On August 30, 2018, the Board of Immigration Appeals (BIA or Board) dismissed both an appeal and a motion to terminate in a case where the Immigration Judge (IJ) had denied respondent’s requests for a continuance and administrative closure, but granted voluntary departure. While respondent’s appeal was pending with the BIA, he filed a motion to terminate proceedings; DHS opposed both the appeal and the motion.
Respondent sought dismissal per Pereira v. Sessions, 138 S. Ct. 2105 (2018), the U.S. Supreme Court decision the Board framed as having merely stated that it’s “narrow” and “dispositive question” was whether a notice to appear (NTA) “that does not specify the ‘time and place at which the proceedings will be held’…trigger[s] the stop-time rule.” Respondent argued that his NTA’s failure to include this information rendered it defective not just vis-a-via the stop-time rule, but for all purposes. This claim, found the BIA, was “misguided”.Pereirahad involved a distinct set of facts, concluded the opinion and, unlike the appellant there, respondent had been properly served with both an NTA and a subsequent notice of hearing containing the missing information. Further distinguishing the two cases, the BIA noted that respondent here is not seeking cancellation of removal and, thus, the stop-time rule “is not at issue”. Significantly, stated the decision, the Supreme Court did not purport to invalidate the underlying removal proceedings or suggest they should be terminated, repeating this holding several times.
The Board also noted that terminating proceedings where service was proper under 8 C.F.R.§1003.18(b) would require that it disregard a regulation it is “compelled to follow”. Additionally, the Ninth Circuit Court of Appeals, in whose jurisdiction respondent’s case arose, had previously “rejected arguments similar to those of the respondent,” citing to Popa v. Holder, 571 F.3d 890 (9THCir. 2009); per the BIA, the Fifth, Seventh, and Eighth Circuits had all agreed that an NTA need not specify the time and place of an initial removal hearing “so long as a notice of hearing specifying this information is later sent” by the Immigration Court.
As to the appeal, respondent challenged the IJ’s denial of his requests for administrative closure and a continuance, but the Board held that his arguments as to administrative closure have been foreclosed by the Attorney General’s recent decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). As to the continuance, the BIA agreed with the IJ that respondent has not shown the required good cause, as the case has already been continued once, respondent had not proven eligibility for relief from removal, and “it is speculative that he will become eligible for adjustment of status in the future”. On top of the dismissal of the appeal and motion, respondent was permitted by the Board to voluntarily depart the U.S., at no Government expense, within 60 days of the date of this order and, if he failed to so depart he will be subject to civil penalties and ineligible for 10 years for almost all further immigration relief. Respondent was lastly warned that filing a motion to reopen or reconsider prior to the expiration of the voluntary departure period or any judicial challenge to this order prior to departing the U.S. could have potential negative effects on his ability to depart voluntarily. Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018).
