Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018)

On August 31, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) [PDF version]. The decision addressed whether a notice to appear that does not specify the time and place of the alien’s initial removal proceedings vests an Immigration Judge with authority over the removal proceedings, and if so, in what circumstances. The issue is significant due to the recent decision of the Supreme Court of the United States in Pereira v. Sessions, 138 S.Ct. 2105 (2018) [PDF version], wherein the Court held that such a notice of appear does not trigger the stop-time rule, which halts the accrual of continuous physical presence for purposes of cancellation of removal.

The Board found that the issue in Matter of Bermudez-Cota was distinguishable from the one resolved by the Supreme Court in Pereira. The Board held that a notice to appear that does not specify the time and place of the alien’s initial removal proceedings does vest an Immigration Judge with authority over removal proceedings and meet the requirements of section 239(a) of the Immigration and Nationality Act (INA), provided that a notice of hearing specifying the time and date of the initial proceedings is subsequently sent to the alien. It is important to note that while the Board’s ruling means that a notice to appear that does not include the time and place of the initial hearing vests an Immigration Judge with authority over proceedings (provided the notice of hearing is sent later), this initial notice to appear would not trigger the stop-time rule, per Pereira, because it does not include the time and date of proceedings.

In this article, we will discuss the Board’s highly important decision in Matter of Bermudez-Cota and what it means going forward. Please see our discussion of the Supreme Court decision in Pereira for more information on the validity of notices to appear that lack the time and date of initial proceedings [see article]. We also have a growing index of articles on related issues [see index].

Factual and Procedural History: 27 I&N Dec. at 441-42

The respondent, a native and citizen of Mexico, arrived in the United States on or about April 30, 1991, without having been admitted or paroled.

On August 28, 2013, the respondent was served with a notice to appear which ordered him “to appear before an immigration judge of the United States Department of Justice … on a date to be set at a time to be set.” Notably, this notice to appear did not specify the time or place of the initial proceedings. The respondent later conceded in written pleadings that he had been properly served with the August 28, 2013, notice to appear.

On September 9, 2013, the Tucson (Az) Immigration Court mailed a notice of hearing to the address that the respondent had provided to immigration proceedings. The notice of hearing specified the time (May 13, 2014) and place (Tucson Immigration Court) of proceedings. The respondent subsequently appeared at that hearing and at several later hearings.

In a hearing that took place on October 3, 2017, the respondent sought a continuance or administrative closure based on the fact that he may be eligible for adjustment of status. The Immigration Judge denied the respondent’s requests for a continuance or administrative closure, but granted the respondent voluntary departure. The respondent timely appealed from the Immigration Judge’s decision and then filed a motion to terminate proceedings while his appeal was pending.

The respondent’s motion to terminate was based on his argument that the Supreme Court decision in Pereira necessitated the termination of proceedings because the notice to appear had not included the time and date of the initial proceedings. The majority of the Board’s analysis focused on this argument, which it ultimately rejected for reasons that we will examine in the following sections. The Board also denied the respondent’s appeal, which we will examine in a later section of the article [see section].

Respondent’s Arguments In Favor of Motion to Terminate after Pereira: 27 I&N Dec. at 442-43

The respondent argued that his removal proceedings should be terminated under the rule established in the Supreme Court’s decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). If you have not yet read our article on Pereira, we strongly recommend doing so before continuing with this section [see article].

Pereira involved an alien who was issued a notice to appear which did not include the time and place of proceedings, bur he was subsequently issued, a notice of hearing which did include this information. However, the second notice was mailed to the wrong address and the alien failed to appear and was ordered removed in absentia. The alien successfully sought reopening of proceedings and applied for cancellation of removal, but his application was denied on the basis that the notice to appear halted his accrual of continuous physical presence before he could meet the statutory 10-year requirement for cancellation, notwithstanding the fact that the notice did not specify the time and place of proceedings. This omission of information was notable in light of the fact that section 239(a)(1)(G)(i) states that the notice to appear must specify “[t]he time and place at which the proceedings will be held.”

In Pereira, the Supreme Court addressed the question of whether a notice to appear that does not specify the time and place at which the removal proceedings will be held triggers the stop-time rule. The Court held that it did not.

In the instant case, the respondent compared the circumstances of his notice to those at issue in Pereira. Namely, the respondent contended that his notice to appear was legally defective because it did not include the time and place of the initial proceedings, just like the notice in Pereira. Although the Supreme Court only addressed the narrow question of whether such a deficient notice triggers the stop-time rule, the respondent in the instant case argued that the decision should be read more broadly, taking the position that the decision rendered a notice that does not specify the time and place of proceedings as defective for all purposes. Under Attorney General regulations at 8 C.F.R. 1003.14 (2018), “[j]urisdiction vests, and proceedings before an Immigration Judge commence when [the Department of Homeland Security (DHS) files] a charging document … with the Immigration Court.” Relying upon this regulation in conjunction with Pereira, the respondent argued that a notice to appear that does not specify the time and place of proceedings does not vest jurisdiction with an Immigration Judge. Acceptance of this argument, the respondent reasoned, would necessitate the termination of his proceedings. For the forthcoming reasons, the Board found the respondent’s arguments to be unavailing.

BIA Finds that Pereira is Distinguishable From the Instant Case: 27 I&N Dec. at 443-44

The respondent’s argument hinged on the claim that the situation in the instant case was not meaningfully distinguishable from that in Pereira. However, the Board concluded that the facts in the instant case, and the limits of the Supreme Court’s decision in Pereira, made the instant case meaningfully distinguishable.

First, the Board explained that “Pereira involved a distinct set of facts.” Chief among them, the respondent in the instant case was properly served with both and he received the both the initial notice to appear and the subsequent notice of hearing two weeks later, the latter of which did specify the time and place of removal proceedings. Unlike the petitioner in Pereira, the respondent in the instant case attended his initial hearing and all subsequent hearings. The Board noted that in Pereira the Supreme Court held that a purported notice to appear that does not specify the time and place of removal proceedings is not a “notice to appear” under section 239(a) of the INA because “[c]onveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceedings.” 138 S.Ct. at 2115. However, in the instant case, the Board observed that “[t]he respondent … clearly was sufficiently informed to attend his hearings.”

Second, the Board noted that the respondent, unlike the petitioner in Pereira, was not applying for cancellation of removal, meaning the stop-time rule which was a central point of contention in Pereira was not an issue in his case. The Supreme Court emphasized in Pereira that it was considering only the “narrow” issue of “whether a notice to appear that does not specify the time and place at which proceedings will be held, as required by section 239(a)(1)(G)(i), triggers the ‘stop-time’ rule for purposes of cancellation of removal.” Id. at 2110, 2113. The Board added that “[h]ad the Court intended to issue a holding as expansive as the one advanced by the respondent, presumably it would not have specifically referred to the question before it as being ‘narrow.’” In addition to the Court’s stating that its ruling was narrow and focused only on the “dispositive question” relating to the stop-time rule, the Board explained that “the Court did not purport to invalidate [Pereira’s] underlying removal proceedings or suggest that proceedings should be terminated. In fact, the Court remanded the matter for ‘further proceedings.’” (Emphasis added.) Id. at 2120. The Board further noted that the Court itself referenced former 8 C.F.R. 3.18 (1998), now re-designated as 8 C.F.R. 1003.18 (2018), which provides that “the time, place and date of the initial removal hearing [need only be provided], where practicable.” The Court also acknowledged the Government’s admission that nearly all of the notices to appear issued over the prior three years had lacked the time and place of initial proceedings. Yet, despite all of that, the Court nevertheless limited its decision to whether such a notice to appear is sufficient for triggering the stop-time rule, and provided no indication that it should necessitate the invalidation or termination of removal proceedings on the ground of failure of the notice to vest jurisdiction in the administrative judge.

Third, the Board acknowledged that the Court “questioned arguments concerning the alleged inability of the DHS to specify an accurate date and time for the initial hearing on the notice to appear.” Id. at 2118-19. However, notwithstanding its skepticism of these arguments, “the Court did not hold that proceedings initiated by a notice to appear that fails to specify a time, date, and place for the initial hearing should be terminated.”

Regulations Support Position that Proceedings Should Not Be Terminated: 27 I&N Dec. at 444-45

The Board next held that terminating proceedings where the service of a notice to appear was proper under 8 C.F.R. 1003.18(b) (2018) “would require us to disregard a regulation that we are compelled to follow.” It noted that in Matter of L-M-P-, 27 I&N Dec. 265, 267 (BIA 2018) [PDF version] [see article], the Board held that neither it nor an Immigration Judge may “disregard the regulations, which have the force and effect of law.”

The respondent argued that 8 C.F.R. 1003.14(a) necessitated the termination of his proceedings. The regulation reads as follows:

Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the [DHS]. The charging document must include a certificate showing service on the opposing party [under 8 C.F.R. 1003.32] which indicates the Immigration Court in which the charging document is filed.”

The Board disagreed with the respondent’s reading of the above regulation. It observed that nowhere in the text of 8 C.F.R. 1003.14(a) does it “specify what information must be contained in a ‘charging document’ at the time it is filed with an Immigration Court, nor does it mandate that the document specify the time and date of the initial hearing before jurisdiction will vest.” The Board added that 8 C.F.R. 1003.15(b) (2018), “which lists the information that must be contained in a notice to appear, does not mandate that the time and date of the initial hearing must be included in that document.”

Circuit Decisions Support Conclusion that Proceedings Need Not be Terminated: 27 I&N Dec. 445-47

The Board then addressed several Federal circuit court decisions that it interpreted as supporting its conclusion that proceedings should not be terminated, including binding precedent from the United States Court of Appeals for the Ninth Circuit (the instant case arose in the jurisdiction of the Ninth Circuit). To learn about the jurisdiction of the Federal circuit courts which we will discuss in this section, please see our full article on the subject [see article].

United States Court of Appeals for the Ninth Circuit — The Board explained that the Ninth Circuit had rejected “arguments similar to those of the respondent” in precedent decisions. Notably, in Popa v. Holder, 571 F.3d 890 (9th Cir. 2009) [PDF version], the Ninth Circuit was confronted with a case where an alien was issued a notice to appear that did not specify the time and place of proceedings, and which stated that a subsequent notice would include notification of the time and place of the initial hearing. The notice also instructed the alien to inform the Immigration Court of any change in address or phone number during the pendency of proceedings.

The alien moved, failed to notify the Immigration Court of her change of address, and did not receive her notice of hearing after it was mailed to her previous address. She was ordered removed in absentia. The alien subsequently filed a motion to reopen proceedings and rescind the in absentia removal order based on lack of notice.

The Ninth Circuit ultimately denied the alien’s motion. It acknowledged that section 239(a)(1)(G)(i) requires the notice to appear to specify the time and place of proceedings. However, it added that it had never held that the notice to appear could not state that the time and place of proceedings would be set at a future time by the Immigration Court. Id. at 895. In this precedent decision, the Ninth Circuit held that “a Notice to Appear that fails to include the time and date of an alien’s deportation hearing, but that states that a date and time will be set later, is not defective [under section 239(a)(1)(G)(i)] so long as a notice of hearing is in fact later sent to the alien.” Id. at 895-96. (Internal citations omitted.)

United States Court of Appeals for the Fifth Circuit — In 2009, the Fifth Circuit issued a published decision in Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009) [PDF version]. In that case, an alien was issued a notice to appear at the San Antonio Immigration Court at a time and date to be set. A notice of hearing with the time and date was mailed to the incorrect address, and the alien was subsequently ordered removed in absentia. Proceedings were reopened after it was determined that the alien had provided proper notice of a change of address. However, the alien did not appear at the reopened hearing and was again ordered removed in absentia.

The alien filed a second motion to reopen proceedings, arguing that he had not been provided the requisite notice of his removal hearing because the notice to appear did not specify the time and date of proceedings. However, the Fifth Circuit rejected his argument, reaching the same conclusion as the Ninth Circuit in Popa that a notice to appear that does not specify the time and date of proceedings is sufficient if it is followed by a notice of hearing that does specify the time and date.

United States Court of Appeals for the Eighth Circuit — In 2006, the Eighth Circuit issued a published decision in Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006) [PDF version]. In this case, the alien was issued a notice to appear that did not specify the time and date of his hearing. A notice of hearing was later sent to the alien with the time and date included, but the alien did not receive the notice of hearing because he had moved without notifying the Immigration Court. After being ordered removed in absentia, the alien argued that his right to due process was violated because the notice to appear did not specify the time and date of his initial hearing.

The Eighth Circuit rejected the alien’s arguments regarding the alleged failure of the initial notice to vest jurisdiction. It took the position that a notice to appear lacking the time, place, and date of an initial hearing constitutes sufficient notice in conjunction with a notice of hearing subsequently issued by the Immigration Court that contains this information.

United States Court of Appeals for the Seventh Circuit — In 2006, the Seventh Circuit issued a published decision in Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) [PDF version]. In this case, the alien was issued a notice to appear lacking the time and date of his hearing. However, one day later, the alien was served with a notice of hearing containing this information. The alien appeared at all of his hearings and applied for cancellation of removal on the ground of lack of jurisdiction. However, the Seventh Circuit rejected his application after concluding that the notice to appear and the notice of hearing together vested the Immigration Court with jurisdiction over proceedings and triggered the stop-time rule. It is worth noting that the Supreme Court did not reference this decision negatively in Pereira. Please see our full article to learn more about the Dababneh decision [see article].

The Board stated that it agreed with the conclusions of 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].” Thus, a notice to appear lacking the time, date, and place of proceedings vests an Immigration Judge with jurisdiction over proceedings and meets the requirements of section 239(a) of the INA provided that a notice of hearing that includes the time, date, and place of proceedings is later mailed to the alien. Because the respondent in the instant case did receive a notice of hearing specifying the time and place of his proceedings, the Board concluded that the notice to appear was not defective, and denied the respondent’s motion to terminate his removal proceedings.

Separate Issue — BIA Denies Requests for Administrative Closure and Continuance: 27 I&N Dec. at 447

In addition to seeking termination of proceedings, the respondent had initially sought either administrative closure or a continuance of proceedings.

First, the Board held that the respondent’s request for administrative closure was foreclosed by the recent published decision of Attorney General Jeff Sessions in Matter of Castro-Tum, 27 I&N Dec. 271, 272 (A.G. 2018) [PDF version]. Under that decision, neither the Board nor the Immigration Judge had jurisdiction to order administrative closure in the instant case. You may read more about Matter of Castro-Tum in our full article index on the decision and related issues [see index].

Second, the Board agreed with the Immigration Judge that the respondent did not establish good cause for a continuance. Specifically, the Board noted that (1) the case had already been continued once, (2) the respondent had not shown that he was eligible for any form of relief from removal, and (3) whether the respondent would be eligible for adjustment of status in the future was a matter of speculation. Regarding the third point, the Board cited to the recent Attorney General decision in Matter of L-A-B-R-, 27 I&N Dec. 405, 414 (A.G. 2018) [PDF version] [see article], wherein the Attorney General held that “continuances should not be granted when a respondent’s collateral pursuits are merely speculative.”

However, because the respondent submitted timely proof that he paid his voluntary departure bond, the Board reinstated the voluntary departure period granted by the Immigration Judge.

Conclusion

Matter of Bermudez-Cota is the first significant precedent navigating the new notice to appear rules in the aftermath if the Supreme Court’s Pereira decision. In Pereira, the Supreme Court set clear guidelines for what constitutes a valid notice to appear for purpose of triggering the stop-time rule. In Bermudez-Cota, the Board distinguished Pereira in holding that a notice to appear lacking the time and date of proceedings vests an Immigration Judge with jurisdiction over proceedings and meets the requirements of section 239(a) so long as it is followed by a notice of hearing, properly mailed to the respondent, that includes the time and date of the initial hearing. It is also notable that the Board cited favorably to Dababneh, wherein the Seventh Circuit held that this same notice to appear and notice of hearing combination is sufficient for triggering the stop-time rule, although the stop-time rule was not at issue in the instant case.

We will continue to closely follow how the rules for notice to appears continue to develop in the post-Pereira environment. To read more about the issue, please see our article index, which will be updated as we post further articles on the subject [see index].