950 F.3d 15
1st Cir.2020Background:
- Arevalo, a Guatemalan who entered the U.S. undocumented in 2000, conceded removability in 2010 and applied for asylum, withholding of removal, and CAT protection based on gang-related fears.
- An IJ denied asylum as untimely and denied withholding and CAT relief; the BIA affirmed on November 18, 2010, and Arevalo filed for judicial review.
- The court remanded and retained jurisdiction after the government represented it would administratively close the case; the BIA granted an unopposed motion to administratively close in 2013, stating either party could "recalendar" by motion.
- The parties stipulated that administrative closure removed the final order of removal from the docket; the district court dismissed the petition as voluntarily withdrawn.
- In 2018 the government moved to reinstate (recalendar) the matter; the BIA granted the unopposed motion and ordered the 2010 decision to "take effect." Arevalo moved to reconsider only on the recalendaring issue; the BIA denied relief and Arevalo sought judicial review.
- The central legal dispute: meaning and effect of "recalendar" (reinstatement), whether due process or notice was violated, whether the IJ/BIA lacked jurisdiction under Pereira, and whether Arevalo waived other remedies.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning/effect of "recalendar" | "Recalendar" should require fresh inquiry into intervening events; reinstatement should not simply revive prior decision after long hiatus | "Recalendar" means return to active docket in same posture as when closed; reinstate 2010 decision | Court: "Recalendar" means reinstate to active docket in same posture; BIA acted correctly |
| Due process/notice of reinstatement | Counsel lacked proper notice because the BIA initially mailed to an old address and the 13-day response window had passed | Counsel later entered appearance, received the motion, had time and could have requested an extension; no prejudice | Court: No due process violation; counsel had actual notice and no prejudice shown |
| Jurisdictional defect under Pereira (NTA lacked time/place) | NTA without time/place renders IJ/BIA proceedings null for lack of jurisdiction per Pereira | Governing regulations—8 C.F.R. rules—confer jurisdiction even if NTA omits time/place; Pereira does not control here | Court: Jurisdiction not defeated; Goncalves Pontes controlling—NTA complied with regulations and was effective to confer jurisdiction |
| Failure to seek agency remedies / waiver of merits | Arevalo should be excused because of reinstatement and stale record | Arevalo could have moved to reopen, remand, or vacatur before BIA and failed to do so; he waived merits by not developing arguments | Court: Arevalo waived substantive challenges; he failed to pursue available agency remedies and provided no developed merits arguments |
Key Cases Cited
- Lopez-Reyes v. Gonzales, 496 F.3d 20 (1st Cir. 2007) (administrative closure is a temporary pause that removes a case from the BIA docket)
- Goncalves Pontes v. Barr, 938 F.3d 1 (1st Cir. 2019) (immigration court jurisdiction governed by regulations; NTA omission of time/place does not necessarily defeat jurisdiction)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court decision on NTA and filing of a "stop-time" notice)
- Falae v. Gonzáles, 411 F.3d 11 (1st Cir. 2005) (motions to remand may be treated as motions to reopen/remedy options)
- Jones v. Flowers, 547 U.S. 220 (2006) (due process requires notice reasonably calculated to apprise interested parties)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (establishes the notice standard for due process)
- García v. Lynch, 821 F.3d 178 (1st Cir. 2016) (failure to raise argument before the BIA precludes judicial review)
- Lattab v. Ashcroft, 384 F.3d 8 (1st Cir. 2004) (prejudice is required to sustain procedural due-process challenge)