In a divided decision, the first en banc decision in ten years, the Board of Immigration Appeals, or BIA, on May 1 issued Matter of Mendoza-Hernandez & Capula-Cortes, 27 I&N Dec. 520 (BIA 2019). In the decision, the nine-member majority held that a deficient notice to appear, or NTA, that does not provide the time and place of the initial immigration court hearing is “perfected” when the immigration court subsequently sends a hearing notice containing that information. According to the majority, this two-step process triggers the NTA “stop-time” rule for determining eligibility for cancellation of removal under the Immigration and Nationality Act, or INA, § 240A(d)(1)(A). To establish eligibility for cancellation of removal for nonpermanent residents, the applicant must meet a number of requirements, including showing physical presence in the United States for a continuous period of not less than 10 years. That period ends upon service of “a notice to appear under [INA § 239(a)].” In the decision, the BIA majority distinguished and narrowly interpreted the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), which held that a putative NTA lacking time or place information does not trigger the “stop-time” rule.
Details of the decision
The respondents, a husband and wife from Mexico, had appealed the immigration judge’s denial of cancellation of removal based on their failure to show 10 years of continuous physical presence before the NTA was served. The NTAs the Department of Homeland Security, or DHS, had issued Mr. Mendoza-Hernandez and Ms. Capula-Cortes lacked information about the hearing’s time or place. While the appeal was pending, the Supreme Court issued Pereira, which held that a putative NTA that does not designate the time or place of the hearing is not a “notice to appear under [INA § 239(a)]” and thus does not trigger the cancellation of removal stop-time rule.
The BIA concluded that when the immigration court later mailed the respondents hearing notices that included the time and place of the hearing, several months after DHS served the NTAs, the hearing notices triggered the stop-time rule. The BIA repeatedly referred to Pereira’s holding as “narrow” and relied on pre-Pereira U.S. Court of Appeals decisions approving a “two-step” process whereby a defective NTA issued by DHS can be cured by a hearing notice issued by the immigration court. The BIA noted that Pereira involved a “distinct set of facts” in which the respondent had not received notice of the time and date of the hearing, had failed to appear, and was ordered removed in absentia. In contrast, Mr. Mendoza-Hernandez and Ms. Capula-Cortes were “properly served” with NTAs and hearing notices, had appeared at all of their hearings, and “had the opportunity to secure counsel and to adequately prepare.” The BIA asserted that the Supreme Court’s Pereira decision “did not address the propriety of the two-part notice process” and that the Pereira holding “does not preclude” a “perfected” NTA or a combination of documents from stopping time.
Six Board members dissented, arguing that Pereira compels the conclusion that the immigration court’s issuance of a hearing notice does not meet the definition of a notice to appear, as that term is used in the cancellation stop-time rule, and that only an NTA with time and place information, not a court hearing notice, can trigger the stop-time rule. The dissenters observed that a notice of hearing is not part of an NTA, and that the two documents are issued by two separate agencies, the former by the immigration court (part of the Executive Office for Immigration Review) and the latter by DHS. The dissent noted that the Supreme Court concluded in Pereira that the stop-time statute was unambiguous, and its reasoning does not leave room for the majority’s view that a hearing notice can stop time. This is because the INA “provides an explicit definition of a section 239(a)(1) ‘notice to appear’ and the ‘stop-time’ rule explicitly refers to that definition,” so “the plain language of the statute controls.”
Impact of decision and tips for practitioners
The BIA’s decision will mean that many individuals who had relied on Pereira to assert eligibility for cancellation will likely be found ineligible by the immigration court and/or the BIA. Advocates may challenge this decision as contravening the Supreme Court’s ruling in Pereira as well as the plain text of the stop-time statute. In fact, the 9th Circuit U.S. Court of Appeals for the Ninth Circuit already rejected Mendoza-Hernandez & Capula-Cortes, in Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019), and held that a defective NTA cannot be cured by a subsequent hearing notice for stop-time purposes. The 9th Circuit criticized the BIA’s decision for “ignor[ing] the plain text of the statute” and “disregard[ing] the Supreme Court’s holding construing the statute in accordance with its plain language.”
The Mendoza-Hernandez & Capula-Cortes decision is not the only BIA ruling attempting to limit the reach of Pereira. In Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), the BIA held that an NTA without time and place information nevertheless vests the immigration judge with jurisdiction over the removal proceedings, as long as a hearing notice with time and place information is later sent. Before Bermudez-Cota, many practitioners had filed motions to terminate based on Pereira, arguing that a putative NTA that fails to designate the time or place of the noncitizen’s removal proceedings cannot vest the immigration court with jurisdiction. Approximately 9,000 removal proceedings were terminated in the months following the Pereira decision. To date, most appeals courts that have considered Bermudez-Cota’s ruling on jurisdiction have agreed with it. However, the 7th Circuit recently held that while a defective NTA does not deprive the immigration court of jurisdiction, it could be grounds for an immigration judge to terminate proceedings if the respondent timely objected or if the untimeliness was excusable and the respondent could show prejudice. Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019).
Two more BIA decisions, both issued on May 22, also have taken a narrow view of Pereira. In Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019), the BIA concluded that Pereira did not require rescission of an in absentia order or termination where the NTA did not contain required time and place information, as long as a subsequent hearing notice with that information was properly sent. In Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019), the BIA likewise ruled that Pereira did not require termination or rescission of an in absentia order, due to an NTA lacking time and place information, if the respondent failed to provide an address where the hearing notice could be sent.
The attorney general has also signaled an intention to make it harder for noncitizens to obtain nonpermanent resident cancellation of removal, certifying to himself questions about the “appropriate legal standard” for nonpermanent resident cancellation’s “good moral character” requirement, and whether individuals with DUI convictions should be able to establish good moral character or be afforded favorable discretion. To date, the attorney general has not issued a decision in that case.
Practitioners representing clients in removal proceedings may wish to consider the following:
- The Supreme Court’s decision in Pereira is binding and holds that if a putative NTA does not specify the hearing time and/or place, it does not stop time for purposes of cancellation of removal. Thus, for example, if the NTA did not contain time and/or place information, and the client was not served a hearing notice until after he or she had 10 years of continuous physical presence, he or she should not have a stop-time problem, even after Mendoza-Hernandez & Capula-Cortes. Similarly, practitioners could argue that defective or improper service cannot stop time. See INA § 240A(d)(1)(A) (time stops when a noncitizen “is served a notice to appear” (emphasis added)).
- In cases outside the 9th Circuit, which has already rejected Mendoza-Hernandez & Capula-Cortes, practitioners should argue that the BIA decision was wrongly decided and preserve the challenge for appeal and an eventual petition for review. Practitioners could use the dissent as a guide for crafting arguments about the plain language of the statute and the Supreme Court’s holding in Pereira to argue that clients should continue to accrue continuous physical presence until served with an NTA that meets the statutory requirements.
Practitioners should also consider making Pereira-based arguments in other contexts when they benefit the client, e.g., in seeking termination, rescission of an in absentia order, or post conclusion voluntary departure. While some of these arguments are foreclosed by other BIA decisions discussed above, practitioners could preserve legal challenges for federal court review where it is in the client’s interest to do so. For more information and practice tips for litigating Pereira issues, see CLINIC and American Immigration Council’s practice advisory “Strategies and Considerations in the Wake of Pereira v. Sessions” and CLINIC’s article on Bermudez-Cota.