Matter of Pena-Mejia: Rescission of In Absentia Order/Termination Unnecessary Where Alien Fails to Appear After Receiving NOH

 

Introduction: Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019)

On May 22, 2019, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019) [PDF version]. The Board held that it is not necessary to rescind an in absentia order of removal or to terminate removal proceedings when an alien failed to appear at a schedule hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as the alien had been provided with a subsequent notice of hearing specifying the time and date of the initial removal hearing.

The decision in Matter of Pena-Mejia distinguishes the Supreme Court's decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018) [PDF version], wherein the Court held that a putative notice to appear lacking the time and place of the initial removal hearing is not a “notice to appear” under the Immigration and Nationality Act (INA) for purposes of the “stop-time rule.” Matter of Pena-Mejia was issued on the same day as Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019) [PDF version], wherein the Board held that rescission of an in absentia order of removal or the termination of proceedings is unnecessary when the alien was served with a defective notice to appear and failed to provide an address where the subsequent notice of hearing could be sent.

In this article, we will examine in detail the Board's decision in Matter of Pena-Mejia. Please make sure to see our article on its companion decision in Matter of Miranda-Cordiero [see article]. To fully understand the context behind the decisions, please see our articles on the Supreme Court decision in Pereira v. Sessions [see article] and our article index on Board decisions following Pereira and related issues [see index]. We discuss issues relating to removal hearings generally in our website's growing section on removal and deportation defense [see category].

Factual and Procedural History: 27 I&N Dec. 546, 546-47

The respondent, a native and citizen of Honduras, entered i the United States in August 2002 without having been admitted or paroled. She was personally served with a Form I-862, Notice to Appear, at the time of her entry. The Notice ordered her to appear before an Immigration Judge in Harlingen, Texas, at a date and time to be set. Less than one month later, the Harlingen Immigration Court sent a notice of hearing to the address that the respondent had provided, instructing her that her initial hearing was scheduled for October 31, 2002. The respondent failed to appear at that hearing and the Immigration Judge ordered her removed in absentia.

On February 20, 2018, the respondent filed a motion to reopen the removal proceedings with the Immigration Judge. In her motion, she argued that she had not received the notice of hearing in September 2002. The Immigration Judge found that the notice of hearing had been sent to the respondent by regular mail at the address she provided, fully in accord with the requirements set forth in section 239(a) of the Immigration and Nationality Act (INA). The Immigration Judge concluded that the respondent failed to rebut the presumption of delivery of the notice of hearing in accord with the factors described in the Board's published decision in Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008) [PDF version]. For these reasons, the Immigration Judge denied the respondent's motion to reopen proceedings and rescind the in absentia removal order. The respondent appealed from the denial to the BIA.

Issues Raised on Appeal: 27 I&N Dec. 546, 547

Before the Board, the respondent argued that because the initial notice to appear did not specify the date and time of her removal hearing, it was not a valid notice to appear under the Supreme Court decision in Pereira. For that reason, she argued that jurisdiction over her case never vested in the Immigration Court. As a consequence, the respondent argued that the proper course of action would be for the Board to terminate her removal proceedings.

Board's Analysis and Conclusions: 27 I&N Dec. 546, 547

The Board began by explaining that the issue before the Supreme Court in Pereira was whether a deficient notice to appear triggered the “stop-time” rule under section 240A(d)(1)(A) of the INA. While the Court held that a notice to appear must include both the time and place of the initial removal hearing in order to stop the alien's accrual of continuous physical presence for purposes of eligibility for cancellation of removal, it explicitly did not reach the question of whether a deficient notice suffices for other purposes, such as initiating removal proceedings.

In 2018, the Board addressed whether and when a deficient notice to appear vests jurisdiction over removal proceedings in an Immigration Judge in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) [PDF version]. We discuss Matter of Bermudez-Cota in detail in a separate article [see article]. In Matter of Bermudez-Cota, the Board held that a “two-step process,” wherein an alien is first served with a deficient notice to appear and subsequently sent a notice of hearing including the omitted information about the time and place of the initial removal hearing, is sufficient for meeting the statutory notice requirements in section 239(a) of the INA, thereby vesting jurisdiction over the removal proceeding in the Immigration Judge. In so ruling, the Board distinguished the issues involved in when authority over proceedings vests in the Immigration Judge from the specific stop-time rule issue considered by the Supreme Court in Pereira.

The regulatory provision found in 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.” 8 C.F.R. 1003.15(c) provides that the notice to appear must include specific information, but does not specify that the notice must include the date and time of the hearing. That provision instead provides that the failure of the notice to include any of the specified items “shall not be construed as affording the alien any substantive or procedural rights.” Thus, in accord with the regulations and with its existing the precedent in Matter of Bermudez-Cota, the Board held that “the notice to appear served on the respondent [in the instant case] and filed with the Immigration Court satisfied the regulatory definition of a 'notice to appear' and vested jurisdiction in the Immigration Court.” The Board concluded that the Supreme Court's decision in Pereira did not alter the disposition of the instant matter.

The Board also concluded that Pereira did not necessitate the rescission of the respondent's in absentia removal order. While Pereira was concerned with the stop-time rule, separate provisions of the INA govern in absentia removal orders. Section 240(b)(5)(A) of the INA provides that “'[a]ny alien who, after written notice required under paragraph (1) or (2) of section 239(a) [of the INA] has been provided to the alien or the alien's counsel of record, does not attend a proceeding under this section' may be ordered removed in absentia” (emphasis added by the Board). The Board found significant the statute's use of the disjunctive — “or.” The Board read this as meaning that “an in absentia order of removal may be entered if a written notice containing the time and place of the hearing was provided either in a notice to appear under section 239(a)(1) or in a subsequent notice of the time and place of the hearing pursuant to section 239(a)(2).”

The Board explained that in the instant case, the notice to appear which was personally served on the respondent “advised her that she 'must notify the Immigration Court immediately' if she changed her address during proceedings.” The respondent provided no notification to the Immigration Court that she had changed her address between being served with the notice and the subsequent mailing of the notice of hearing . The notice of hearing was thus sent to the only address that the respondent had provided, and the notice was, notably, not returned as undeliverable. The respondent did not deny that the notice of hearing was properly sent.

Based on the facts, the Board held that the instant “case falls within Matter of Bermudez-Cota as to the fundamental question of the Immigration Court's jurisdiction.” It was “distinguishable from Pereira because [the respondent] did not apply for cancellation of removal and was ordered removed by the Immigration Judge for reasons unrelated to the operation of the 'stop-time' rule.” The Board thus concluded that Pereira did not require that the respondent's in absentia removal order be rescinded or that the removal proceedings be terminated.

The Board noted that its conclusions are supported by several Federal appellate court decisions entered subsequent to Pereira. The United States Court of Appeals for the Fifth Circuit, in whose jurisdiction [see article] the instant case arose, held in Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 (5th Cir. 2018) [PDF version], that reopening or terminating proceedings was unnecessary where the alien did not receive a notice of hearing due to his failure to provide a correct address to the Immigration Court. The Fifth Circuit found the issue distinguishable from that in Pereira, which specifically involved the stop-time rule. Id. at 148 & n.1. The United States Court of Appeals for the Sixth Circuit held in Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019), that Pereira, dealing with only the narrow issue of when the stop-time rule is triggered by issuance of a “notice to appear,” did not bear on when a notice is sufficient for vesting jurisdiction in an Immigration Court.

Ultimately, the Board concluded that the respondent's arguments in the instant case “are … analogous to those presented in Matter of Bermudez-Cota and fail for a similar reason-specific provisions of the [INA] that are distinct from the 'stop-time' rule are at issue here and are dispositive to this case.” For the reasons discussed above, the Board denied the respondent's motion for reopening and declined to rescind the respondent's in absentia removal order.

Footnote on Specific Address Issue: 27 I&N Dec. 546, 548-49 n.1

In Pereira, the alien established that he had provided the correct address to DHS and had nevertheless not received a notice of hearing. For that reason, the Immigration Judge granted his motion to reopen.

In the instant case, the respondent failed to establish that she did not receive the notice. To support her claim, she submitted her own statement and statements from family members claiming that the address she had provided to immigration officials was her sister's address and that she had lived there “for a few months” before moving. She claimed that neither she nor her sister received the notice of hearing from the Immigration Court. The Board had declined to consider newly submitted evidence in an initial July 18 unpublished decision in the matter, but found that even if it were considered, the evidence was not sufficiently material to warrant remand.

The Board held that to the extent the respondent moved and failed to fulfill her obligation under section 239(a)(1)(F) to notify the Immigration Court of her change in address, the in absentia removal proceedings were appropriate under section 240(b)(5)(A) of the INA. This is because section 240(b)(5)(A) “provides that no written notice of hearing is required under those circumstances.” Rather, section 240(b)(5)(A) only “refers to written notice required under section 239(a)(1) or (2).”

Conclusion

The Board's decision in Matter of Pena-Mejia follows its other post-Pereira precedents, most notably Matter of Bermudez-Cota. The decision makes clear that if an in absentia removal order is issued after an alien is served with a deficient notice to appear and is then properly sent a notice of hearing including the information that was omitted from the notice to appear, neither rescission of the in absentia removal order nor termination of the removal proceedings is required. The Board, and several circuit courts have interpreted Pereira as governing only the specific issue of when the stop-time rule adheres, not when jurisdiction vests in the Immigration Court.

An alien who is facing removal proceedings should always consult with an experienced immigration attorney for case-specific guidance. This case highlights that the failure to notify the Immigration Court of a change in address and the failure to appear may lead to an alien being ordered removed in absentia without having had the opportunity to contest the underlying charges or pursue any avenues for relief from removal.