Matter of Miranda-Cordiero: Rescission of In Absentia Order/Termination Unnecessary When Alien Fails to Provide Address for NOH

Motion to reopen in absentia, myattorneyusa.com

 

Introduction: Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019)

On May 22, 2019, the Board of Immigration Appeals issued a published decision in the Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019) [PDF version]. The Board held that under section 240(b)(5)(B) of the Immigration and Nationality Act (INA), in cases where an alien is served with a notice to appear lacking the time and place of the initial removal hearing and the alien fails to provide an address where the notice of hearing containing such information can subsequently be sent, “neither rescission of an in absentia order of removal nor termination of the [removal] proceedings is required…”

The instant decision distinguishes the 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 a deficient notice to appear, lacking the time and/or place of the alien's initial removal hearing, does not trigger the “stop-time” rule for the accrual of continuous physical presence for cancellation of removal eligibility. Matter of Miranda-Cordiero was issued on the same day as Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019) [PDF version], wherein the Board held that neither rescission of an in absentia removal order nor termination of removal proceedings is necessary in cases in which an alien is issued a deficient notice to appear followed by a notice of hearing which includes the time and place of the alien's initial removal hearing.

In this article, we will examine the Board's decision in Matter of Miranda-Cordiero. Please also see our article on its sister decision, Matter of Pena-Mejia [see article]. We discuss the Supreme Court's decision in Pereira — which prompted the arguments in both Pena-Mejia and Miranda-Cordiero, in a separate post [see article]. Please see our article index on Pereira and related administrative and judicial decisions to learn about all of these issues in their full context [see index]. We discuss removal and deportation defense generally in our website's growing section on the subject [see category].

Factual and Procedural History: 27 I&N Dec. 551, 551-52

The respondent, a native and citizen of Brazil, entered the United States in 2005 without having been admitted or paroled. She was personally served with a Notice to Appear at the time she entered. The Notice to Appear ordered her to appear for a removal hearing at the San Antonio Immigration Court at a time and place to be set. The respondent refused to provide an address at which she could be contacted during her removal proceedings despite being informed that she was required to do so. The respondent then failed to appear at her initial removal hearing on May 11, 2005, and she was ordered removed in absentia under section 240(b)(5) of the Immigration and Nationality Act (INA).

On July 5, 2017, the respondent filed a motion requesting the IJ to sua sponte (on its own motion) reopen her removal proceedings to allow her to file a Form I-601A, Application for Provisional Unlawful Presence Waiver [see article] based on an approved family-sponsored immigrant visa petition of which she was the beneficiary. The Immigration Judge denied the respondent's motion for lack of jurisdiction, finding that she could seek the provisional unlawful presence waiver from the United States Citizenship and Immigration Services (USCIS) instead. He also held that the respondent had failed to describe any exceptional circumstances that would have warranted sua sponte reopening. The respondent appealed to the BIA.

Issues Raised on Appeal: 27 I&N Dec. 551, 552

The respondent raised two arguments on appeal to the BIA.

Firstly, the respondent argued that the Immigration Judge erred in stating that a provisional unlawful presence waiver was available to her despite her outstanding in absentia removal order. The respondent also argued that the Immigration Judge did not provide any evidence in support of his conclusion that she had not presented exceptional circumstances warranting sua sponte reopening of the removal proceedings.

Secondly, the respondent relied on Pereira to argue that the notice to appear issued to her in 2005 was invalid because it did not include the specific date and time of her initial removal hearing. As a consequence, she argued that were her removal proceedings to be reopened under Pereira, she would be eligible for cancellation of removal under section 240A(b)(1) of the INA.

Board Rejects Pereira-Based Argument: 27 I&N Dec. 551, 552-54

The Board explained that in Pereira, the Supreme Court focused on the issue of whether or when a putative notice to appear that lacks the time and/or date of the initial removal hearing triggers the stop-time rule for cancellation of removal under section 240A(d)(1)(A) of the INA. The Court notably did not address similarly deficient notices to appear in other contexts, such as for the initiation of removal proceedings. For example, in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) [PDF version], the Board held that a deficient notice to appear is sufficient for vesting an Immigration Judge with jurisdiction over the removal proceedings, provided that a notice of hearing containing the missing information is subsequently sent to the alien [see article].

Regarding the vesting of jurisdiction in the Immigration Judge, regulations found at 8 C.F.R. 1003.14(a) provide that “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court.” 8 C.F.R. 1003.15(c) provides that the notice to appear must contain certain information. The date and time of the alien's initial removal hearing are not specified in 8 C.F.R. 1003.15(c). Moreover, that same regulatory provision states that the failure of the notice to appear to specify any of the items that are listed “shall not be construed as affording the alien any substantive or procedural rights.”

The Board then moved to explain why Pereira did not necessitate the rescission of the respondent's in absentia removal order in the instant matter. It began by explaining how the statutes at issue in Pereira are distinguishable from those governing in absentia removal orders. Section 240(b)(5)(A) provides that “[a]ny alien who, after written notice required under paragraph (1) or (2) of section 239(a) [of the INA] has been provided to the alien or the alien's counsel of record, does not attend a proceeding under this section” may be ordered removed in absentia (emphasis added by the BIA). The Board found the use of the disjunctive term “or” to be significant — “an in absentia order of removal may be entered if a written notice containing the time and place of the hearing was provided either in a notice to appear under section 239(a)(1) or in a subsequent notice of the time and place of the hearing pursuant to section 239(a)(2).”

In the instant case, the respondent was personally served with the notice to appear but she then refused to provide an address to which the Immigration Court could send her a notice of date and time of the hearing. The Board explained that she was advised of her obligation to notify the Immigration Court immediately if her address changed, in accordance with section 239(a)(1)(F) of the INA.

Section 240(b)(5)(B) covers cases in which an alien fails to provide an address to the Immigration Court as required under section 239(a)(1)(F). In such cases, “no written notice of the hearing is necessary to order the alien removed in absentia under section 240(b)(5)(A), which, as noted, permits notice under section 239(a)(1) or (2).” Thus, because the respondent was personally served with the notice to appear but, despite being advised of the legal requirement, refused to provide an address at which she could be advised of the time and date of the initial removal hearing in the form of a notice of hearing, the Board concluded that “in absentia proceedings were appropriate.”

The Board contrasted the situation of the respondent in the instant matter with that of the alien in Pereira. In Pereira, the alien had in fact provided his correct address after receiving a deficient notice to appear and then established that he did not receive a notice of hearing. In addition to that factual difference, the Board noted that the alien in Pereira sought cancellation of removal whereas the respondent in the instant case was ordered removed for reasons having nothing to do with the stop-time rule in Pereira.

The Board found that its conclusion was supported by several post-Pereira Federal circuit court precedents. The United States Court of Appeals for the Fifth Circuit, in whose jurisdiction [see article] the instant matter arose, held in Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 (5th Cir. 2018) [PDF version], that the Board did not err in declining to reopen or rescind an in absentia removal order after the alien did not receive a notice of hearing on account of his failure to provide a correct address to the Immigration Court. Like the Board in the instant matter, the Fifth Circuit read Pereira narrowly as not extending far beyond the matter that was actually before the Supreme Court regarding the stop-time rule. The United States Court of Appeals for the Sixth Circuit reached a similar result in Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019) [PDF version], concluding that Pereira dealt with a narrow question rather than with jurisdictional prerequisites, and that there was no grounds for rescinding an in absentia removal order when the notice of hearing was mailed to him to the address he had provided in accord with section 239(a)(2) of the INA.

For these reasons, the Board held that rescission of the respondent's in absentia removal order was not warranted under Pereira.

Board Upholds Denial of Motion to Reopen Sua Sponte: 27 I&N Dec. 551, 554-55

The Board noted that “[w]hether proceedings should be reopened sua sponte is a discretionary determination to be made on the totality of circumstances presented in each case.” In the instant case, the respondent argued that her U.S. citizen family members would suffer extreme hardship upon her removal to Brazil. It noted that she was the beneficiary of an approved family-based immigrant visa petition filed by her husband. After reviewing de novo (from the beginning), the Board agreed with the Immigration Judge that the respondent's case did not warrant the favorable exercise of discretion to reopen sua sponte, regardless of whether such reopening was necessary in order for the respondent to pursue a provisional unlawful presence waiver. Accordingly, the Board dismissed the respondent's appeal on this issue as well.

Conclusion

Matter of Miranda-Cordiero, along with its companion decision in Matter of Pena-Mejia, combine to interpret the Supreme Court's Pereira decision narrowly. Under Miranda-Cordiero, an alien who failed to provide his or her address after being served with a notice to appear that did not specify the time and/or place of his or her initial removal hearing is not entitled to the rescission of an in absentia removal order. The Board reached this result after concluding that in absentia removal proceedings are appropriate after jurisdiction has vested in the Immigration Court and the alien fails to provide a contact address or fails to update his or her contact address. As it has in several other post-Pereira decisions, the Board read the Supreme Court's precedent as governing the specific issue of when the stop-time triggers on account of the issuance of a notice to appear.

In addition to further clarifying the Board's post-Pereira jurisprudence on notices to appear, Miranda-Cordiero highlights the importance of providing a correct address to the Immigration Court upon the commencement of removal proceedings. The failure to do so may lead to the alien being ordered removed in absentia without having the opportunity to contest the underlying charges or to make a case for relief or protection from removal. An alien facing removal proceedings should consult with an experienced immigration attorney immediately.