1229(a)(1), as the noncitizen in each case contended that, because he had not received a "notice to appear" under § 1229(a)(1), the "stop-time rule" had not been triggered and thus the noncitizen was eligible for cancellation of removal despite the government's contrary contention. See Pereira, 138 S. Ct. at 2112 ; Niz-Chavez, 141 S. Ct. at 1479.
Pereira came first and addressed whether a document that DHS served on a noncitizen that charged the noncitizen with removability constitutes a "notice to appear" if it provides only that the date and time of day of the noncitizen's removal proceedings are "to be set." Pereira, 138 S. Ct. at 2113-15. Pereira holds that such a document does not constitute a "notice to appear" under § 1229(a)(1) because § 1229(a)(1) makes clear that a "notice to appear" must contain the "time" of a noncitizen's removal proceedings, and without setting the date or time of day of the proceedings, the document served by DHS in Pereira failed to contain the "time" of such proceedings. Id. For that reason, Pereira holds that such a document does not in and of itself trigger the "stop-time rule" and end a noncitizen's period of continuous residence or physical presence under § 1229b(d)(1). Id.
Niz-Chavez came next and addressed a question that Pereira had left open. There, the noncitizen had been served with a document that charged him with removability but did not itself constitute a "notice to appear" under § 1229(a)(1) because it did not include the "time" of his hearing, as required by § 1229(a)(1). Niz-Chavez, 141 S. Ct. at 1479. However, "the government" thereafter sent the noncitizen a document that provided the "time" of the noncitizen's removal proceedings. Id. The question before the Court in Niz-Chavez, therefore, was whether those two documents together constituted a "notice to appear" under § 1229(a)(1) and so triggered the "stop-time" rule, even though neither document on its own did. Id.
The Court held that the two documents together did not constitute a "notice to appear" under § 1229(a)(1). Id. at 1485. The Court explained that the text of § 1229b(d)(1) and § 1229(a)(1) make clear that a "notice to appear" under § 1229(a)(1) must be "a single compliant document explaining what [the government] intends to do and when" rather than multiple documents that together explain as much. Id.
Based on those two rulings, Laparra-Deleon filed a motion to reopen in 2021 with the BIA with respect to his order of removal in absentia. The petition for review that is before us here arises from the BIA's denial in 2022 of that motion to reopen, which had followed earlier related motions that Laparra-Deleon had filed either to terminate his removal proceedings or, in the alternative, to vacate his removal in absentia order but that had been denied by the Immigration Judge and the BIA.
In the 2021 motion filed by Laparra-Deleon with the BIA out of which the present petition for review arises, Laparra-Deleon relied on Pereira and Niz-Chavez in part to support his request to reopen to terminate his removal proceedings on the ground that the Immigration Court did not have jurisdiction over those proceedings. He argued in the motion that, under 8 C.F.R. § 1003.14(a), jurisdiction vests for removal proceedings only if the noncitizen subject to them has been served a "charging document." He then further argued that he had not been served such a document because the document that DHS served on him that charged him with removability, though titled a "Notice to Appear," did not set forth the "time" for the removal proceedings as Pereira and Niz-Chavez had each held that a single document must for that document to qualify as a "notice to appear" under § 1229(a)(1). The BIA rejected Laparra-Deleon's jurisdiction-based contention by relying on BIA precedents that had held that jurisdiction vests over a noncitizen's removal proceedings under the relevant regulation even if the noncitizen was not served with a "notice to appear" within the meaning of § 1229(a)(1). See Matter of Laparra-Deleon, 28 I. & N. Dec. 425, 430 (B.I.A. 2022) (citing Matter of Arambula-Bravo, 28 I. & N. Dec. 388, 390-92 (B.I.A. 2021) ).
Laparra-Deleon also relied on Pereira and Niz-Chavez in his motion to the BIA, however, to request in the alternative that the BIA reopen and rescind his order of removal in absentia, even if jurisdiction had vested over the removal proceedings by virtue of the combination of documents that he had received from DHS and the Immigration Court. In pressing this contention, Laparra-Deleon trained his focus on § 1229a(b)(5)(A), which, as we noted above, provides that a noncitizen must be ordered removed in absentia for failing to attend removal proceedings "after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to the" noncitizen or the noncitizen's counsel, and § 1229a(b)(5)(C)(ii), which provides that an order of removal in absentia may be rescinded upon a timely motion to reopen by the noncitizen only if the...
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