BIA Holds That Pereira v. Sessions, 138 S. Ct. 2105 (2018) And Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) Are Inapplicable To Proceedings Initiated By A Notice To Applicant For Admission Detained For Hearing Before Immigration Judge (Form I-122) And Other Charging Documents Issued Prior To The Effective Date Of The Illegal Immigration Reform And Immigration Responsibility Act Of 1996 (IIRAIRA). Matter Of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), Followed.
On February 10, 2023, the Board of Immigration Appeals (BIA or Board) denied a motion to reopen in a matter that had last been before the tribunal in 2004. Respondent had been placed into exclusion proceedings by a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge (Form I-122) in 1995. The Form I-122 listed the address and date of the hearing as “to be calendared”. In his motion, Respondent contended that proceedings should be reopened under Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), as the I-122 did not include the date and time of the initial hearing and he should be allowed to apply for cancellation of removal under INA § 240A(b)(1).
Initially, the BIA noted that Respondent had been in exclusion proceedings via the I-122, not removal proceedings through the issuance of a notice to appear (NTA). Additionally, until April 1, 1977, inspection at U.S. ports of entry was governed by former INA § 235 and exclusion proceedings by former INA § 236; neither statute nor the applicable regulations required that a Form I-122 include the time and place of the initial hearing.
Further, pointed out the decision, after the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), “removal proceedings became the sole and exclusive procedure for determining admissibility and removability.” Significantly, IIRAIRA specified that removal proceedings would be initiated by an NTA, which was to be given to a respondent listing “the time and place at which the proceedings will be held.” INA § 239(a).
Yet, explained the BIA, INA § 239(a) governs only NTAs, not pre-IIRAIRA charging documents. As such, the Board had previously held in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), that Pereira does not apply to the broader category of “charging documents”, which includes forms like the I-122. Additionally, Niz-Chavez distinguished the order to show cause (OSC) from the NTA by pointing out former INA § 242B(a)(2)(A) “expressly authorized the government to specify the place and time for a hearing ‘in the order to show cause or otherwise’ but ‘IIRAIRA changed all that’.”
A Form I-122 is similarly distinguishable from an NTA, concluded the BIA: while pre-IIRAIRA statutes governing exclusion proceedings lacked the “or otherwise” authorization of § 242B(a)(2)(A), those statues were also without “the affirmative time-and-place language of today’s” INA § 239(a). Pereira and Niz-Chavez held that time-and-place data must be included in an NTA for it to trigger the “stop-time rule”. Accordingly, held the Board, Pereira and Niz-Chavez are inapplicable to proceedings initiated by pre-IIRAIRA charging documents like an I-122.
Because the Pereira and Niz-Chavez holdings did not apply to Respondent, he could not show a change in law making him prima facie eligible for cancellation of removal. Similarly, found the decision, he was ineligible for cancellation “because he was placed in exclusion proceedings, not removal proceedings.” Citing Arambula-Bravo the Board held that, as Niz-Chavez only applied to the stop-time role in the context of cancellation of removal, “it has no bearing on an applicant’s eligibility for forms of relief available in exclusion or deportation proceedings.”
Respondent’s motion to reopen was thus denied because he had not presented a relevant change of law and the BIA did not need to consider whether an exceptional situation existed that warranted sua sponte reopening. Matter of J-L-L-, 28 I&N Dec. 684 (BIA 2023).
