Introduction: Lopez v. Barr (9th Circuit)

On May 22, 2019, the United States Court of Appeals for the Ninth Circuit published a noteworthy decision in Lopez v. Barr, —- F.3d —— (9th Cir. 2019) [PDF version]. The Court held that a defective notice to appear, lacking the time and place of removal proceedings, does not trigger the stop-time rule even when it is later supplemented by a notice of hearing designating the time and place of removal proceedings. In so doing, the Ninth Circuit declined to follow the Board of Immigration Appeals’ (BIA’s) recent precedent decision in Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) (en banc) [PDF version], wherein the Board held that a defective notice to appear in conjunction with a subsequent notice of hearing including the missing information triggers the stop-time rule. The difference between the majority opinion in Lopez and the majority opinion of the Board in Matter of Mendoza-Hernandez and Capula Cortes hinges on their divergent readings of the Supreme Court of the United States’ decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018) [PDF version], wherein the Court held that a defective notice to appear does not trigger the stop-time rule, but did not explicitly address whether it could be subsequently “perfected” by the issuance of a notice of hearing.

The majority opinion in Lopez was authored by Judge Edward R. Korman of the United States District Court for the Eastern District of New York, sitting by designation. A dissenting opinion was authored by Judge Consuelo M. Callahan.

In this article, we will examine the opinion of the court by Judge Korman in detail and the dissenting opinion by Judge Callahan in brief. We will also examine what the decision means going forward.

Related Articles

The Lopez decision comes in the midst of ongoing litigation in the aftermath of the Supreme Court’s consequential decision in Pereira v. Sessions. Before reading this article, you may want to consult our past articles on this subject and related issues.

We discuss the Supreme Court’s Pereira decision in detail in a full article [see article]. We have a separate article addressing the Board’s decision in Matter of Mendoza-Hernandez and Capula-Cortes, which was rejected by the Ninth Circuit in the instant decision [see article]. These articles, and other related articles, are collected in our growing article index on the subject [see index].

Majority Opinion (Judge Korman)

We will begin by examining the majority opinion authored by Judge Korman. His opinion was joined by Judge Dorothy W. Nelson.

Factual and Procedural History

The petitioner, a citizen of Mexico, became a lawful permanent resident on February 12, 2002. On March 14, 2008, the petitioner helped another alien enter the United States illegally by furnishing her with a U.S. citizen’s birth certificate, driving to Mexico to pick her up, and returning to the United States with her through a port of entry. The petitioner was arrested by border patrol agents, and he confessed to having assisted the alien in her attempt to enter the United States illegally. For this, the petitioner was served with a notice to appear and placed in removal proceedings.

In removal proceedings, the petitioner sought relief in the form of cancellation of removal for lawful permanent residents under section 240A(a) of the Immigration and Nationality Act (INA). The question upon which the instant case hinged was whether the petitioner could establish that he had resided in the United States continuously for the seven years immediately preceding the proceedings, as required by section 240A(a)(2) of the INA. The immigration judge concluded that the petitioner had not — finding that he had been admitted to the United States on February 12, 2002, and that the March 2008 issuance of the notice to appear terminated his period of continuous physical presence just under one year shy of the requisite seven years. Under section 240A(d)(1), an alien’s accrual of continuous physical presence is deemed to be halted when he or she “is served a notice to appear under section 239(a)” of the INA. The BIA affirmed the immigration judge’s decision, leading to the petitioner’s appeal to the Ninth Circuit.

While the petitioner’s appeal was pending before the Ninth Circuit, the Supreme Court rendered its decision in Pereira. In Pereira, the Supreme Court held that a Notice to Appear must conform with the requirements of section 239(a) of the INA in order to trigger the stop-time rule under section 240A(d)(1). Specifically, the Notice to Appear must include “[t]he time and place at which the proceedings will be held…” In Pereira, the Court concluded the petitioner in that case did not have his period of continuous physical presence terminated by the issuance of a Notice to Appear that did not include the time and place at which his initial removal hearing would be held.

Pereira was, at the very least, relevant to the petitioner’s situation in the instant case because the Notice to Appear which was served upon him in March 2008 did not include the time and place at which his initial removal hearing would be held. Thus, the Notice, standing alone, was defective under the standard articulated by the Supreme Court in Pereira. One factor distinguished the facts of the petitioner’s case from those in Pereira, however. Subsequent to the service of the defective Notice to Appear, the petitioner was advised by the Immigration Court of the time, date, and location of his initial removal hearing in the form of a “Notice of Hearing.” In Pereira, no Notice of Hearing was issued within a time frame that would have triggered the stop-time rule if it was deemed to be sufficient for perfecting a deficient Notice to Appear. For that reason, the Ninth Circuit ordered supplemental briefing from the parties — in light of Pereira — on whether a Notice of Hearing containing the time and place at which the alien must appear for his or her initial removal hearing can cure, or perfect, a deficient Notice to Appear.

Pereira Abrogates Past Ninth Circuit Precedent Endorsing Two-Step Notice Process

Judge Korman began his analysis of the Supreme Court’s decision in Pereira. He explained that the Pereira Court held that a Notice to Appear must contain all of the items listed in section 239(a)(1) of the INA — including the date, time, and place of the removal proceeding — in order to trigger the stop-time rule. Pereira, 138 S.Ct. at 2113-14. Pereira stated specifically that “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section [239(a)],’ and so does not trigger the stop-time rule.” Id.

Judge Korman observed that the Notice to Appear served upon the petitioner in the instant case was clearly deficient under Pereira. The government did not contest this point with regard to the Notice itself. Instead, the Government relied upon the Ninth Circuit’s precedent in Popa v. Holder, 571 F.3d 890 (9th Cir. 2009) [PDF version], to argue that the subsequent Notice of Hearing served upon the petitioner cured the deficiencies of the initial Notice to Appear, thereby triggering the stop-time rule as of the date of the Notice of Hearing.

In Popa, which was issued nearly a decade before Pereira, the Ninth Circuit held that “a Notice to Appear that fails to include the date and time of an alien’s deportation hearing, but that states a date and time will be set later, is not defective so long as a notice of the hearing is in fact later sent to the alien…” Popa, 571 F.3d at 896. Judge Korman, however, rejected the government’s reliance on Popa, finding that the three grounds upon which Popa’s conclusion rested “have been ‘undercut’ by Pereira such that that ‘the cases are clearly irreconcilable.’” Quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) [PDF version]. Below, we will examine Judge Korman’s discussion of the three grounds on which Popa was based and why he concluded that they were irreconcilable with the Supreme Court’s decision in Pereira.

1. “First, Popa explained that we ‘silently … adopted the rule that the time and date of a removal proceeding can be sent after the first notice to appear’ because we ‘never held that the [Notice to Appear] cannot state that the time and place of the proceedings will be set at a future time.’” Popa, 571 F.3d at 805 (emphasis added).

Judge Korman stated that “Pereira resoundingly rejected what Popa deemed ‘silently adopted.’” In reaching this conclusion, he explained that Pereira, “[u]nlike Popa, … relies on unambiguous statutory language.” The Supreme Court concluded that “when the term ‘notice to appear’ is used elsewhere in the [INA], including as the trigger for the stop-time rule, it carries with it the substantive time-and-place criteria required by [INA 239(a)].” Pereira, at 2116. Because the Ninth Circuit held in Papa that a Notice to Appear that lacks the time and place of proceedings is not statutorily defective, and because the Supreme Court in Pereira held the opposite, Judge Korman concluded that the decisions were irreconcilable.

2. “Second, Popa relied on now-outmoded out-of-circuit case law in adopting a ‘two-step notice procedure.’”

Popa at 895-96 relied on three out-of-circuit precedents for support for the proposition that the time and place defects in a Notice to Appear can be cured by the subsequent issuance of a Notice of Hearing: Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009) [PDF version]; Dababneh v. Gonzales, 471 F.3d 806, 809-10 (7th Cir. 2006) [PDF version]; and Haider v. Gonzales, 438 F.3d 902, 907 (8th Cir. 2006) [PDF version]. Judge Korman noted that the Ninth Circuit was not bound by any of the three foregoing pre-Pereira decisions. Furthermore, he concluded that “none of these cases comports with the unambiguous statutory text.”

The Board in Matter of Mendoza-Hernandez and Capula-Cortes had earlier disagreed with the Ninth Circuit’s position in the instant case, finding that several pre-Pereira decisions supported the validity of the two-step notice process post-Pereira. We discuss the Dababneh decision and its continuing relevance to the Board in a separate article on site [see article].

3. “Third, the final ground undergirding Popa was a regulation-namely 8 C.F.R. 1003.18.”

8 C.F.R. 1003.18 states in the pertinent part that DHS “provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. If that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice … of the time, place, and date of the hearing.” Popa had relied upon that regulation, and stated that the regulation was necessary “[b]ecause circumstances may arise in which it is not feasible … to state the date, time, and place of a removal hearing at the time the [Notice to Appear] is sent.”

Judge Korman concluded, for a variety of reasons, that 8 C.F.R. 1003.18 did not bear on cancellation of removal. The Ninth Circuit had previously noted in Karingithi v. Whitaker, 913 F.3d 1158, 1160 n.1 (9th Cir. 2019) [PDF version], that “Pereira appears to discount the relevance of 8 C.F.R. 1003.18 in the … context of eligibility for cancellation of removal.” Judge Korman agreed with this footnote, observing that the regulation “does not, on its face, relate to the stop-time rule.” He added that the regulation — which “pertains to scheduling cases and providing notice” — “rewrites the statute.” The Supreme Court in Pereira rejected prudential concerns raised by the government in support of the position that a deficient Notice to Appear can trigger the stop-time rule. For these reasons, Judge Korman concluded that the Ninth Circuit could no longer rely on considerations which would necessitate departing from the statutory text.

The Board in Matter of Mendoza-Hernandez and Capula-Cortes disagreed with the Ninth Circuit about the relevance of 8 C.F.R. 1003.18 to a two-step notice process.

Rejecting Readings That Notice Can Be Satisfied Through Multiple Documents

The government argued that a Notice of Hearing can cure a defective Notice to Appear. Judge Korman noted that the phrase “notice of hearing” does not appear in the INA. Instead, the INA refers only to a “notice to appear” and a “notice of change in time and place of proceedings,” and specifically sets forth when these forms may be issued and what they must include. The government nevertheless took the position that the statute is silent on whether the requisite notice must be in the form of a single document or whether it can be composed of multiple documents.

Judge Korman concluded that the statute spoke clearly, specifying a single “notice to appear” in the stop-time rule provision of section 240A(d)(1).

The dissenting opinion would have ruled in favor of the government, but on different grounds than those argued by the government. The dissent argued that the Dictionary Act at 1 U.S.C. 1 provided guidance on how to read INA 240A(d)(1) in that it states that all references to “a notice” or “the notice” in federal statutes should be read as referring both to the singular and the plural. Under this reading, the fact that INA 240A(d)(1) refers to a “notice to appear” would not foreclose the possibility that the notice requirement could be satisfied through the service of multiple documents. Judge Korman rejected this position for two reasons:

1. “First, the Supreme Court has held that reliance on the Dictionary Act’s rule regarding ‘words importing the singular,’ … is appropriate only ‘[o]n the rare occasions when … doing so [is] necessary to carry out the evident intent of the statute.’” U.S. v. Hayes, 555 U.S. 415, 422 n.5 (2009) (internal citations omitted) [PDF version].

In Pereira, the Supreme Court held that the “essential function of a notice to appear” is to “[c]onvey[] … time-and-place information to a noncitizen.” Pereira, at 2115. Judge Korman concluded that this objective could be satisfied by the service of a single Notice to Appear containing that information. Thus, he found that resort to the Dictionary Act was unnecessary to carry out the intent of the stop-time rule.

2. “Second, reading [INA 240A] as the dissent does, the stop-time provision would be triggered ‘when the alien is served notices to appear under [INA 239(a)].’”

Citing to Pereira, Judge Korman noted that “no matter how many documents are sent, none qualifies as a ‘notice to appear’ unless it contains the information [INA 239(a)] prescribes.” Citing to Pereira at 2110. Thus, Judge Korman reasoned that multiple deficient notices could not satisfy the statutory requirement of a single and complete Notice to Appear.

No Deference Owed to Contrary Board Precedent

The en banc BIA had issued a post-Pereira precedent decision in Matter of Mendoza-Hernandez and Capula-Cortes on the very issue that was before the Ninth Circuit in the instant case . The Board’s central holding was that “where a notice to appear does not specify the time or place of an alien’s initial removal hearing, the subsequent service of a notice of hearing containing that information perfects the deficient notice to appear, triggers the ‘stop-time’ rule, and ends the alien’s period of continuous residence or physical presence in the United States.” 27 I&N Dec. 520, 529 (BIA 2019) (en banc). Judge Korman determined, for the following three reasons, that the Board’s precedent in Matter of Mendoza-Hernandez and Capula-Cortes was not owed administrative deference.

1. The Board’s construction of Pereira was not entitled to deference.

“First, the threshold issue addressed by the BIA was whether Pereira definitively resolved whether ‘subsequent service of a notice of hearing containing [time and place] information perfects the deficient notice to appear, trigger[ing] the stop-time rule.’” Id. Judge Korman noted that the Board itself acknowledged that Pereira could be “read in a literal sense to reach a different result” than did the Board. Id. The Board, of course, eschewed such a literal reading. The government took the position that the Board should defer to the Ninth Circuit’s conclusion.

Judge Korman found that deference was not warranted on this point. In Ayala-Chavez v. I.N.S., 945 F.2d 288, 294 (9th Cir. 1991) [PDF version], the Ninth Circuit held that “a reviewing court should defer to an administrative agency only in those areas where that agency has particular expertise.” Judge Korman cited to a decision of the United States Court of Appeals for the District of Columbia Circuit to find that the interpretation of judicial decisions was not in the area of the BIA’s expertise: “There is therefore no reason for courts-the supposed experts in analyzing judicial decisions-to defer to agency interpretations of the Court’s opinions.” Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc) [PDF version], vacated on other grounds by FEC v. Atkins, 524 U.S. 11 (1998). For these reasons, the Ninth Circuit declined to give Chevron deference to the Board’s interpretation of Pereira (see Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) [PDF version]; National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) [PDF version]).

2. “Second, the BIA’s analysis is disingenuous.”

Judge Korman found that the Board misread, or understated, a key point in Pereira. The Board read Pereira as “includ[ing] language stating that a notice lacking the specific time and place of the removal hearing does not equate to a notice to appear under [INA 239(a)(1)].” Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. at 529-30. Instead, Judge Korman stated that “the Supreme Court held that [INA 239(a)(1)] defines what a notice to appear is, and that the definition is imported every time the term ‘notice to appear’ is used in the statute-especially when it is used in the stop-time rule, …, which refers to a ‘notice to appear under [INA 239(a)].” Pereira, at 2116. In light of the foregoing, Judge Korman held that “[t]he BIA ignored the plain text of the statute” and “disregarded the Supreme Court’s holding construing the statute in accordance with its plain language.”

Judge Korman agreed with the dissenting opinion in Matter of Mendoza-Hernandez and Capula-Cortes that the plain language of the stop-time rule was — as the Supreme Court held — unambiguous [see dissent]. Because the language of the statute was unambiguous, the Board’s contrary construction was not entitled to administrative deference.

3. “Third, to the extent that the BIA relied upon [pre-Pereira decisions], those cases cannot be reconciled with Pereira.”

The Board relied heavily on several pre-Pereira decisions endorsing a two-step notice process, including the decision of the United States Court of Appeals for the Third Circuit in Orozco-Velasquez v. Attorney General, 817 F.3d 78 (3d Cir. 2016) [PDF version], wherein the Third Circuit agreed with the eventual result in Pereira regarding deficient Notices to Appear in and of themselves and the stop-time rule. Judge Korman read Pereira as abrogating Popa, the pertinent precedent relied on by Orozco-Velasquez, and several other pre-Pereira decisions regarding a two-step notice process. He held that “[t]he BIA cannot rely on abrogated decisions in hopes of securing deference from the very courts that issued the now-defunct precedent. Such an approach would be hopelessly circular.”

The Board relied on the fact that Pereira did not address whether a deficient Notice to Appear can be “perfected” by a Notice of Hearing. Judge Korman took the position that “[t]he BIA reads too much into the [Supreme] Court’s judicial restraint and fails to recognize that none of these pre-Pereira decisions took into account the Supreme Court’s conclusion in Pereira that the stop-time rule was plain and unambiguous regarding the requirement that the Notice to Appear must contain in itself the time and place of the initial removal hearing. Again, Judge Korman agreed with the dissenters in Matter of Mendoza-Hernandez and Capula-Cortes.

Defective Notice to Appear Cannot Be Cured By Subsequent Correction

The government sought to support its position that the Notice to Appear could be perfected by a Notice of Hearing by “point[ing] to purportedly analogous areas of law where an initial defect may be cured by a litigant’s subsequent acts.” Judge Korman specifically referenced Becker v. Montgomery, 532 U.S. 757, 760 (2001) [PDF version], wherein the Supreme Court held that an unsigned notice of appeal is deemed timely if it is signed after the time to appeal has expired. Pereira, however, distinguished the issue before it from Becker, on the basis that the “omission of time-and-place information is not … some trivial, ministerial defect, akin to an unsigned notice of appeal. Failing to specify integral information like the time and place of removal proceedings unquestionably would deprive the notice to appear of its essential character.” Pereira, at 2116-17. Judge Korman found two other similar decisions to be unavailing to the case that a defective Notice to Appear can be cured: “[T]he primary function of a Notice to Appear is to give notice, which is essential to the removal proceeding, Pereira, 138 S.Ct. at 2114-15, so the Attorney General’s reliance on Becker [and similar decisions] is misplaced. Each of those cases allowed litigants to correct trivial or ministerial errors. The requirements of a Notice to Appear, however, are ‘substantive.’” Pereira. At 2116.

Issue of Jurisdiction Vesting Is Distinguishable

The government argued, in the alternative, that the Ninth Circuit’s decision in Karingithi should inform its decision in Lopez. Judge Korman found that Karingithi was materially distinguishable. The question in Karingithi was whether a defective Notice to Appear vested jurisdiction over removal proceedings in the immigration court. In finding that it did, the Ninth Circuit held that “Pereira simply has no application [to the Immigration Court’s jurisdiction]. … [T]he only question [in Pereira] was whether the petitioner was eligible for cancellation of removal.” Karingithi, 913 F.3d at 1161. Karingithi relied on regulations governing what a notice must contain for jurisdiction to vest in the immigration court. Regarding the instant case, Judge Korman wrote that “our decision here is based on the statute’s text, not a regulation, and we are assessing eligibility for cancellation of removal.”

No Reliance on Eleventh Circuit Dicta

In one unpublished decision, the United States Court of Appeals for the Eleventh Circuit wrote that a defective Notice to Appear, together with a Notice of Hearing, “fulfilled the notice requirements in [INA 239(a)(1).” Molina-Guillen v. U.S. Attorney General, 758 Fed.Appx. 893 (11th Cir. 2019) [PDF version]. In addition to the fact that Molina-Guillen was an unpublished out-of-circuit decision, Judge Korman noted that “[n]ot only had the petitioner abandoned the argument that a Notice of Hearing cannot cure a defective Notice to Appear, but Molina-Guillen does not engage the statutory text.” For these reasons, the Ninth Circuit was unpersuaded by Molina-Guillen.

Limited Scope of Holding

Judge Korman explained that “DHS’s ability to issue a Notice that complies with the statute limits the set of cases affected by our holding.” Under the new Ninth Circuit interpretation of the stop-time rule, the DHS may reissue Notices to Appear with the requisite time-and-place information. “The cases most affected by our holding will be those where a defective Notice to Appear issued so near to when an alien attained the requisite years of residence that DHS cannot reissue a complete Notice to Appear before the statutory period elapses.”

Majority Opinion Conclusion

Because the Ninth Circuit found that the petitioner’s period of continuous residency was terminated neither by the defective Notice to Appear nor the subsequent Notice of Hearing, it concluded that his continuous residency continued beyond 2008. Thus, he accrued the requisite continuous residence for cancellation of removal purposes and was not statutorily ineligible for the relief sought.

Dissenting Opinion (Judge Callahan)

Judge Callahan agreed with the majority to the extent that the stop-time rule is only triggered when the alien is provided with the time and place of the removal proceedings. She diverged from the majority in not reading Pereira as foreclosing the possibility that the time and place information can be proffered through multiple documents. For this reason, she would have concluded that the stop-time rule can be triggered by the alien’s receipt of supplemental notice. In the instant case, this reading would have resulted in the petitioner’s continuous residence being stopped with the service of the Notice of Hearing containing the time and place of the initial removal hearing.

In support of her reading, Judge Callahan noted that Pereira did not address specifically whether notice can be provided through more than one document, for it was not necessary to resolve the issue immediately before it in Pereira.

Judge Callahan found the majority’s argument that “notice to appear” must be read as being singular unpersuasive. Specifically, she found the Supreme Court’s decision in Hayes inapplicable because the majority’s reading of “notice to appear” as being singular — contrary to the alternative position supported by 1 U.S.C. 1 — “frustrates, rather than furthers, ‘Congress’ aim.’” Hayes, 555 U.S. 415, 422 n.5.

Judge Callahan found the majority’s reasons for not deferring to the Board unpersuasive as well. While she agreed that the Ninth Circuit owed no deference to the Board’s interpretation of Pereira, “this does not mean that the position of the agency most [a]ffected by a statute does not deserve some consideration.” Furthermore, she argued that Popa, and similar decisions, where not abrogated by Pereira because Pereira never reached the question of the validity of a two-step notice process.

Finally, Judge Callahan argued that the errors in the majority’s decision would have damaging consequences: “Requiring DHS to serve new notices to appear on all noncitizens who received deficient notices to appear, rather than allowing for subsequent notices of hearing, is a windfall for noncitizens and unnecessarily interferes with Congress’s intent.”

Conclusion

The Ninth Circuit’s decision in Lopez has immediate and potentially long-term consequences that will bear watching.

The immediate effect of the decision is that within the jurisdiction of the Ninth Circuit, the stop-time rule is only triggered by a Notice to Appear when the Notice to Appear itself contains all of the information set forth in 239(a) — namely, the time-and-place of the initial removal hearing. Although the Ninth Circuit is only one of the twelve federal circuit courts having territorial jurisdiction, its jurisdiction is vast, encompassing many more people and, importantly, noncitizens, than any of the other circuits. You may see the states and territories affected by Lopez in our article on circuit court jurisdiction [see article].

Outside of the Ninth Circuit, immigration judges will continue to be bound by Matter of Mendoza-Hernandez and Capula-Cortes. Under the rule of the Board, the stop-time rule can be triggered upon receipt of the Notice of Hearing — specifying the time and date of the initial removal hearing — subsequent to the issuance of a defective Notice to Appear.

The issue of Pereira’s applicability to the viability of the two-step notice process for triggering the stop-time rule is likely to continue being litigated. It is notable, in this regard, that both the Board’s decision in Matter of Mendoza-Hernandez and Capula-Cortes and the Ninth Circuit’s decision in Lopez drew sharp dissents with very different readings of Pereira. These disagreements evince that the two-step notice process remains more of an open question in the aftermath of Pereira than whether a deficient Notice to Appear vests jurisdiction in the immigration court, to which the Board [see article] and every circuit — including the Ninth — that has considered the issue have concluded that it can.

Going forward, it will bear watching how other circuit courts weigh in on the two-step process over time. If at least one other circuit sides with the Board over the Ninth Circuit, the Supreme Court may feel it necessary to intervene to resolve the circuit split — just as it did in granting certiorari to hear Pereira itself [see article]. If a number of circuits reject the Board’s precedent and side with the Ninth Circuit, the Board or the Attorney General may eventually be compelled to reassess Matter of Mendoza-Hernandez and Capula-Cortes. Regarding the other circuits, it will be important to examine how the other circuits besides the Ninth with pre-Pereira precedent endorsing the two-step process — such as the Third, Fifth, Seventh, and Eighth Circuits — view those precedents in light of Pereira.

For the time being, Lopez only affects cases arising in the jurisdiction of the Ninth Circuit. In certain cases, the decision may be the difference between an alien being eligible for consideration for cancellation of removal or statutorily ineligible. The Board’s unfavorable precedent will continue to govern immigration proceedings outside of the Ninth Circuit. Any alien facing removal proceedings should consult with an experienced immigration attorney immediately for case-specific guidance. Lopez only highlights how important it is to have an attorney who is up-to-date on important changes in the law that may affect individual cases.