Ortiz-Santiago v. Barr

• Decision Date: 20 May 2019
• Docket Number: No. 18-3251,18-3251
• Citation: 924 F.3d 956
• Parties: Mario ORTIZ-SANTIAGO, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

924 F.3d 956

Mario ORTIZ-SANTIAGO, Petitioner,

v.William P. BARR, Attorney General of the United States, Respondent.

No. 18-3251

United States Court of Appeals, Seventh Circuit.

Argued April 8, 2019

Decided May 20, 2019

Rehearing Denied July 18, 2019

Jacob S. Briskman, Adam R. Whitesel Cassingham, Attorneys, JACOB S. BRISKMAN ATTORNEY AT LAW PC, Chicago, IL, for Petitioner.

Oil OIL, Attorney, Siu P. Wong, Trial Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Wood, Chief Judge, and Scudder and St. Eve, Circuit Judges.

Wood, Chief Judge.

Jurisdiction, the Supreme Court has reminded us, "is a word of many, too many meanings." Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting United States v. Vanness , 85 F.3d 661, 663 n.2 (D.C. Cir. 1996) ). Petitioner Mario Ortiz-Santiago, who is seeking to avoid removal from this country, now asks us to wade into those murky waters. He contends that because the Notice to Appear ("Notice") sent to him by the Department of Homeland Security ("DHS") did not have the statutorily required time-and-date information for his removal hearing, subject-matter jurisdiction never vested in the Immigration Court. This flaw, he reasons, rendered the Notice so defective that it did not suffice to trigger the Immigration Court’s jurisdiction over his case. Because he never was properly placed in removal proceedings, he concludes, the order of removal that the Immigration Judge entered and the Board of Immigration Appeals affirmed must be vacated.

Ortiz-Santiago is correct that the Notice was procedurally defective, but he overstates the problem. The requirement that a Notice include, within its four corners, the time, date, and place of the removal proceeding is not "jurisdictional" in nature. It is instead the agency’s version of a claim-processing rule, violations of which can be forfeited if an objection is not raised in a timely manner. We thus hold, as have the Second, Sixth, and Ninth Circuits, that an Immigration Court’s jurisdiction is secure despite the omission in a Notice of time-and-place information. See Banegas Gomez v. Barr , 922 F.3d 101, 109–112 (2d Cir. 2019) ; Santos-Santos v. Barr , 917 F.3d 486 (6th Cir. 2019) ; Karingithi v. Whitaker , 913 F.3d 1158 (9th Cir. 2019) ; Hernandez-Perez v. Whitaker , 911 F.3d 305 (6th Cir. 2018). Although we take a different path from those circuits to reach this conclusion, we agree that nothing in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), requires a different result. See also Villa Serrano v. Barr , No. 18-2886, 924 F.3d 370, 374–75, 2019 WL 2052354, at *4 (7th Cir. May 9, 2019) (noting but not deciding this issue). We therefore deny Ortiz-Santiago’s petition for review.

I

Ortiz-Santiago is a Mexican citizen who has continuously resided in the United States without legal status since 1999. He is now about 50 years old. In October 2015, he was arrested for driving without a license. Shortly thereafter Immigration and Customs Enforcement served him with a document entitled "Notice to Appear" for removal proceedings. See 8 U.S.C. § 1229(a). This Notice asserted that he is a removable noncitizen because he entered the United States without being admitted or paroled. The Notice did not, however, include either a time or date for Ortiz-Santiago’s hearing before the Immigration Judge. This omission violated the Immigration and Nationality Act. See 8 U.S.C. § 1229(a)(1)(G)(i) (requiring a Notice to include "[t]he time and place at which the proceedings will be held"). Cf. 8 C.F.R. § 1003.15(b), (c) (specifying the contents of a Notice with no mention of time and date). The Notice Ortiz-Santiago received said only that he should appear at the Office of the Immigration Judge in Chicago at a date and time "to be set." Shortly thereafter, the Immigration Court sent Ortiz-Santiago a "Notice of Hearing," setting his hearing for November 12, 2015 at 10:30 a.m. More than a decade ago, we expressly approved this two-step procedure. See Dababneh v. Gonzales , 471 F.3d 806, 809–10 (7th Cir. 2006).

During proceedings before the Immigration Judge on August 24, 2016, Ortiz-Santiago conceded that he was subject to removal. He nevertheless sought cancellation of removal based on his having spent more than ten continuous years in the United States, his good moral character, and the purported hardship that his removal would cause to his stepfather, who is a legal permanent resident. See 8 U.S.C. § 1229b(b). After a hearing, the Immigration Judge denied cancellation, finding that Ortiz-Santiago had failed to show the requisite hardship to his stepfather or his own good moral character.

Ortiz-Santiago appealed that decision to the Board of Immigration Appeals ("the Board"). While his appeal was pending, the Supreme Court decided Pereira , which held that a Notice that lacked the statutorily-required time-and-date information did not trigger the stop-time rule. 138 S. Ct. at 2118. (That rule dictates the end-point of the non-citizen’s qualifying residence in the United States for certain immigration benefits.) The Court stated, without qualification, that "[a] document that fails to include such information is not a ‘notice to appear under section 1229(a) ’ and thus does not trigger the stop-time rule." Id. Approximately two months after that decision, but before the Board issued its decision in this case, Ortiz-Santiago filed a motion to remand with the Board. He took the Court at its word: no time-and-date information, he believed, was the same as no Notice at all. See 8 C.F.R. § 1003.14 (stating that "jurisdiction vests ... when a charging document [including a Notice to Appear] is filed with the Immigration Court"). In his view, all he received was a useless piece of paper that did not suffice to initiate anything. The Board denied Ortiz-Santiago’s motion to remand and, on de novo review, it affirmed the Immigration Judge’s finding that he failed to show that his stepfather would suffer sufficient hardship to warrant cancellation. This timely petition for review, in which Ortiz-Santiago emphasizes his "jurisdictional" argument, followed.

II

A

As with all questions of statutory interpretation, we start with the statute’s text. In relevant part, 8 U.S.C. § 1229(a)(1)(G)(i) states that:

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 (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying the following: ... The time and place at which the proceedings will be held.

Neither that provision, nor any other within the Immigration and Nationality Act, says anything about when the Immigration Court is formally authorized to proceed with the case. The agency thus issued implementing regulations, which do the following: 8 C.F.R. § 1003.14 states that "jurisdiction vests" when a charging document is filed with the Immigration Court; 8 C.F.R. § 1003.13 defines a charging document as one of several forms, among which is a Notice; and 8 C.F.R. § 1239.1 specifies that a Notice is the only way to begin a removal proceeding.

But saying that "jurisdiction" vests with the Immigration Court upon the filing of a Notice to Appear is unhelpful without defining what that Notice must include in order to have that effect. Both the statute and the regulations attempt to address this question. As described above, 8 U.S.C. § 1229(a) describes a Notice as "written notice ... given ... to the alien ... specifying" various things including the government’s allegations, the noncitizen’s rights and responsibilities, and the "time and place at which the proceedings will be held." The relevant regulations, 8 C.F.R. §§ 1003.15 and 1003.18, provide that a Notice must contain similar information. Importantly, however, neither regulation repeats the requirement that a Notice contain the "time and place" of the removal proceedings. Instead, 8 C.F.R. § 1003.18(b) says only that the "time, place and date" of the initial hearing be provided "where practicable." At least in the last few years, DHS apparently never found it "practicable" to send Notices that contained time and date information. See Pereira , 138 S. Ct. at 2111 (noting that "almost 100 percent" of Notices from the previous three years omitted time and date information). Instead, DHS sent Notices with no date or time for the initial hearing and used a place-filler indicating that this information was "to be set." At some point after the Notice was sent—sometimes the same day, sometimes months later—the Immigration Court would send the noncitizen a "Notice of Hearing" detailing when and where she was required to appear.

Until recently, few if any courts were troubled by this inconsistency between the statutory and regulatory text. We certainly were not. To the contrary, we upheld this notification procedure against multiple attacks in the years between 1997 (the year that both the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and this implementing regulation became effective) and now. In Dababneh , we held that "the fact that the government fulfilled its requirements under INA § 239(a) in two documents did not strip the [Immigration Judge] of jurisdiction." 471 F.3d at 810. We also held that the two-document procedure was sufficient to trigger the stop-time rule that governs the end of the non-citizen’s "period of continuous physical presence." Id. , citing 8 U.S.C. § 1229b(d)(1) (the stop-time rule). And in Yi Di Wang v. Holder , 759 F.3d 670 (7th Cir. 2014), we held that the Board permissibly interpreted section 1229b(d)(1) to allow the stop-time rule to be triggered by a Notice without time-and-place information, without regard to whether a separate Notice of Hearing was later...