Mejia-Padilla v. Garland, 20-1720

• Decision Date: 29 June 2021
• Docket Number: No. 20-1720,20-1720
• Citation: 2 F.4th 1026
• Parties: Victor MEJIA-PADILLA, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

2 F.4th 1026

Victor MEJIA-PADILLA, Petitioner,

v.Merrick B. GARLAND, Attorney General of the United States, Respondent.

No. 20-1720

United States Court of Appeals, Seventh Circuit.

Argued December 2, 2020

Decided June 29, 2021

Lisa Chun, Attorney, National Immigrant Justice Center, Maria T. Baldini-Potermin, Attorney, Maria Baldini-Potermin & Associates, Chicago, IL, for Petitioner.

Brooke Maurer, Trial Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Easterbrook, Ripple, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

Petitioner Victor Mejia-Padilla ("Mejia") seeks review of an order of the Board of Immigration Appeals sustaining the denial of his statutory motion to reopen his deportation proceeding, which he filed more than six years after that proceeding closed. Mejia sought reopening on the ground that the notice to appear that initiated his deportation proceeding was defective under Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), with the result that he continued to accrue time in the United States toward the 10-year threshold for seeking cancellation of removal and is now eligible to seek such relief. Because Mejia forfeited any objection to the deficiency in the notice to appear by not timely raising it in the removal proceeding and has not shown cause for forfeiture nor prejudice resulting from the defect in the notice, we deny the petition for review.

I.

Mejia, a native and citizen of Mexico, entered the U.S. without inspection in 2005 and has lived here continuously since that time. He is married to a Mexican national who like him has no legal status in the U.S.; together, they have two children who were born here and are thus U.S. citizens. In 2011, he was placed in removal proceedings. The initial notice to appear that was served on Mejia did not include the date and time of the initial immigration hearing and thus did not comply with the governing statute, 8 U.S.C. § 1229(a)(1)(G)(i) ; Pereira , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433. As was typical prior to the Pereira decision,¹ a follow-up notice of hearing filled in that gap and Mejia appeared pro se for his initial hearing and all subsequent hearings. In March 2012, an immigration judge sustained the charge of his inadmissibility, granted Mejia voluntary departure to Mexico—the only relief for which he was eligible at that time—gave him until July 19, 2012, to depart the United States, and alternatively ordered him removed in the event he did not depart the country voluntarily by that date. Both parties waived any appeal. As it turned out, Mejia did not depart the U.S. and, although he became removable as of July 19, 2012, ICE's Chicago Enforcement and Removal Office instead placed him under an order of supervision. Mejia has complied with the terms of that order and has remained in the U.S. since that time.

In June 2018, the Supreme Court held in Pereira that a notice to appear which fails to specify the time and place at which a removal proceeding will take place, as expressly required by the governing statute, 8 U.S.C. § 1229(a)(1)(G)(i), is insufficient to trigger the "stop-time" rule ending a non-citizen's period of continuous presence in the United States, 8 U.S.C. § 1229b(d)(1)(A). The length of time a non-citizen has been continuously present in this country has a direct bearing on his ability to seek relief from deportation. In particular, an undocumented person like Mejia must have accrued 10 years of continuous presence in this country in order to become eligible for cancellation of removal, a form of discretionary relief available to a non-permanent resident who is of good moral character, does not have a specified criminal history, and can show that his removal from the U.S. would impose an "exceptional and extremely unusual hardship" to a spouse, parent, or child who is either a U.S. citizen or lawful permanent resident. § 1229b(b)(1).

Within 30 days after the Supreme Court decided Pereira , Mejia filed with the immigration court what he styled as a motion to reconsider, see 8 U.S.C. § 1229a(c)(6), but which also sought to reopen the removal proceeding, see 8 U.S.C. § 1229a(c)(7). The reconsideration portion of the motion asserted that in view of the defect in the notice to appear issued to Mejia, jurisdiction had never vested in the immigration court. Mejia therefore asked the court to reconsider its removal order and terminate the removal proceeding. With respect to reopening, Mejia noted that because the defective notice to appear did not trigger the stop-time rule, he had now accrued the ten years of continuous presence in the United States necessary to seek cancellation of removal. He asked the court to reopen the removal proceeding for that purpose, and he submitted evidence with his motion supporting his request.² Anticipating that the court might deem his dual requests for reconsideration and reopening untimely, as they were filed years after his removal was ordered, he argued that the time limits on such motions (30 days for motions to reconsider and 90 days for motions to reopen) should be equitably tolled in light of the sea change that Pereira had effected in the case law as to notices to appear. In the alternative, Mejia asked the court to exercise its authority to, at any time, sua sponte reconsider or reopen the removal proceeding. See 8 C.F.R. § 1003.23(b)(1) ; Matter of J–J– , 21 I. & N. Dec. 976, 984 (B.I.A. 1997).

Shortly after Mejia filed his motion, the Board of Immigration Appeals held in Matter of Bermudez-Cota , 27 I. & N. Dec. 441, 447 (B.I.A. 2018), that the required components of a notice to appear need not be set forth in a single document, and so long as a second notice fills in the details as to the time and place of a removal proceeding that were missing from the initial notice to appear (as was true in Mejia's case), the two documents may, taken together, satisfy the statute (and thus legitimately convene a removal proceeding).

The immigration judge denied Mejia's motion to reconsider and reopen on the basis of Bermudez-Cota . In a one-line order, the judge noted that Mejia had not addressed the BIA's decision in that case.

Mejia then filed a second motion to reconsider, this time addressing the Board's decision in Bermudez-Cota and asking the immigration judge to rethink her adverse ruling on his underlying motion to reconsider or reopen the removal proceeding.

The immigration judge denied Mejia's request, indicating that he had not meaningfully distinguished Bermudez-Cota . Mejia appealed the denial of his motion to reconsider or reopen the removal proceeding to the BIA.

The Board dismissed Mejia's appeal. The Board in the first instance noted that Mejia's (second) motion to reconsider was barred both in time (it was filed more than 30 days after he was ordered removed) and number (the statute allows only one motion to reconsider, but Mejia had filed two, the second of which addressed the immigration judge's reliance on Bermudez-Cota ). As to the merits of the motion, the Board, citing a line of this court's post- Pereira cases beginning with Ortiz-Santiago v. Barr , 924 F.3d 956, 963–64 (7th Cir. 2019), noted that the statutory requirement that a notice to appear include the date, time, place of a removal hearing is not a jurisdictional requirement but rather a claim-processing rule that must be raised in a timely manner in order to warrant dismissal of the proceeding. "[Mejia] does not claim that he made a timely objection in this case nor has he shown any prejudice from the absent information in the NTA, which was cured in a timely manner." A.R. 4. The Board also pointed out that Mejia had not yet acquired 10 years of continuous presence in the United States when the immigration judge closed the removal proceeding in 2012. Finally, the Board was not persuaded that sua sponte reopening of Mejia's case was warranted. "The accrual of additional equities while the respondent remained in the United States following the expiration of his voluntary departure period [which presumably included the fact that Mejia had now met the 10-year eligibility threshold for cancellation of removal] does not constitute an exceptional circumstance which would merit sua sponte reopening." A.R. 4.

II.

Mejia's petition for review of the Board's decision is focused on his request to reopen the removal proceeding so that he could pursue cancellation of removal. Mejia does not challenge the Board's rejection of his request for reconsideration, which was premised on the notion that the omissions in the notice to appear deprived the immigration court of jurisdiction over the removal proceeding. As the Board correctly recognized, and as our discussion below elucidates, our post- Pereira cases foreclose that line of argument. So Mejia is left to argue that the immigration judge, and in turn the Board, erred in deciding that he is not entitled to reopening of the proceeding in order to pursue cancellation of removal, now that he has met the eligibility threshold for seeking such relief. In this respect, Mejia does not challenge the Board's decision insofar as it concerned sua sponte reopening, a decision that was rendered on the merits of Mejia's request and is beyond our purview to review. See Fuller v. Whitaker , 914 F.3d 514, 519 (7th Cir. 2019). Rather, he challenges the Board's rejection of his statutory motion to reopen, which the Board did not explicitly address but which the immigration judge rejected on the strength of the Board's decision in Bermudez-Cota .

As an initial matter, we may take it as a given that Mejia is now eligible to seek cancellation of removal. He has lived in this country without interruption since he entered without inspection in 2005. Had the notice to appear issued in 2011 contained the date and time of the initial hearing along with all of the other statutorily required information, that notice...