Orozco-Velasquez v. Attorney Gen. U.S.

• Decision Date: 11 March 2016
• Docket Number: No. 13–1685.,13–1685.
• Citation: 817 F.3d 78
• Parties: Milton Lizardo OROZCO–VELASQUEZ, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

817 F.3d 78

Milton Lizardo OROZCO–VELASQUEZ, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent.

No. 13–1685.

United States Court of Appeals, Third Circuit.

Argued March 4, 2015.

Opinion Filed: March 11, 2016.

Amanda Johnson, (Argued), Ryan M. Moore, Esq., Stuart T. Steinberg, Esq., Dechert, Philadelphia, PA, for Amicus Petitioner.

Robert D. Tennyson, Jr., Esq., (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, Nancy E. Friedman, Esq., Brooke M. Maurer, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Ben Franklin Station, Washington, DC, for Respondent.

Before: McKEE, Chief Judge, AMBRO and ROTH, Circuit Judges.

OPINION

ROTH, Circuit Judge:

In this petition for review of a decision by the Board of Immigration Appeals (BIA), we must determine the specificity required in a "notice to appear" (NTA), summoning an alien to appear before an Immigration Judge (IJ) for removal proceedings. By statute, an NTA must specify "[t]he time and place at which the proceedings will be held."¹ The issue before us is whether a notice that lacks such specificity is effective. The BIA has held that service of an NTA, which did not contain these statutory requirements, discontinued an alien's residency period for purposes of the Immigration and Nationality Act's (INA) "stop-time" rule.² Milton Orozco–Velasquez contends that BIA's construction of the statute is not entitled to deference and that we should grant the petition for review.

I.

An alien must reside in the United States "for a continuous period of not less than 10 years" to be eligible for cancellation of removal.³ Orozco–Velasquez, a Guatemalan native and citizen, arrived in the United States in September 1998 or February 1999⁴ without being admitted or paroled.^{5 ,6} On May 9, 2008, Orozco–Velasquez was served with a NTA, ordering him to appear before an IJ in Elizabeth, New Jersey, and noting that the date and time of removal proceedings were "to be set." Almost two years later, on April 7, 2010, he received by mail an otherwise identical NTA, ordering him to appear before an IJ in Newark, New Jersey. The government has acknowledged that the second NTA was sent in order to correct the address of the Immigration Court before which Orozco–Velasquez was summoned to appear. On April 12, 2010, he was served with a Notice of Hearing, announcing the date and time of the removal proceedings.

On May 14, 2010, Orozco–Velasquez filed an application for cancellation of removal on the ground that his removal would result in "exceptional and extremely unusual hardship" to his mother, a legal permanent resident of the United States. Thereafter, he moved to terminate removal proceedings, arguing that the April 2010 NTA effectively superseded the May 2008 NTA and as a result he did not receive proper notice of the proceedings until after he had resided in the United States for a continuous ten-year period.⁷ In an August 19, 2011, oral decision, the IJ denied Orozco–Velasquez's motion to terminate and ordered him removed. The IJ did not evaluate Orozco–Velasquez's cancellation of removal application on the merits, since he "tend[ed] to agree with" the government's characterization of the April 2010 NTA as non-superseding. Thus, the IJ found that notice was effective upon service of the April 2010 NTA, precluding Orozco–Velasquez's application for cancellation of removal under the INA's "stop-time" rule, The BIA dismissed the ensuing appeal. Relying on its own precedent, In re Camarillo,⁸ the BIA held that the initial NTA, containing an inaccurate Immigration Court address and omitting the date and time of Orozco–Velasquez's removal proceedings, was not defective and thus provided adequate notice. The BIA acknowledged that the Camarillo defect—omission of the proceedings' date and time—was "different" than giving the wrong address for the court. Nonetheless, the BIA applied its holding in Camarillo to bar Orozco–Velasquez's application for cancellation of removal. The BIA also cited a Department of Justice regulation providing for amendment of an NTA to "add[ ] or substitute[ ] charges of inadmissibility and/or deportability and/or factual allegations"⁹ in support of its determination that "a Notice to Appear is not defective simply because the document does not include the specific date, time, or place of hearing."

Orozco–Velasquez pro se filed a petition for review in this Court. We appointed pro bono amicus curiae counsel¹⁰ and directed amicus curiae and the parties to address in supplemental briefs whether (1) Camarillo is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,¹¹ and (2) the BIA erred in applying Camarillo to bar Orozco–Velasquez's application for cancellation of removal. We also requested that the parties discuss a recent Second Circuit decision, Guamanrrigra v. Holder,¹² holding that, where an initial NTA contains errors and/or omissions that are subsequently corrected, the "stop-time" rule is triggered only upon perfection of notice.

II.

The BIA had jurisdiction under 8 U.S.C. § 1103(g)(2). The government maintains that 8 U.S.C. § 1252(g)¹³ deprives us of jurisdiction to consider Orozco–Velasquez's present appeal. The government relies exclusively on our interpretation of that provision in Calix v. Attorney General.¹⁴ That reliance is misplaced. Setting aside its nonprecedential status,¹⁵ Calix does not stand for the proposition that the government advances, namely, that an IJ's denial of a petitioner's motion to terminate proceedings necessarily implicates a discretionary enforcement decision by the Attorney General and is therefore unreviewable.

The motion to terminate in Calix was premised on the Department of Homeland Security's purported failure to follow its own internal procedures in commencing the removal proceedings in the first place. Thus, the motion to terminate served as a not-so-thinly veiled challenge to the Attorney General's decision to commence proceedings—a plainly discretionary exercise of agency authority.¹⁶ To the extent that § 1252(g)'s jurisdictional bar is aimed at "the Attorney General's decision to commence removal proceedings,"¹⁷ it is inapplicable here. Orozco–Velasquez's contention is not that the proceedings were improperly commenced but that he did not receive proper notice to appear at removal proceedings until after the running of the stop-time rule and thus he should be eligible to apply for cancellation of removal. For that reason, the provisions of § 1252(g) do not apply to the present situation. We have jurisdiction under 8 U.S.C. § 1252 to review the BIA's final order dismissing Orozco–Velasquez's appeal.

III.

Where an issue of law implicates the BIA's expertise, we review its legal determinations de novo, subject to the Chevron principles of agency deference.¹⁸ "Under Chevron, the statute's plain meaning controls, whatever the Board might have to say. But if the law does not speak clearly to the question at issue, a court must defer to the Board's reasonable interpretation, rather than substitute its own reading."¹⁹

The BIA determined that failure to "include the specific date, time, or place of hearing" in a NTA has no bearing on a notice recipient's removability.²⁰ Because that conclusion conflicts with the INA's plain text, it is not entitled to Chevron deference.

In pertinent part, 8 U.S.C. § 1229(a) provides as follows:

(1) In general

In removal proceedings under section 1229a of this title, written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the alien ... specifying the following:

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are conducted.

(C) The acts or conduct alleged to be in violation of law.

(D) The charges against the alien and the statutory provisions alleged to have been violated.

* * *

(G)(i) The time and place at which the proceedings will be held.

* * *

(2) Notice of change in time or place of proceedings

(A) In general

In 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 in person to the alien ... specifying—

(i) the new time or place of the proceedings, and

(ii) the consequences under section 1229a(b)(5) of this title of failing, except under exceptional circumstances, to attend such proceedings.

The INA's "stop-time" provision, which governs an alien's accrual of continuous residency (ten years of which must be attained to apply for cancellation of removal),²¹ specifically incorporates the aforementioned notice requirements: "[A]ny period of continuous residence or continuous physical presence in the United States shall be deemed to end ... when the alien is served a notice to appear under section 1229(a) of this title...."²² Thus, an alien's period of continuous residence is interrupted, that is, time stops, only when the government serves a NTA in conformance with 8 U.S.C. § 1229(a).

We disagree with those of our sister circuit courts of appeals that have found ambiguity in § 1229b(d)(1)'s "stop-time" definition.²³ To be sure, the "stop-time" statute "encompasses more than just [§ 1229(a)(1) ] dealing with the NTA."²⁴ Of particular import, the "stop-time" rule also incorporates § 1229(a)(2), which permits a "change or postponement in the time and place of such proceedings" if the alien is provided written notice of the change.²⁵ But the statute's incorporation of these additional provisions does nothing to diminish the clear-cut command set out in § 1229(a)(1) that notice "shall be given in person to the alien ... specifying," inter alia, "[t]he time and place at which the proceedings will be held."²⁶

"The word ‘shall’ is ordinarily the language of command."²⁷ Black's Law Dictionary defines "shall" as "a duty to; more broadly, is required to." Black's...