Nkomo v. Attorney Gen. of the United States

• Decision Date: 12 July 2019
• Docket Number: No. 18-3109,18-3109
• Citation: 930 F.3d 129
• Parties: Emerald Zodwa NKOMO, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

930 F.3d 129

Emerald Zodwa NKOMO, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America, Respondent

No. 18-3109

United States Court of Appeals, Third Circuit.

Submitted April 1, 2019

Filed: July 12, 2019

Jerard A. Gonzalez, Cheryl Lin, Bastarrika Soto Gonzalez & Somohano, 3 Garret Mountain Plaza, Suite 302, Woodland Park, NJ 07424, Counsel for petitioner

Rachel L. Browning, Jessica E. Burns, Rosanne M. Perry, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for respondent

Before: CHAGARES, HARDIMAN, and SILER, JR.^* Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Emerald Nkomo petitions for review of her final order of removal. Her petition requires us to decide a question of first impression in this Court: whether a notice to appear that fails to specify the time and place of an initial removal hearing deprives an immigration judge of jurisdiction over the removal proceedings. We hold that it does not.

Nkomo also seeks review of the denials of her application for withholding of removal and her request for protection under the Convention Against Torture (CAT). We are unpersuaded by the merits of her withholding claim and we lack jurisdiction over her CAT claim. So we will deny Nkomo’s petition in part and dismiss it in part.

I

A lawful permanent resident of the United States and a citizen of Zimbabwe, Nkomo was convicted in 2017 of conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1342 and 1349. This conviction is for an "aggravated felony," which makes Nkomo removable and ineligible for most relief. About a month after she was sentenced to time served for that offense, the Government initiated these removal proceedings.

Adopting much of the Immigration Judge’s analysis, the Board of Immigration Appeals found Nkomo ineligible for withholding because her wire fraud conviction was for a "particularly serious crime" under 8 U.S.C. § 1231(b)(3)(B)(ii). Although that finding did not foreclose CAT protection, the Board denied that too, adopting the IJ’s finding that Nkomo had not shown a probability she would be tortured by or with the acquiescence of the government of Zimbabwe. Nkomo filed this timely petition for review. See 8 U.S.C. § 1252(b)(1).

II

The Board had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1003.2(c). We have jurisdiction under 8 U.S.C. § 1252(a). Because Nkomo is a criminal alien, our review is limited to colorable legal and constitutional claims. 8 U.S.C. § 1252(a)(2)(C)–(D). We review the Board’s decision, but where "the BIA adopt[s] and affirm[s] the IJ’s decisions and orders as well as [conducting] an independent analysis, we review both the IJ’s and the BIA’s decisions and orders." S.E.R.L. v. Att’y Gen. , 894 F.3d 535, 543 (3d Cir. 2018) (quoting Ordonez-Tevalan v. Att’y Gen ., 837 F.3d 331, 340–41 (3d Cir. 2016) ). "[W]e look to the IJ’s opinion ‘only where the BIA has substantially relied on that opinion.’ " Id. (quoting Camara v. Att’y Gen. , 580 F.3d 196, 201 (3d Cir. 2009), as amended (Nov. 4, 2009)).

III

We begin with Nkomo’s jurisdictional challenge to the immigration proceedings. While her appeal was pending before the BIA, Nkomo filed a motion to remand to the IJ, claiming that her proceedings should be terminated in light of the Supreme Court’s decision in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Nkomo Br. 21–23, 25. The BIA denied Nkomo’s motion to remand, citing its decision in Matter of Bermudez-Cota , 27 I. & N. Dec. 441 (BIA 2018). Nkomo claims the Board erred in this regard. Because her jurisdictional challenge is a purely legal one, our review is plenary. Chiao Fang Ku v. Att’y Gen. , 912 F.3d 133, 138 (3d Cir. 2019).

At issue in Pereira was cancellation of removal, a form of discretionary relief available under 8 U.S.C. § 1229b(b)(1). To be eligible for cancellation of removal, an alien must accrue 10 years of continuous physical presence in the United States "immediately preceding the date" of the application for cancellation. Id. § 1229b(b)(1)(A). That continuous physical presence ceases to accrue, however, "when the alien is served a notice to appear under section 1229(a)." Id. § 1229b(d)(1)(A). This is known as the "stop-time rule." Pereira , 138 S. Ct. at 2109. Pereira was denied cancellation of removal by the agency because he was served with a notice to appear before he had accrued the requisite 10 years. Applying deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Court of Appeals for the First Circuit denied Pereira’s petition for review. Pereira v. Sessions , 866 F.3d 1, 2 (1st Cir. 2017).

The Supreme Court reversed. Eschewing Chevron deference in favor of the text of the statute, the Court held that the notice to appear served on Pereira did not trigger the stop-time rule because § 1229(a) requires that the notice to appear specify, inter alia , "[t]he time and place at which the [removal] proceedings will be held." Pereira , 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229(a)(1)(G)(i) ). The Court reasoned: "By expressly referencing § 1229(a), the statute specifies where to look to find out what ‘notice to appear’ means." Id. at 2114. And looking to § 1229(a), one finds a requirement that time and place be specified. The Court explained that "[i]f the three words ‘notice to appear’ mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens ‘notice’ of the information, i.e. , the ‘time’ and ‘place,’ that would enable them ‘to appear’ at the removal hearing." Id. at 2115. Because the notice to appear served on Pereira failed to include that information, he was not ineligible for cancellation of removal.

In this case, Nkomo appeared at, and participated in, her removal hearing. She nevertheless argues that the IJ, the BIA, and this Court all lack jurisdiction because her notice to appear was deficient under Pereira . Her argument boils down to the following logical sequence: (1) Pereira defined "notice to appear" for all purposes; (2) 8 C.F.R. § 1003.14(a) provides that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court"; (3) 8 C.F.R. § 1003.13 defines "charging document" as "the written instrument which initiates a proceeding before an Immigration Judge .... includ[ing] a Notice to Appear"; (4) because a notice to appear lacking time and place information is not actually a notice to appear under Pereira , it’s not a charging document; so (5) jurisdiction never vested when that document was filed.

The argument Nkomo makes here has been made to seven of our sister courts in the past two years and it has been rejected each time. See Ortiz-Santiago v. Barr , 924 F.3d 956, 957–58, 962–64 (7th Cir. 2019) ; Ali v. Barr , 924 F.3d 983, 986 (8th Cir. 2019) ; Banegas Gomez v. Barr , 922 F.3d 101, 110–12 (2d Cir. 2019) ; Soriano-Mendosa v. Barr , 768 F. App'x 796, 801–02 (10th Cir. 2019) (non-precedential); Santos-Santos v. Barr , 917 F.3d 486, 489–90 (6th Cir. 2019) ; Karingithi v. Whitaker , 913 F.3d 1158, 1160–61 (9th Cir. 2019) ; Hernandez-Perez v. Whitaker , 911 F.3d 305, 314–15 (6th Cir. 2018) ; Leonard v. Whitaker , 746 F. App'x 269, 269–70 (4th Cir. 2018) (non-precedential per curiam); United States v. Perez-Arellano , 756 F. App'x 291, 294 (4th Cir. 2018) (non-precedential per curiam). And, as we noted already, the BIA rejected the argument in Matter of Bermudez-Cota , 27 I. & N. Dec. 441 (BIA 2018). Today we join our sister courts and the BIA for three reasons.

First , unlike the stop-time rule, which is explicitly tied to the list of elements in § 1229(a), see Pereira , 138 S. Ct. at 2114, the jurisdiction-vesting regulation upon which Nkomo relies does not cross-reference that section. See Karingithi , 913 F.3d at 1161 (" Pereira treats this statutory cross-reference as crucial .... There is no ‘glue’ to bind § 1229(a) and the jurisdictional regulations: the regulations do not reference § 1229(a), which itself makes no mention of the IJ’s jurisdiction."). A critical piece of Pereira ’s reasoning is thus inapplicable here. And not only is the word "jurisdiction" nowhere to be found in § 1229(a), but it also would be an odd place to find a jurisdictional limitation. Congress would have placed § 1229(a)(1) ’s requirements in § 1229a—the section establishing the IJ’s authority—if it meant them to limit the IJ’s subject matter jurisdiction.

Second , Pereira did not purport to resolve issues beyond the § 1229b(d)(1)(A) stop-time rule context, and the Supreme Court repeatedly emphasized the narrowness of its holding, Pereira , 138 S. Ct. at 2110, 2113 ; see id. at 2121 (Alito, J., dissenting). That limitation makes sense, and we should hesitate to extend Pereira ’s reach, because the cancellation of removal context at issue in Pereira and the reopening/remand context at issue in Nkomo’s case are quite different. Filing a notice to appear commences removal proceedings—and serving it stops the accrual of time for an alien’s "ten years of continuous presence" if it complies with § 1229(a). By contrast, reopening and remand are available only when proceedings before the IJ have been completed. See Mauricio-Benitez v. Sessions , 908 F.3d 144, 148 n.1 (5th Cir. 2018). So while Pereira ’s holding expands the class of those eligible for discretionary relief in removal proceedings, Nkomo’s argument would invalidate scores of removal orders (and, presumably, grants of relief). And it would do so without even requiring the alien to allege she lacked sufficient notice of her hearing, see Hernandez-Perez , 911 F.3d at 314. We doubt the Supreme Court made so dramatic a change sub silentio .

Third , the majority and dissent in Pereira debated whether a notice to appear under § 1229(a) might be understood as a charging document...