Introduction: Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006)

On December 19, 2006, a three-judge panel of the United States Court of Appeals for the Seventh Circuit issued a published decision in Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) [PDF version]. In the decision, the Seventh Circuit held that a notice to appear that lacks the time and/or place of removal proceedings is not defective if it is followed by a notice of hearing which includes that information. Specifically, the Seventh Circuit held that this specific combination of a notice to appear and notice of hearing was sufficient for triggering the “stop-time rule” under section 240A(d) of the Immigration and Nationality Act (INA) for stopping the accrual of continuous physical presence for purpose of eligibility for cancellation of removal.

The decision has taken on added significance in the aftermath of a Supreme Court of the United States decision and a subsequent Board of Immigration Appeals (BIA) decision, both concerning the validity of notices to appear that lack the time and/or place of removal proceedings. In Pereira v. Sessions, 138 S.Ct. 2105 (2018) [PDF version], the Supreme Court held that a purported notice to appear that lacks the time and place of the initial removal proceeding is not a “notice to appear” for purpose of triggering the stop-time rule. The Board subsequently issued a published decision in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) [PDF version], wherein it ruled that a notice to appear lacking the time and place of the initial removal hearing vests authority over the proceedings in an immigration judge and meets the requirements for notices to appear found in section 239(a) of the INA if it is followed by a notice of hearing which specifies the time and date of proceedings. Notably, in that decision, the Board cited favorably to the Seventh Circuit decision in Dababneh, including to its ruling about triggering the stop-time rule (however, note that the stop-time rule was not at issue in Matter of Bermudez-Cota). The Board subsequently agreed with the Seventh Circuit’s view that the two-step process was sufficient for triggering the stop-time rule in Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) (en banc) [see article].

In this article, we will discuss the Dababneh decision and its significance in light of Pereira, Matter of Bermudez-Cota, and Matter of Mendoza-Hernandez and Capula Cortes. To learn about related issues, please see our full and growing index article centered on the Pereira decision and its effects [see index]. You may also see our comprehensive articles on Pereira v. Sessions [see article] and Matter of Bermudez-Cota [see article].

Factual and Procedural History

The petitioner, Nahar Said Dababneh, was a native and citizen of Jordan. He was admitted into the United States as a nonimmigrant visitor on June 1, 1993, and was authorized to remain until December 1, 1993. However, Dababneh remained in the United States after his period of authorized stay expired.

On April 14, 2003, the Department of Homeland Security (DHS) served Dababneh with a notice to appear. The notice informed Dababneh of the charges against him (removable under section 237(a)(1)(B) of the INA) and ordered him “to appear before an Immigration Judge of the United States Department of Justice at: 55 East Monroe Street Suite 900 Chicago, Illinois U.S. 60603 on a date to be set at a time to be set to show why you should not be removed from the United States based on the charge(s) set forth above.” (Emphasis added.) Significantly, the notice of appear did not include the time and date of the initial removal hearing.

On May 1, 2003, the DHS filed the notice to appear it had served on Dababneh with the Immigration Court. One day later, on May 2, 2003, the Immigration Court sent Dababneh a Notice of Hearing in Removal Proceedings. Unlike the notice to appear, the notice of hearing specified the time and date of the initial removal hearing (May 23, 2003, at 9 AM).

Dababneh appeared at his initial removal hearing, and the case was rescheduled for hearing on April 2, 2004, in order to allow Dababneh to secure counsel. The case was then transferred to a new Immigration Judge who moved the second hearing up to January 13, 2004.

In his January 13 hearing, Dababneh, through counsel, argued that the failure of the DHS to include the date and time of the initial hearing on the notice to appear rendered the notice to appear defective. The Immigration Judge requested briefing from both parties. Dababneh moved to have proceedings dismissed based on his contention that the notice to appear was defective and, therefore, a nullity. The DHS responded by arguing that even if the notice to appear was defective for lacking the time and date of proceedings, Dababneh was not prejudiced by the defect. The Immigration Judge ultimately denied Dababneh’s motion to terminate proceedings and denied Dababneh’s subsequent motion to reconsider that decision.

On August 24, 2004, Dababneh conceded that he was removable before the Immigration Judge and designated Jordan as his country of removal. However, he applied for cancellation of removal. In order to be eligible for cancellation of removal under statute, Dababneh needed 10 years of continuous physical presence in the United States prior to the issuance of the notice to appear (meaning he would have had to have been present until June 1, 2003). Based solely on the date of the issuance of the notice to appear on April 14, 2003, Dababneh would not have been eligible to apply for cancellation of removal. However, Dababneh argued that because the notice to appear served upon him on April 14, 2003, did not contain the time and date of his initial removal hearing, it should not be considered to have triggered the stop-time rule and halted his accrual of continuous physical presence. The Immigration Judge ruled in favor of the Government, finding that the notice to appear did, in fact, cut off Dababneh’s continuous physical presence. However, the Immigration Judge specifically advised Dababneh that he could appeal from the finding that the notice to appear was not defective.

The Immigration Judge found that Dababneh was removable and granted him voluntary departure. Dababneh appealed from the decision to the BIA, which affirmed the Immigration Judge’s decision without opinion. Dababneh then appealed from the BIA’s decision to the Seventh Circuit. Under the Seventh Circuit decision in Qureshi v. Gonzales, 442, F.3d 985, 987 (7th Cir. 2006) [PDF version], when the Board affirms an Immigration Judge’s decision without issuing an opinion, “the [Immigration Judge’s] decision becomes that of the BIA for purposes of judicial review.” (Description from Dababneh decision.)

Seventh Circuit Concludes that Immigration Court Had Jurisdiction

The Seventh Circuit concluded that the notice to appear, in conjunction with the notice of hearing, met the requirements of section 239(a) of the INA and vested the Immigration Judge with jurisdiction over his proceedings. The Seventh Circuit’s reasoning on this point was largely identical to the reasoning of the Board nearly twelve years later in Matter of Bermudez-Cota.

Under regulation in 8 C.F.R. 1003.14(a), “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the [DHS].” The regulations further state that the DHS must provide in the notice to appear “the time, place and date of the initial removal hearing, where practicable.” If the time, place, and/or date of the initial removal hearing is not included in the notice to appear, “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 the hearing.” 8 C.F.R. 1003.18. Section 239(a) lists several components of a “notice to appear.” Among these requirements is section 239(a)(1)(G)(i), which states that the notice to appear shall specify “[t]he time and place at which the [removal] proceedings will be held.” Dababdeh argued that the regulations, in conjunction with statute, provide that authority vests in the Immigration Judge only when the DHS files a charging document (notice to appear) that complies fully with section 239 of the INA.

The Seventh Circuit, however, found that “[t]he fact that the government fulfilled its obligations under [section 239(a)] in two documents-rather than one-did not deprive the IJ of jurisdiction to initiate removal proceedings.” The Court cited favorably to the decision of the United States Court of Appeals for the Eighth Circuit on the same issue in Haider v. Gonzales, 438 F.3d 902, 907 (8th Cir. 2005) [PDF version], wherein that Court wrote that its “reading of the INA and the regulations compel[led] the conclusion that the [notice to appear] and the [notice of hearing], which were properly served on [the petitioner], combined to provide the requisite notice.”

The Seventh Circuit announced its rule on the issue of vesting jurisdiction in the Immigration Judge where the time and place of the initial removal hearing are not included in the notice to appear: “In those circumstances, DHS may indicate in the [notice to appear] that it will give the alien subsequent notice of the precise time and place of the hearing once it files the [notice to appear] with the immigration court.” So long as the Immigration Court subsequently properly sends notice of the time and place of the hearing in the notice of hearing, the DHS concluded that “[t]ogether, the [notice to appear] and the subsequent hearing notice [meet] all of the requirements of [section 239(a)(1)].”

Seventh Circuit Concludes that NTA and NOH Were Sufficient for Triggering Stop-Time Rule

The second holding in the Dababneh decision is significant in the aftermath of Pereira and the Board’s favorable reference in Matter of Bermudez-Cota, especially in light of the fact that the stop-time rule was not at issue in Bermudez-Cota. Here, the Seventh Circuit found that the notice to appear in conjunction with the notice of hearing that included the time and date of proceedings was sufficient to trigger the stop-time rule, although the notice to appear had lacked the time and date of proceedings.

Under section 240A(d) of the INA, “[f]or purposes of [cancellation of removal], any period of continuous physical presence in the United States shall be deemed to end when the alien is served notice to appear under section [239(a)] of [the INA].” This is commonly referred to as the “stop-time rule.” As we discussed in the previous section, the notice of appear issued to Dababneh did not meet all of the requirements of section 239(a)(1), specifically, it did not specify the time and date of proceedings. The question was whether this notice itself, or the notice to appear in conjunction with the subsequent notice of hearing, were sufficient to meet the “notice to appear” requirement of section 239(a) as incorporated into section 240A(d).

The Seventh Circuit found that “[t]he language of [section 240A(d)] is clear: if an alien has received an NTA, the period of continuous physical presence is deemed to end.” The Seventh Circuit then concluded that Dababneh had received an “effective [notice to appear] that met the [section] 239 requirements through receipt of both the [notice to appear] and the [notice of hearing].” For this reason, the Court found that “the stop-time rule cut off his accrual of physical presence.”

Post-Pereira BIA References to Dababneh

Before continuing, please note that we also discuss the material in this section in our full articles on Matter of Bermudez-Cota [see section] and Matter of Mendoza-Hernandez and Capula-Cortes [see article].

Although Matter of Bermudez-Cota set forth the Board’s post-Pereira position concerning when a notice to appear vests jurisdiction over proceedings with an Immigration Judge, the stop-time rule was not at issue in the case. After distinguishing the issue in Bermudez-Cota from the Supreme Court decision in Pereira v. Sessions, the Board cited to several circuit court decisions — including Dababneh — that supported its position on jurisdiction. However, of these decisions, Dababneh was the only case in which the stop-time rule was at issue. The Board noted this fact in its decision at 27 I&N Dec. at 447: “With respect to the ‘stop-time’ rule, the court determined that the rule was triggered ‘through receipt of both‘ forms of notice.” Immediately after, the Board wrote that it “agree[d] with the Fifth, Seventh, Eighth, and Ninth Circuits that a two-step notice process is sufficient to meet the statutory notice requirements in section 239(a) of the [INA].” Although not part of its central holding, the Board’s reasoning appears to implicitly endorse the reasoning in Dababneh regarding the stop-time rule for the time-being.

The Board would soon explicitly approve of Dababneh’s two-step process in the stop-time rule context in Matter of Mendoz-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) (en banc). In this decision, the Board held that a deficient notice to appear can be perfected by a subsequently issued notice of hearing furnishing the missing information from the notice to appear. The Board held that these two notices together suffice for triggering the stop-time rule. Where the initial notice to appear is deficient and the missing information is supplied by the notice of hearing, the alien’s accrual of continuous physical presence is halted on the date of the issuance of the notice of hearing. The Board cited favorably to Dababneh among several other circuit court decisions.

Pereira Concurring Opinion Reference to Dababneh

Now-former Justice Anthony Kennedy wrote a concurring opinion in Pereira in which he expressed concern over what he characterized as the undue deference given by several federal circuit courts to the Government’s broad reading of what constitutes a valid notice to appear in the stop-time rule context [see section].

Justice Kennedy’s concurrence included a brief, favorable reference to Dababneh, wherein he distinguished it from the reasoning of decisions that were abrogated by the Court’s decision in Pereira: “The first Courts of Appeals to encounter the question concluded or assumed that the notice necessary to trigger the stop-time rule found in [section 240A(d)(1) of the INA] was not ‘perfected’ until the immigrant received all of the information listed in [section 239(a)(1)].” Among the decisions which Justice Kennedy cited to here was Dababneh.

Interestingly, the Seventh Circuit itself was one of the courts that Justice Kennedy criticized for deferring to the Board’s now-abrogated position that a notice to appear lacking the time and/or date of the initial removal hearing is sufficient by itself to trigger the stop-time rule. In Yi Di Wang v. Holder, 759 F.3d 670 (7th Cir. 2014) [PDF version], the Seventh Circuit noted that Dababneh had not resolved the issue of whether a notice to appear lacking the time and date of the initial hearing was sufficient by itself to trigger the stop-time rule. We note that this is likely due in part to the fact that it would not have changed the outcome of the case since the notice of hearing was also issued prior to Dababneh’s accrual of 10 years of continuous physical presence. The Seventh Circuit in Yi Di Wang deferred to the Board’s former position in Matter of Camarillo, 25 I&N Dec. 644, 647 (BIA 2012), that the notice to appear by itself was sufficient for triggering the stop-time rule.

Justice Kennedy’s favorable reference to Dababneh was meant to highlight his view that the Seventh Circuit and several other circuits had abandoned their initial positions on when a notice to appear triggers the stop-time rule in deference to the Board’s now-abrogated 2012 decision on the issue (notably, he took this position even though the Seventh Circuit in Yi Di Wang disagreed that it had done any such thing). The passage gives one the impression that Justice Kennedy believed that Dababneh was reconcilable with Pereira, although it is important to add that no other Justice joined Justice Kennedy’s concurring opinion, which primarily focused on a separate issue. However, this concurrence taken in conjunction with the Board’s favorable cite to Dababneh in Matter of Bermudez-Cota, lends credence to the idea that the Board will, until or unless directed otherwise, interpret the two-step notice to appear and notice of hearing process as sufficient for triggering the stop-time rule.

Conclusion

Dababneh had become largely insignificant in light of the Board’s decision in Matter of Camarillo and the Seventh Circuit’s decision to follow Matter of Camarillo in Yi Di Wang. However, the Supreme Court’s abrogation of both Matter of Camarillo and Yi Di Wang and the Board’s subsequent favorable citation to Dababneh breathed new life into Dababneh, indicating that the Board is now adopting the pre-Camarillo decisions of the Seventh Circuit and several of its sister circuits in the post-Pereira environment. Dababneh is especially notable among these decisions because it addressed the sufficiency of the two-step notice to appear and notice of hearing process in the context of the stop-time rule.

By its own admission, the Pereira decision was narrowly focused on the specific issue of whether a notice to appear lacking information about the time and place of hearings by itself is sufficient for triggering the stop-time rule. There will likely be extensive litigation on the issue in the future, and it is possible that different federal circuit courts will reach different conclusions on various issues relating to notices to appear that lack the time, place, and/or date of the initial removal hearing. You can read more about these issues in our article index on Pereira and related decisions, which we will update with new articles as they are posted [see index].

(Updated May 9, 2019)