On May 1, 2018, the Board of Immigration Appeals (BIA or Board), in an important en banc decision, held 9-6 that a defective Notice To Appear (NTA) that does not contain the time and place of one’s Master Calendar Hearing is “perfected” by the subsequent service of a Notice of Hearing containing that information, which satisfies that notice requirements of INA §239(a)(1) and triggers the “stop-time” rule of INA §240A(d)(1)(A). A lengthy, and vigorous, dissent urged that the service a Notice of Hearing by the Immigration Court does not meet the definition of an NTA under §239(a)(1) and thus would not trigger the “stop-time” rule when a DHS NTA fails to specify the time of the initial removal proceedings.
In the instant case, an Immigrant Judge (IJ) had found respondents removable under INA §212(a)(6)(A)(i) for being present in the U.S. without having been admitted or paroled. She also denied their applications for cancellation of removal under INA §240A (b)(1), finding they lacked the requisite continuous physical presence. Respondents appealed, claiming they could establish physical presence under Pereira v. Sessions, 138 S.Ct. 2105 (2018).
Respondents had been served with NTAs that did not specify the time of place of the initial removal proceeding. DHS subsequently mailed notices of hearing to the respondents, scheduling the Master Calendar Hearing for January 2011 in Miami. Respondents and their attorney appeared at this and several subsequent hearings. In her decision denying cancellation, the IJ found respondents had submitted documentary evidence of physical presence since 2005, but not from as far back as October 2000. In September 2017, respondents filed a motion to respond with the court, seeking to submit additional evidence regarding their physical presence prior to 2005 and filed a notice of appeal with the BIA shortly thereafter.
While the appeal was pending, respondents filed a motion to remand with the Board based on Pereira, wherein the U.S. Supreme Court had held that an NTA that does not specify the time and place of a respondent’s removal proceedings does not qualify as a “notice to appear” under INA §239(a) and therefore does not trigger the stop-time rule. In the supplemental briefing requested by the Board, respondents contended that the subsequent service of a hearing notice specifying the date and place of the next hearing did not trigger the “stop-time” rule because jurisdiction had never vested with the Immigration Court. Because subject matter jurisdiction cannot be waived by their personal appearance in court, respondents further argued that their continuous physical presence would continue to accrue until DHS issued NTAs with the time and place of the next removal hearing.
The BIA framed the issue as whether the “stop-time” rule, which provides for termination of continuous residence and physical presence in the U.S., is triggered when one who is served with an NTA that did not specify the time and place of the initial hearing is subsequently served with a notice of hearing that includes that essential information.
In its initial analysis, the Board concluded that “respondents’ jurisdictional arguments are foreclosed by Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018),” the precedent decision that held that an NTA that lacks the “essential information” still vests’ the IJ with jurisdiction over the proceedings and meets the requirements of§239(a) as long as a notice of hearing with this information is later sent to the respondent. Because, here, respondents “were properly served with notices of hearing providing time and place information,” and they attended all their hearings, there was no jurisdictional defect in their cases that warranted termination or remand.
As to the case law regarding the “stop-time” rule, the opinion cited to Matter of Camarillo, 25 I&N Dec. 644, 645 (BIA 2011), which found that the relevant statutory language at INA §240A(d)(1)(A) is ambiguous and that the competing readings of the ‘statute’ are equally plausible; yet ,the BIA agreed with DHS’ position that service of an NTA triggers the “stop-time” rule “regardless of whether the date and time of the hearing have been included in the document.” However, noted the Board, while a number of the circuit courts agreed with Camarillo’s holding and found that it was entitled to Chevron deference, the Third Circuit found no ambiguity in the statutory language and “declined to defer” to that decision, concluding that an initial NTA that fails to satisfy §239(a)(1) “will not stop the continuous residency clock until the combination of notices, properly served”, conveys the complete set of information mandated by §239.
The BIA next discussed the Supreme Court’s analysis in Pereira v. Sessions, which had “focused on the plain language of the statute,” specifically “the intersection” of the “stop-time” rule, which terminates continuous residence or physical presence when one is served with an NTA, with the notice requirements of §239(a) which state that an NTA “must specify certain information,” including the time and place of the next hearing. Per the Board, the Court had granted certiorari in Pereira “to resolve the division regarding the ‘stop-time’ rule between the Third Circuit, which had rejected Matter of Camarillo as contrary to the pain language of the statute, and other circuits that had deferred to it.” But, admitted the BIA, Pereira had been “resolved in favor of the Third Circuit” and the Supreme Court upheld that circuit’s “two-step” process” under which a hearing notice could perfect a previously issued NTA that had omitted the time and place data. Further, noted the Board, since the respondent in Pereira received only a deficient NTA with no follow-up hearing notice providing the required information until after he had accrued 10 years of physical presence, “the Supreme Court had no need to address either how the ‘stop-time’ rule operates once such information had been properly conveyed or at what point [ respondent’s ] period of continuous physical presence stops accruing.” The BIA therefore did not read Pereira as invalidating the two-step notice process, which allows a hearing notice to “cure” a previously-issued deficient NTA.
As a result, the Board held that the two-step process, which allows for perfection of a deficient NTA, “triggers the ‘stop-time’ rule, and ends [respondent’s] period of continuous residence or physical presence in the United States.” The opinion went on to specifically disagree with the dissent’s contention that the majority here is ignoring the Supreme Court’s broader holding that, based on the statute’s plain text, “it is clear that to trigger the stop-time rule, the government must serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.” Focusing on what it termed Pereira’s “invocation of ‘common sense’”, the BIA stated that the Supreme Court has explained that the fundamental purpose of notice is to “convey essential information” to the respondent, creating “a reasonable expectation” that he or she will appear at the next proceeding, which the opinion found to be consistent with the statutory text and judicial precedent that departed from Camarillo. This purpose, concluded the Board, can be satisfied by “a combination of documents that jointly provide the notice required by statute” although it need not be done by a single document. Rather, “it may be provided in one or more documents – in a single or multiple mailings” – so long as the “essential information” is conveyed in writing and “fairly informs” respondent of the date and place of the next hearing.
In conclusion, the BIA found that in light of the pre-Pereira jurisprudence, the Supreme Court case itself-which the opinion described as resolving the circuit court split in favor of “a plain language rejection” of Camarillo- and Third Circuit precedent – it would now adopt the “equally plausible” view that had been rejected previously in Camarillo. As such, held the Board, where an NTA omits “essential information”, subsequent service of a hearing notice with the time and place data perfects the deficient NTA, satisfies INA §239(a)(1)’s notice requirements, and triggers the “stop-time” rule. Because, unlike with the respondent in Pereira, respondents here had appeared at their initial removal hearing after receiving the hearing notice, the decision denied their motion to remand based on Pereira. The record was ordered remanded to the IJ for further proceedings and entry of a new order.
The dissent by Board Member Guendelsberger pointed to Pereira as governing law which “compels” a finding that the service of a hearing notice by an Immigration Court does not meet the definition of an NTA under INA §239(a)(1) and therefore does not trigger the “stop-time” rule when the NTA omits the time and place information. The dissent claimed that the Supreme Court in Pereira had clearly and unambiguously held that a “putative” NTA that fails to designate the time or place of proceedings is not a §239 NTA capable of implicating the “stop-time” rule, i.e., per the Court’s “underlying reasoning” and holding, a hearing notice cannot qualify as the NTA that §239(a)(1) requires to “stop time.” Further, Board Member Guendelsberger noted that the Supreme Court emphasized that the omission of time-and-place data is not “some trivial, ministerial defect, akin to an unsigned notice of appeal”; the plain text of §239 requires DHS to include the required data in an NTA in order to trigger the “stop-time” rule.
The dissent also found the majority’s reliance on Third Circuit precedent (subsequent hearing notice perfects NTA, triggering “stop-time”) misplaced, as the 2016 case cited was “issued prior to Pereira, its reasoning does not take into account the Supreme Court’s definition that the ‘stop-time’ rule contains plain and unambiguous language in its description of the event that triggers the ‘stop-time’ rule, namely, the service of” a §239(a)(1) NTA. However, the Pereira decision does not, in Board Member Guendelsberger’s opinion, prevents DHS from issuing a new NTA that meets §239’s requirements. The dissent thus concluded that neither the service of an NTA nor the subsequent service of a hearing notice on the respondents here ‘triggered’ the “stop-time” rule for purposes of cancellation of removal under INA §240A. Matter of Mendoza-Hernandez and Capula-Cortez, 27 I&N Dec. 520 (BIA 2019).