Singh v. Garland

• Decision Date: 04 February 2022
• Docket Number: No. 20-70050,20-70050
• Citation: 24 F.4th 1315
• Parties: Varinder SINGH, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

24 F.4th 1315

Varinder SINGH, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-70050

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2021 San Francisco, California

Filed February 4, 2022

Saad Ahmad (argued), Saad Ahmad & Associates, Fremont, California, for Petitioner.

William C. Minick (argued), Attorney; Linda S. Wernery, Assistant Director; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.

Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Donald W. Molloy,^* District Judge.

OPINION

GOULD, Circuit Judge:

This appeal requires us to decide what notice must be given to noncitizens before the government can order them removed in absentia.

The Immigration & Nationality Act provides for two ways in which an in absentia removal order can be rescinded. The first is through a motion to reopen filed within 180 days after the date of the order of removal if the noncitizen can show that their failure to appear was due to "exceptional circumstances." 8 U.S.C. § 1229a(b)(5)(C)(i). The second is through a motion to reopen "filed at any time" if the noncitizen can show that they "did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title." § 1229a(b)(5)(C)(ii).

Petitioner Varinder Singh seeks rescission of his removal order, entered in absentia , under both ways to gain this relief. First, he contends that he did not receive proper notice under § 1229(a) pursuant to Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Second, he argues that "exceptional circumstances" were present in his case.¹ The Board of Immigration Appeals ("BIA") affirmed the Immigration Judge's denial of his motion to reopen and rejected both of his arguments. Because the decisions of the Immigration Judge and BIA rested on a legally erroneous interpretation of § 1229(a), we grant relief based on Singh's first argument.

BACKGROUND

Singh is a native and citizen of India who entered the United States without inspection in 2016. The Department of Homeland Security ("DHS") began removal proceedings against him and served him with a Notice to Appear. The Notice to Appear did not provide a date or time for Singh's removal hearing, instead stating that the date and time were "TBD."

DHS released Singh after he posted a bond that was paid for by a family friend. Singh then traveled to Indiana to live at one of the family friend's homes but provided the immigration court with the address of one of the friend's other residences because it was the more reliable mailing address. Unfortunately for Singh, the immigration court sent multiple hearing notices to the address, but his friend did not forward them to Singh until 2019. After Singh did not appear at his December 2018 removal hearing, an Immigration Judge ordered him removed in absentia. Once Singh learned of the hearing notices and in absentia removal order, he filed a motion to reopen and rescind the order.

Singh first argued that the in absentia order was invalid because the Notice to Appear that he received lacked time and date information. Relying on Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), Singh contended that he did not receive the statutorily required notice under § 1229(a) because the Notice to Appear that he received did not provide the date and time of his removal hearing. Second, Singh argued in the alternative that even if he received proper notice, the in absentia order should be rescinded because "exceptional circumstances" were present in his case.

The Immigration Judge denied the motion, reasoning that any defect in Singh's initial Notice to Appear due to the absence of time-and-date information was cured by the subsequent hearing notices. As to Singh's notice argument, the Immigration Judge concluded that Pereira was limited to the "narrow question" of whether a document labeled "Notice to Appear" that fails to specify the time or date of the removal proceedings nonetheless triggers the stop-time rule, which relates to a petitioner's eligibility for cancellation of removal. Further, the Immigration Judge emphasized that though the Notice to Appear did not provide the date and time of Singh's hearing, any alleged error was essentially harmless because the government subsequently sent hearing notices to Singh's address that included this information. As to Singh's "exceptional circumstances" argument, the Immigration Judge concluded that "exceptional circumstances" must be beyond a noncitizen's control, and here, a failure in the inner workings of his family friend's household did not meet that requirement.

After the Immigration Judge's decision, but before the BIA affirmed it, the BIA decided Matter of Pena-Mejia , 27 I. & N. Dec. 546 (BIA 2019), in which it limited Pereira to the stop-time rule context and held that rescission of an in absentia removal order is not required where the government provides the time and date of the hearing in a subsequent hearing notice, even if it is not provided in the initial Notice to Appear. Relying on this precedent, the BIA affirmed the Immigration Judge's denial of Singh's motion to reopen. The BIA also affirmed the Immigration Judge's conclusion rejecting the "exceptional circumstances" ground for reopening. Singh timely petitioned this court for review.

We have jurisdiction to review his petition under 8 U.S.C. § 1252(a)(1). We review the BIA's denial of Singh's motion to reopen for an abuse of discretion but review purely legal questions de novo . Bonilla v. Lynch , 840 F.3d 575, 581 (9th Cir. 2016). We grant Singh's petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen's removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). Because we hold that Singh received defective notice under § 1229(a), we do not reach the issue whether "exceptional circumstances" were present in Singh's case.

DISCUSSION

An in absentia removal order can be rescinded if a noncitizen "did not receive notice in accordance with paragraph (1) or (2) of section 1229(a)." 8 U.S.C. § 1229a(b)(5)(c)(ii). Section 1229(a), in turn, is aptly named "Notice to Appear" and delineates the requirements that apply to such notice. Id. § 1229(a). Paragraph (1) defines the "notice to appear" and requires the government to specify seven enumerated categories of information including the "time and place at which the proceedings will be held" in that Notice to Appear. Id. § 1229(a)(1).

Paragraph (2) of section 1229(a), by contrast, explains what information must be provided if the government changes the time or place of the removal proceedings. Entitled "Notice of change in time or place of proceedings," this subsection expressly states that "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 [ ] the new time or place of the proceedings" and describes the consequences of failing to appear. Id. § 1229(a)(2)(A). These notices of change in time or place of proceedings are commonly referred to as "hearing notices."

The government contends, and the BIA accepted, that although Singh received a Notice to Appear that failed to state the time or date of his removal hearing, this omission was cured by the subsequent hearing notices sent to him pursuant to paragraph (2) of § 1229(a) notifying him of changes in time or place of his proceedings. We disagree because this interpretation of § 1229a(b)(5)(C)(ii) contravenes the unambiguous statutory text and the Supreme Court's decision in Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021).

I.

Section 1229(a)'s notice requirements have generated significant controversy in recent years. In Pereira v. Sessions , the Supreme Court considered whether a Notice to Appear that does not specify the time and date of removal proceedings nevertheless triggers the "stop-time rule" ending a noncitizen's continuous presence for purposes of cancellation of removal. 138 S. Ct. at 2113. The Court determined that it "need not resort to Chevron deference" because the text of § 1229(a) is unambiguous, and a Notice to Appear that does not specify a time or place for the removal hearing "is not a ‘notice to appear under section 1229(a)’ " and as a result does not trigger the stop-time rule. Id. at 2113, 2114.

After Pereira , the government "could have responded ... by issuing notices to appear with all the information § 1229(a)(1) requires," but instead it relied on a two-step practice—familiar to Singh—whereby it would serve a Notice to Appear with the time and date of the removal hearing "to be determined" and then subsequently send hearing notices with this information. Niz-Chavez , 141 S. Ct at 1479. The Court rejected this two-step practice in Niz-Chavez , interpreting § 1229(a) to require a "single statutorily compliant document" to trigger the stop-time rule and concluding that a subsequent hearing notice could not cure a defective Notice to Appear. Id. at 1481.

Nevertheless, the government in this case asks us to approve the same two-step notice process for in absentia removal orders that the Supreme Court rejected in the stop-time-rule context in Niz-Chavez. Even if the BIA's interpretation of the notice required for in absentia removal orders was reasonable in 2019 after Pereira , it does not survive Niz-Chavez.

In Matter of Pena-Mejia , the BIA cabined the reach of Pereira , holding that the Supreme Court's interpretation of § 1229(a) notice in Pereira was limited to the specific language in the stop-time rule. 27 I. & N. Dec. at 547. But in Niz-Chavez , the Supreme Court conducted a statutory analysis of § 1229(a) separate from its analysis of...