Introduction: Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019)

On May 1, 2019, the Board of Immigration Appeals (BIA) published an en banc precedential decision in the Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) [PDF version].

The Supreme Court held in Pereira v. Sessions, 138 S.Ct. 2105 (2018) [PDF version] [see article], that service of a notice to appear deficient under section 239(a) of the Immigration and Nationality Act (INA) for lacking the time and place of the alien’s removal hearing does not trigger the “stop-time rule” for cancellation of removal under section 240A(d)(1)(A) of the INA. In Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) [PDF version] [see article], the Board held that a deficient notice to appear described above nevertheless vests an immigration judge with jurisdiction over removal proceedings so long as a notice of hearing specifying the time and place of the alien’s initial removal hearing is later sent to the alien.

With that backdrop, the Board decided Matter of Mendoza-Hernandez and Capula-Cortes. The Board held that a deficient notice to appear lacking the time and place of the alien’s initial removal hearing is perfected when the subsequent notice of hearing is sent to the alien specifying the missing information. The Board held that this perfection of the deficient notice to appear triggers the stop-time rule as of the second notice under section 240A(d)(1)(A) of the INA. The Board’s holding distinguished Pereira and followed Bermudez-Cota while extending its holding to the stop-time rule issue.

Matter of Mendoza-Hernandez was a relatively rare en banc decision before the full BIA. The vote was 9-6. The decision, authored by Board Member Anne J. Greer, was joined by 8 colleagues. Board member John W. Guendelsberger authored a dissenting opinion joined by 5 colleagues.

In this article, we will examine the opinion of the Board in detail and briefly address the reasoning of the dissenting opinion.

To learn more about Pereira, Bermudez-Cota and related decisions, please see our updated article index on the subject [see article]. For a full list of all of our articles on administrative precedent decisions, please see our growing article index [see article].

Updates on Litigation

On May 23, 2019, the United States Court of Appeals for the Ninth Circuit declined to follow Matter of Mendoza-Hernandez and Caupla-Cortes in its published decision in Lopez v. Barr, — F.3d —— (9th Cir. 2019). The Ninth Circuit held that a deficient notice to appear cannot be perfected by the subsequent issuance of a notice of hearing including the time and place of the initial removal hearing. To read the Ninth Circuit’s decision and our summary of it, please see our full article on the subject [see article].

Opinion of the Board

In the following subsections, we will examine the opinion of the Board authored by Board Member Anne J. Greer.

Factual and Procedural History: 27 I&N Dec. at 521-22

The respondents, husband and wife, were natives and citizens of Mexico.

On October 11, 2010, the Department of Homeland Security (DHS) served the respondents with notices to appear. The notices charged the respondents with removability. The notices did not specify the date and time when or the place at which the respondents’ initial removal hearing would be held. On November 22, 2010, the DHS initiated removal proceedings against the respondents by filing the notices to appear with the Immigration Court. On December 8, 2010, the Immigration Court mailed notices of hearings to the respondents. The notices of hearing specified that the respondents’ initial removal hearing was scheduled for 9:00 AM on January 6, 2011, in Miami. The respondents appeared for that initial removal hearing and several subsequent hearings. The respondents’ attorney entered a notice of appearance on March 24, 2011.

The respondents applied for cancellation of removal in removal proceedings. Because neither respondent was a lawful permanent resident, they were required under section 240A(b)(1)(A) of the INA to demonstrate 10 years of continuous physical presence in the United States prior to the service of the notice to appear (the notice to appear stops the accrual of continuous physical presence under section 240A(d)(1)(A)).

The Immigration Judge concluded that the respondents were ineligible for cancellation of removal because they could not establish that they had been continuously physically present in the United States for the 10 years preceding the issuance of the notice to appear in October 2010. The Immigration Judge found that the respondents submitted documentary evidence establishing that they had been physically present in the United States since October 2005. She found, however, that they had failed to submit evidence adequately demonstrating their physical presence in the United States dating back to October 2000.

On September 5, 2017, the respondents filed a motion to reopen removal proceedings with the Immigration Court in order to submit additional evidence relating to their presence in the United States prior to 2005. Before the Immigration Judge issued a decision, the respondents filed a notice of appeal with the BIA on September 11, 2017, thus vesting jurisdiction in the Board.

While the respondents’ appeal was pending, the Supreme Court issued its decision in Pereira. The respondents then filed another motion to remand based on the Pereira decision. The Board explained that the Pereira Court had rejected the Board’s position in Matter of Camarillo, 25 I&N Dec. 644, 651 (BIA 2011) [PDF version], that a notice to appear lacking the time and place of the initial removal hearing triggers the “stop-time rule” under section 240A(d)(1)(A). The respondents argued that based on the Pereira decision, the service of deficient notices to appear to them was insufficient for triggering the stop-time rule.

The Board requested supplemental briefings from the parties on the effect of Pereira in the instant proceedings. Both parties agreed that the issuance of the initial notice to appear did not trigger the stop-time rule because it lacked the time and place of the respondents’ initial removal hearing. However, they differed on the second point. The respondents took the position that the stop-time rule was never triggered in their case and that their continuous physical presence continued to accrue, and would continue to accrue until the DHS issued a notice to appear conforming with section 239(a)(1) of the INA. The DHS argued that the respondents’ deficient notices to appear in conjunction with the notice of hearing specifying the time and place of the initial removal hearing satisfied the written notice requirements of section 239(a)(1) of the INA. Thus, the DHS argued that the stop-time rule was triggered with the issuance of the notice of hearing and that the respondents were ineligible for cancellation because they failed to establish 10 years of continuous physical presence prior to December 2010.

Issue Before the Board: 27 I&N Dec. at 522

The Board summarized the issue in the case as follows:

[W]hether the ‘stop-time’ rule, which provides for termination of continuous residence and physical presence in the United States, is triggered when an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing is subsequently served with a notice of hearing that includes the essential information.

Jurisdictional Arguments Foreclosed by Bermudez-Cota: 27 I&N Dec. at 523-24

The respondents argued as an initial matter that the deficient notice to appear did not vest jurisdiction in the Immigration Court. The Board majority concluded that this jurisdictional argument was foreclosed by Matter of Bermudez-Cota, wherein the Board held that a deficient notice to appear lacking the time and date of the initial hearing is sufficient to vest jurisdiction in the Immigration Court “so long as a notice of hearing specifying this information is later sent to the alien.” The Board noted that the United States Courts of Appeals for the Second, Sixth, and Ninth Circuits deferred to Matter of Bernudez-Cota in unpublished decisions. The United States Court of Appeals for the Eleventh Circuit — in whose jurisdiction in instant matter arose — had also rejected a challenge by an alien who argued that she had not received notice of her removal hearing under these circumstances. Thus, following Matter of Bermudez-Cota, the Board held that it “f[ound] no jurisdictional defect in [the respondents’] proceedings that would warrant termination or remand on this basis.”

Administrative and Judicial Background of Stop-Time Issue: 27 I&N Dec. at 524-29

The Board discussed several important precedent decisions on the issue under consideration in the instant case.

Before the Board or Supreme Court weighed in on the question of whether a deficient notice to appear is sufficient to vest jurisdiction or trigger the stop-time rule, the United States Court of Appeals for the Seventh Circuit published a noteworthy decision in Dababneh v. Gonzales, 471 F.3d 806, 808-09 (7th Cir. 2006) [PDF version] [see article]. The Seventh Circuit held in Dababneh that a defective notice to appear in conjunction with a subsequent notice of hearing including the missing information satisfies the notice to appear requirements of section 239(a) of the INA and is sufficient both for vesting jurisdiction in the Immigration Court and triggering the stop-time rule. The Second Circuit would later follow the same reasoning as the Seventh in Dababneh in its own published decision, Guamanrrigra v. Holder, 670 F.3d 404 (2d Cir. 2012) (per curiam) [PDF version]. The Board cited favorably to Dababneh on the jurisdictional issue in Matter of Bermudez-Cota.

In the since-rejected Matter of Camarillo decision, the Board held that a deficient notice to appear, in and of itself, was sufficient for triggering the stop-time rule in section 240A(d)(1)(A) of the INA. Several circuits afforded administrative deference to the Board’s decision in Matter of Camarillo after agreeing with the Board that the text of the pertinent statutes was ambiguous. We discuss the noteworthy precedent decisions deferring to Matter of Camarillo in a separate article [see article].

The United States Court of Appeals for the Third Circuit stood alone among the circuits in declining to defer to the Board’s conclusions in Matter of Camarillo. In Orozco-Velasquez v. Att’y Gen. U.S., 817 F.3d 78, 81-82 (2d Cir. 2016) [PDF version], the Third Circuit determined that the text of section 239(a)(1) was unambiguous and the Board’s reading of the statute was incorrect. It held that a deficient notice to appear was not a “notice to appear” at all under section 239(a)(1) of the INA, and thus did not trigger the stop-time rule. The Third Circuit held that for that particular case, the stop-time rule only adhered once the government subsequently sent a notice to appear correcting the address of the pertinent immigration court and a notice of hearing establishing the date and place of removal proceedings. The significant point here is that the Third Circuit recognized that the deficient notice to appear in conjunction with the notice of hearing specifying the date and place of proceedings sufficed for triggering the stop-time rule.

Against the backdrop of the split between the Third Circuit and several of its sister circuits, the Supreme Court rendered its important decision in Pereira v. Sessions. The Court held that a deficient notice to appear lacking the date and place of removal proceedings was not a “notice to appear” under section 239(a)(1) and insufficient for triggering the stop-time rule under 240A(d)(1)(A).

Pereira was silent, however, on whether the two-step process of a deficient notice to appear followed by a notice of hearing that includes the date and place of proceedings satisfied the notice requirements in section 239(a)(1). As we discussed, this two-step process was established in Dababneh and followed in Guamanrriga. The Board Matter of Bermudez-Cota found it noteworthy that the two-step process was approved of by the Third Circuit in Orozco-Velasquez in the very same decision it rejected the Board’s precedent in Matter of Camarillo. In agreeing with the Third Circuit about the proper reading of section 239(a)(1), the Supreme Court did not disturb any aspect of Orozco-Velasquez, despite being aware of the circuit split. This, combined with the fact that the Supreme Court did not explicitly resolve how the stop-time rule operates once all the information required by section 239(a)(1) has been furnished to the alien, led the Board to “not read the majority decision in Pereira as invalidating the two-step notice process, under which a subsequently issued notice of hearing ‘cures’ or ‘perfects’ a deficient notice to appear.”

Board Approves of Two-Step Process: 27 I&N Dec. at 529-34

The Board majority concluded that the two-step process sanctioned in Dababneh and Guamanrriga was sufficient for triggering the stop-time rule. That is, a deficient notice to appear, lacking the date and place of proceedings, does not, by itself, trigger the stop-time rule. A deficient notice to appear supplemented by a notice of hearing including the missing information does trigger the stop-time rule. In the instant case, the Board held that the notices to appear issued to the respondents on October 11, 2010, did not trigger the stop-time rule. The issuance of the notices of hearing to the respondents on December 8, 2010, which furnished the necessary information missing in the notices to appear, effectively perfected the deficient notices to appear and triggered the stop-time rule. Under the Board’s decision, the respondents’ period of continuous physical presence in the United States ended with the issuance of the notices of hearing on December 8, 2010, rather than with the issuance of the notices to appear on October 11 of that same year.

The Board explained why it found that its decision was consistent with the Supreme Court’s decision in Pereira. The Board described the Supreme Court as only giving the government the “narrow mandate” in Pereira of giving noncitizens notice of the time and place of their initial removal hearing. Prior to Pereira, multiple circuit courts held that a notice to appear lacking this necessary information in conjunction with a notice of hearing furnishing this information was sufficient to meet the notice requirements in section 239(a)(1) of the Act. The Supreme Court was aware of these decisions when it issued Pereira and did not disturb them. Furthermore, the Board found that its conclusion was consistent with the plain language of section 239(a)(1).

The Board described the respondents’ argument as taking the position that “Pereira can be interpreted more broadly and read in a literal sense to reach a different result…” The respondents asserted that Pereira should be read as requiring that ,in order to trigger the stop-time rule, the notice to appear itself — in a single document — must furnish all of the requisite information under section 239(a)(1). This position necessarily rejected the idea that a subsequent notice of hearing with the information missing in the notice of appear could perfect a deficient notice of appear for stop-time purposes.

The Board rejected the respondents’ reading of Pereira because it “underst[ood] Pereira as directing [it] to respond to the substantive concerns of fundamental fairness inherent in procedural due process and to applicant’s settled expectations about eligibility for relief…” In other words, the Board read Pereira as mandating only that the Government furnish all of the information called for in section 239(a)(1), not that the information must all be included in the notice to appear itself. The result of this reading allowed for the conclusion that the combination of the notice to appear and the notice of hearing sufficed for purpose of section 239(a)(1) and, by extension, to trigger the stop-time rule, provided that all of the section 239(a)(1) information could be found in the combination of the two documents.

The Board highlighted that Pereira was, by its own terms, “narrow.” The Court determined that the question of whether a notice to appear that itself lacks all of the items listed in section 239(a)(1) is sufficient for triggering the stop-time rule swept more broadly than was necessary to resolve issue before the Court in Pereira. The Court left for another day the question of whether a putative notice to appear lacking any of the categories of information enumerated in section 239(a)(1) could under any circumstance suffice for stop-time rule purposes.

The Board majority explained that there were significant differences between the facts in Pereira and the facts in the instant case. In Matter of Bermudez-Cota, which dealt with when authority vests in an immigration court, the Board explained that the alien in Pereira “never received notice of the time and date of his [initial] removal hearing” before failing to appear for that hearing and being ordered removed in absentia. Conversely, the respondent in Bermudez-Cota, like the respondents in the instant case, were properly served with notices to appear followed by notices of hearing specifying the time and place of their initial removal hearings. The respondents in the instant case appeared at their initial removal proceedings after receiving the notices of hearing. In this sense, the Board found that both Matter of Bermudez-Cota and the instant case are factually distinguishable from Pereira.

The Board cited to the Supreme Court’s discussion in Pereira of the purpose of the notice to appear. The Pereira majority wrote that “[i]f the three words ‘notice to appear’ mean anything in [the stop-time rule] 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 in the first place.” Without such information, the Supreme Court held, the Government could not reasonably expect an alien to appear for a removal hearing for which he had not been told when and where it would occur. The Court stated that these conclusions were compelled by “common sense.” The Board condensed the Supreme Court’s reasoning as “explain[ing] that the fundamental purpose of the notice is to convey essential information to the alien, such that the notice creates a reasonable expectation of the alien’s appearance at the removal proceeding…” , The Board held that this purpose “can be satisfied by a combination of documents that jointly provide the notice required by statute.”

The Board acknowledged that section 239(a)(1), by its own terms, describes a “notice to appear” as singular. The Board stated, however, that it did “not read the statute as requiring that the ‘written notice’ be in a single document.” The Board held instead that the requisite notice “may be provided in one or more document-in a single or multiple mailings.” It added that “it may be served personally, by mail, or by a combination of both, so long as the essential information is conveyed in writing and fairly informs the alien of the time and place of the proceedings.”

From Pereira, the Board gleaned that the “essential function,” rather than the form, is the most important point of a notice to appear. While a notice lacking the essential information could not reasonably form the basis of a reasonable expectation that an alien will appear for his or her removal hearing, a notice, in one or multiple documents, containing this information could form such a basis.

The Board moved to discuss the implementing regulations for notices to appear. 8 C.F.R. 1003.18(b) (2018) provides that “the [DHS] shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable.” When providing the time, place, and date of the initial hearing is not practicable, the regulation provides that “the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing.” The Board took away from the regulation that “the focus is on the contents of the notice and facilitating the alien’s appearance, not the title affixed to the document.”

The Board noted that the dissent keyed in on Pereira’s discussion of section 239(a)(2) of the INA, which provides for the submission of a new notice to appear in the cause of a change or postponement of removal proceedings to a new time or place. The Pereira majority found that 239(a)(2) supported its reading of 239(a)(1) in that it presupposed the notice to appear contained the time and place of proceedings. The Board majority here concluded that the Supreme Court’s reasoning on this point in no way precluded the two-step process that allows for a deficient notice of appear. It noted that the Supreme Court was not presented with the question of whether a two-step process involving a notice of hearing perfecting a deficient notice to appear was permissible.

The Board majority faulted the dissent for describing the Third Circuit’s holding in Orozco-Velasquez that a notice of hearing can perfect a notice to appear as incongruous with the Supreme Court’s reasoning in Pereira. The Board majority noted that the Third Circuit did not read section 239(a)(2) as “diminish[ing] the clear-cut command” that section 239(a)(1) requires that the notice specify the time and place at which proceedings will be held. Instead, the Board explained, the Third Circuit merely found that the information could be proffered in the combination of two notices. The Board majority noted that the Third Circuit read section 239(a)(2) as only referring to the Government’s ability to amend a notice to appear after issuing it. The stop-time rule is concerned with whether the alien was, in one notice or two, provided with the complete set of information set forth in section 239(a)(1).

Majority’s Conclusion: 27 I&N Dec. at 534-36

The majority explained that prior to the Board’s publication of the since-abrogated Matter of Camarillo, there was an “emerging consensus” among the circuits in favor of the two-step notice process endorsed in the instant decision. In Pereira, the Supreme Court held clearly that a notice lacking the time and place of proceedings does not trigger the stop-time rule, thereby agreeing with the Third Circuit’s result in Orozco-Velasquez, without weighing in on the two-step process. The Board noted that neither the majority nor concurring opinions in Pereira disapproved of the two-step process. In light of these developments and the Board’s consideration of the relevant provisions, the Board endorsed the two-step process as precedent, which it had described in Matter of Camarillo as “equally plausible” to its now-rejected view in that case.

As a result of the decision, the Board concluded that the respondents’ continuous physical presence terminated on December 8, 2010, when they were issued the notices of hearing specifying the time and place of their initial removal hearings. The Board remanded to the Immigration Judge for consideration of whether the respondents could sustain their burden of establishing ten years of continuous physical presence immediately prior to December 8, 2010. The Board denied their motion to remand based on Pereira.

Overview of the Dissenting Opinion

Board Member Guendelsberger wrote for himself and five colleagues in dissent. Although the dissenting opinion is not the rule going forward, it is worth being aware of going forward. In some cases, Federal courts may be persuaded that the positions articulated in a dissent were correct.

The dissent read Pereira as mandating that the notice to appear itself must contain all of the requisite information set forth in section 239(a)(1), including the time and place of the initial removal hearing. This reading of Pereira forecloses the Board majority’s view that a deficient notice to appear can subsequently be perfected by a notice of hearing. The dissent stated that “[t]he Court in Pereira repeatedly emphasized the ‘plain text’ of the ‘stop-time’ rule and left no room for agency gap-filling as to whether an Immigration Court can ‘complete’ or ‘cure’ a putative ‘notice to appear’ by subsequent issuance of a ‘notice of hearing’ that would trigger the ‘stop-time’ rule on the date of that event.” The dissent rejected the Board’s reliance on Orozco-Velasquez and other pre-Pereira circuit precedents because these decisions did not take into account the Supreme Court’s reasoning in Pereira, which the dissenters held foreclosed the two-step process entirely.

The dissent faulted the majority for “conflating” the notice to appear with the notice of hearing when the statute unambiguously describes only the notice to appear in the stop-time rule. The dissenters further argued that the regulations provide that only the DHS may issue a notice to appear whereas the notice of hearing is issued by the Immigration Court, a component of the Department of Justice (DOJ).

Finally, the dissent distinguished Matter of Bermudez-Cota from the instant case. It noted that Pereira was not concerned with when jurisdiction vests in an Immigration Court, but rather when the stop-time rule is triggered. The dissent noted that several of the unpublished circuit decisions following Matter of Bermudez-Cota recognized that jurisdiction and the stop-time rule are separate and distinct issues, and that Pereira only concerned itself with the latter.

Our Conclusion

Matter of Mendoza-Hernandez and Capula-Cortes is a highly significant precedent decision that may be the subject of litigation in the future. The Supreme Court held clearly in Pereira that a putative notice to appear that does not specify the time and place of the i