On May 22, 2019, the Board of Immigration Appeals (BIA or Board), continuing with its current post-Pereira post-Bermudez-Cota line of cases, dismissed the appeal of a respondent from an Immigration Judge’s (IJ’s) denial of her motion to sua sponte reopen proceedings. When appellant had entered the U.S. without inspection, she had been served with a Notice to Appear (NTA) ordering her to appear for an Immigration Court hearing in San Antonio, Texas at a date and time to be set. She refused to provide an address where she could be contacted, did not appear at her hearing, and was ordered removed in absentia by the IJ.
Respondent subsequently filed a motion requesting ‘sua sponte’ reopening to rescind her removal order so she could file a form I-601A provisional waiver application based on her approved I-130 visa petition, filed on her behalf by her U.S. citizen husband. The motion was denied by the IJ on the grounds that he lacked jurisdiction over the waiver, which she could seek from USCIS, and that respondent had not alleged exceptional circumstances warranting ‘sua sponte’ reopening. On appeal, respondent argued that the IJ erred in finding she was eligible for a provisional waiver of unlawful presence despite her in absentia removal order and in providing no analysis in holding she had not presented exceptional circumstances. She also relied on the intervening U.S. Supreme Court decision in Pereira v. Sessions, 138 S,Ct.2105 (2018), claiming her NTA was invalid “because it did not contain a specific date and time for her initial removal hearing,”as required by INA §240A(b)(1).
The BIA first addressed respondent’s Pereira argument, stating that in that case the Supreme Court had focused on whether the service of an NTA missing the time and place information triggers the “stop-time” rule of §240A(d)(1)(A) for purposes of cancellation of removal; the Board took the position that Pereira “did not hold that such a deficient [NTA] is invalid for all purposes, including for initiating removal proceedings.” Further, noted the opinion, while the applicable regulations provide that jurisdiction vests with the filing of an NTA with the Immigration Court, they do not require that date and time information be included in the notice. Additionally, the regulations note that failure to provide any of the data that is therein required “shall not be construed as affording the [respondent] any substantive or procedural rights.”
The BIA also stated that rescission of respondent’s in absentia removal order “is not mandated by Pereira”, noting that the statute concerning the entry of such an order provides that anyone who, after written notice required under §239(a)(1) or (a)(z) has been provided, does not attend a proceeding may be ordered removed; as the disjunctive “or” is used, the Board echoed its reasoning in Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019) and held that an in absentia removal order may be entered “if a written notice containing the time and place of the hearing was provided” either by NTA [§239(a)(1)] or by a subsequent hearing notice [§239(a)(2)].
The opinion went on to find that, under INA §(b)(5)(B), if one fails to provide an address to DHS, “no written notice of the hearing is necessary” to issue an in absentia removal order. As respondent refused to provide an address after being advised of her obligation to do so in the NTA, “notice of the time and place of her hearing was not required under either section of the statute,” so the in absentia order was proper. The BIA also concluded that because the applicant in Pereira provided his correct address and applied for cancellation, that case is distinguishable from the instant matter and does not require rescission of respondent’s removal order or termination of her proceedings.
Lastly, the Board noted that whether proceedings should be reopened sua sponte “is a discretionary determination to be made based on the totality of circumstances presented in each case.” Despite respondent’s contention that her U.S. citizen family will suffer extreme hardship upon her removal, and her acknowledged supporting evidence, the Board held that under de novo review, her case “does not present an exceptional situation that warrants the exercise of discretion” to reopen sua sponte, despite the availability of an I-601A waiver. As such, the appeal was dismissed. Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019).
