BIA Holds That A Respondent Receives Sufficient Written Notice To Support The Entry Of An In Absentia Order Of Removal, Even If He Or She Was Served With A Noncompliant Notice To Appear That Did Not Specify The Time Or Place Of The Hearing, Where The Respondent Was Properly Served With A Statutorily Compliant Notice Of Hearing Specifying This Information. Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) Distinguished. Matter Of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019), And Matter Of Miranda-Cordiero, 27 I&N Dec. 557 (BIA 2019), Reaffirmed.
On January 18, 2022, the Board of Immigration Appeals (BIA or Board) denied Respondent’s motion to reopen and terminate his removal proceedings or, alternatively, to reopen and rescind the in absentia removal order entered against him, based on the U.S. Supreme Court’s decisions in Pereia v. Sessions, 138 S.Ct. 2105 and Niz-Chavez v Garland, 141 S.Ct. 1474 (2021); the BIA had concluded that these cases “do not alter the validity of the in absentia removal order” entered against Respondent even though he was served with a Notice to Appear (NTA) that did not specify the time or place of the hearing at which he was ordered removed in absentia because he was later served with a notice of hearing that specified this information, as well as the consequences of failing to appear at the hearing. These documents, held the Board, vested the Immigrant Judge (IJ) with jurisdiction over the proceedings, supplied Respondent with sufficient notice of the time and place of the hearing and informed him that he could be removed in absentia if he failed to appear.
Respondent entered the U.S. without inspection and was personally served with an NTA ordering him to appear before an IJ at a date and time to be set. A little less than two years later, the Immigration Court sent him a notice of hearing to the address he provided, notifying him as to where and when the initial hearing would occur and of the consequences of failing to appear. When Respondent did not attend this hearing, the IJ ordered him removed in absentia.
Citing Pereira, Respondent moved to reopen and terminate proceedings on the grounds that the IJ had no jurisdiction because his NTA lacked the date and time information; the IJ denied the motion based on the BIA’s precedent, Matter of Bermudez- Cota, 27 I&N Dec. 441 (BIA 2018, which distinguished Pereira and held that an NTA that does not give the time and place of a hearing still vests the IJ with jurisdiction over the proceedings and meets the requirements of INA §239(a), so long as a notice of hearing specifying this information is later served. Respondent’s appeal was dismissed by the Board. This Motion to terminate relied on Niz-Chavez to again argue that his NTA failed to vest the IJ with jurisdiction. Additionally, Respondent contends that the absentia order must be rescinded because he was not served with “written notice” of his hearing, as required by INA §240(b)(5)(A).
In discussing the case’s legal background, the BIA explained that the noncitizen in Pereira had been issued an NTA missing the date and time of the hearing and the hearing notice “containing this information was sent to the wrong address,” so that respondent did not attend and was ordered removed in absentia. As a result, the order was rescinded and proceedings reinstated. In reopening proceedings, relying on Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011) (which was abrogated by Pereira 7 years after issuance), the IJ ruled that the NTA’s service had triggered the so-called “stop-time” rule of INA §240A(d)(1)(A), ending that respondent’s accrual of continuous residence and physical presence in the U.S. for the purpose of §240A cancellation of removal. Camarillo held that the service of an NTA triggers the “stop-time” rule, even if it’s lacking the date and time information.
Subsequently, the Supreme Court, in Pereira held that a non-compliant NTA that omits the required information, is not an NTA under §239(a) and cannot trigger the “stop-time” rule; the Court left open whether a statutorily compliant notice of hearing could cure a deficient NTA by “separately providing the required time and place information and triggering the ‘stop-time’ rule”. The Board then issued Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), which distinguished Pereira, holding that a non-compliant NTA vests the Immigration Court with jurisdiction over a case and thus Pereira does not require termination, “so long as a noncitizen was later served with a notice of hearing that complies with the requirements of section 239(a)(2) and specifies the time and place of the removal hearing.”
Further, regarding in absentia orders, the BIA held in Matter of Pena-Mejia, 27 I&N Dec.546 (BIA 2019) that an IJ may enter such an order of removal “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 hearing specifying] the time and place of the hearing pursuant to section 239(a)(2).” The opinion next noted that Pereira had left open the question of whether a compliant hearing notice can cure a noncompliant NTA by separately providing the time and place data and thus triggering the “stop-time” rule; the Board answered this question affirmatively in Matter of Mendoza-Hernandez and Capula-Cortes 27 I&N Dec. 408 (BIA 2021), ruling that where an NTA omits the specific time and place of a removal hearing, service of a hearing notice containing their information “perfects” the deficient NTA and “ends the…period of continuous residence of physical presence” per the “stop-time” rule.
The decision also explained that in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), the BIA held-consistent with every circuit court of appeals that had spoken to the issue – that Niz-Chavez did not affect the holdings of Bermudez-Cota and Rosales Vargas and Rosales Rosales that a non-compliant NTA vests jurisdiction with the IJ so long as respondent is later served with a compliant hearing notice and thus followed the conclusions of those decisions.
In its analysis, the Board first addressed Respondent’s argument that proceedings should be terminated due to lack of jurisdiction, stating that after he was served with a noncompliant NTA, Respondent had been served with a compliant hearing notice; Arambula-Bravo thus foreclosed that contention, the court had jurisdiction, and neither Pereira nor Niz-Chavez required termination. The motion to terminate was therefore denied.
The sole remaining issue was whether the in absentia order should be rescinded because Respondent did not receive sufficient notice. The opinion noted that the BIA had already held that such an order may be entered and need not be rescinded if a written notice containing the time and place of the hearing was provided either in an NTA under §239(a)(2), citing to Matter of Pena-Mejia 27 I&N Dec. 546 (BIA 2019). Respondent argued, however, that his in absentia order should be rescinded because he did not receive sufficient notice under §§240(b)(5)(A) and (C)(ii), even though he received a compliant hearing notice; the Board disagreed, reaffirming Pena-Mejia and its progeny, Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019).
Addressing Niz-Chavez, the opinion first noted that the Supreme Court had held in that case that Congress meant the “stop-time” rule to be triggered by a single document, i.e., an NTA specifying all the information required by §239(a)(1), including the time and place of the removal hearing. Yet, concluded the BIA, in contrast to Niz-Chavez, the provisions at issue here mandate the entry of an in absentia order of removal in certain cases where a respondent fails to appear after the written notice required by §239(a)(1) or (2) had been provided. The decision found that, unlike the “stop-time” rule at §240A(d)(1), §§240(b)(5)(A) and ( C)(ii) do not use the terms “written notice” or “notice” to describe “a discrete act of notice coming in the form of a single document,” i.e., an NTA. Accordingly, an in absentia order may be entered and need not be rescinded if a written notice with the time and place of the hearing was provided either via NTA under §239(a)(1) or via a subsequent notice of the time and place under §239(a)(2).
Put another way, “a respondent may be ordered removed in absentia if he or she receives a statutorily compliant notice to appear under section 239(a)(1) specifying the time and place of the hearing at which he or she may be ordered removed and the consequences of failing to appear for that hearing. However, once it had been shown that a respondent had been properly served with a statutory compliant notice of hearing under section 239(a)(2), notifying him or her of this information, the respondent has received sufficient ‘written notice’ to trigger the in absentia provision at section 240(b)(5)(A), even in the absence of a statutorily compliant notice to appear.”
The BIA, therefore, held that Respondent had received sufficient “written notice” to support the entry of an in absentia order per §240(b)(5)(A) and that order need not be rescinded for lack of “notice” per §240(b)(5)(C)(ii) because, even though he was served with a noncompliant NTA, he was “properly served with a statutorily compliant notice of hearing” per §239(a)(2) specifying the time and place of the hearing. Accordingly, the motion to reopen and rescind the in absentia removal order was denied.
Further, concluded the Board, the overall statutory context and regulatory history of the sections referenced here supports its conclusion that following the enactment of §§239(a)(1) and (2) and 240(b)(5)(A) and (C )(ii), either DHS or the Immigration Court may schedule an initial removal hearing and notify a respondent of the time and place of that hearing and the consequences of failing to appear, through either an NTA or a hearing notice.
Lastly, the BIA recognized that the Fifth Circuit had recently issued a discussion reaching a contrary conclusion, but that case “does not apply here,” as the instant case arises in the First Circuit. The motions to terminate and to reopen and rescind were denied. Matter of Laparra-DeLeon, 28 I&N Dec. 425 (BIA 2022).
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