On May 22, 2019, the Board of Immigration Appeals (BIA or Board), following up on its recent precedential jurisprudence concerning the effects of the issuance of a Notice to Appear (NTA) that lacks the time and place of the next removal hearing, but is subsequently followed by an Immigration Court notice of hearing with that data, stayed the course in concluding that, in such a situation, if the respondent does not appear and an in absentia order of removal is issued by the Immigration Judge (IJ), the court need not rescind the order or terminate proceedings.
In the instant case, when respondent had entered the U.S. without inspection, she had been served with an NTA where the date and time information for proceedings in Harlingen, Texas where still to be set. Approximately one month later, the Immigration Court sent her a hearing notice scheduling the date and time of her next hearing; she did not appear and was ordered removed in absentia.
Respondent filed a motion to reopen and rescind the in absentia order with the IJ, stating that she had not received a hearing notice. The court found that the mailed notice was properly served, and not returned by USPS as undeliverable, and that the presumption of delivery had not been rebutted. The IJ thus concluded respondent had not established nonreceipt and denied the motion. The BIA also upheld the IJ’s findings and dismissed respondent’s subsequent appeal. Respondent then filed a motion to reopen and terminate proceedings under Pereira v. Sessions, 138 S. Ct. 2105 (2018) because her NTA did not specify the date and time of her hearing. As such, argued the motion, the NTA was invalid so jurisdiction over her case never vested with the IJ.
The Board initially stated that Pereira had focused on the “narrow” question of whether on NTA lacking the time and place information triggers the “stop-time” rule for purpose of cancellation of removal under INA§ 240A (d)(1)(A). It then noted that, in its precedent decision of Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), the BIA had held that a “two-step notice process,” wherein an in insufficient NTA still vests jurisdiction in the IJ if a hearing notice with the missing information is subsequently sent to the respondent, is allowable. Such a process, Bermudez-Cota held, “is sufficient to meet the statutory notice requirements” of INA§239(a).
The Board then discussed the applicable regulations at 8 C.F.R. §1003.14(a) and 1003.15(c), the former providing that jurisdiction vests and proceedings commence with the filing of an NTA with the court, while the latter requires that an NTA provide certain data, but does not specifically mention the date and time of the next hearing. Additionally, noted the decision, this regulation states that “failure to provide any of the enumerated items” does not afford a respondent any substantive or procedural rights. Therefore, the BIA concluded, the NTA served on respondent and filed with the court “satisfied the regulatory definition of a ‘notice to appear’ and vested jurisdiction in the Immigration Court”; Pereira, found the opinion, “does not change this outcome.”
The decision also found that, rescission of the in absentia removal order is not mandated by Pereira because, unlike the provisions at issue in that case, the statue regarding the entry of in absentia orders provides that anyone who (or whose attorney) receives the “written notice required under paragraph (1) or (2) of section 239(a)” and then fails to appear at the noticed proceedings,” may be ordered removed in absentia. [Italics in original.] Because the statute uses the disjunctive “or”, concluded the Board, an in absentia order may be entered if “a written notice containing the time and place of the hearing was provided,” either in an NTA or a subsequent hearing notice from the court. Here, because a hearing notice was mailed to respondent after personal service of the NTA, her case falls within the parameters of Bermudez-Cota as to “the fundamental question” of the court’s jurisdiction. Further, concluded the Board], the instant case is distinguishable from Pereira as respondent did not apply for cancellation and was ordered removed “for reasons unrelated to the operation of the ‘stop-time’ rule”. Thus, held the BIA, Pereira does not require that the in absentia order be rescinded or that proceedings be terminated.
In summation, the Board hewed to its current post-Pereira rationale, finding that the Supreme Court in that case rested its ruling on the “specific language” of the “stop-time” rule in §240A(d)(1), while respondent’s case is governed by the rules concerning failures to appear and the applicable regulations. Here, the BIA specifically agreed “with the circuit courts that have held that Pereira is inapplicable outside of the narrow context” of the cancellation of removal criteria and with the IJ that respondent received proper notice. Rescission, termination, and reopening were therefore unwarranted and the motion was denied. Matter of Pena-Mejia, 27 I&J Dec. 546 (BIA 2019).
