27 I. & N. Dec. 441
BIA2018Background
- Respondent (Mexican national) was served with a Notice to Appear (NTA) on Aug. 28, 2013 that did not specify time/place; a separate Notice of Hearing mailed Sept. 9, 2013 set his May 13, 2014 hearing. Respondent attended hearings thereafter.
- At an Oct. 3, 2017 hearing IJ denied respondent’s requests for continuance and administrative closure but granted voluntary departure; respondent appealed and moved to terminate proceedings while appeal pending.
- Respondent relied on Pereira v. Sessions to argue the initial NTA was defective (lacked time/place) and thus proceedings must be terminated because jurisdiction never vested.
- DHS opposed termination and the appeal; Board considered whether a two-step notice (NTA + later notice of hearing) satisfies section 239(a) and vests jurisdiction.
- Board distinguished Pereira (which addressed the stop-time rule for cancellation of removal when NTA lacks time/place) and surveyed federal circuits holding a two-step notice process adequate if a subsequent notice of hearing provides time/place.
- Board denied motion to terminate, dismissed the appeal (administrative closure foreclosed by Matter of Castro‑Tum; continuance denied for lack of good cause), and reinstated IJ’s voluntary departure grant.
Issues
| Issue | Plaintiff's Argument (Respondent) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether an NTA that omits time/place can vest IJ jurisdiction | Pereira means any NTA without time/place is defective for all purposes; proceedings must terminate | A two-step process (NTA + later notice of hearing) vests jurisdiction when hearing notice is later sent and received | A two-step notice vests jurisdiction if a subsequent notice of hearing specifying time/place is sent; motion to terminate denied |
| Whether Pereira requires termination of proceedings like this case | Pereira’s logic invalidates NTAs without time/place and thus nullifies proceedings | Pereira was narrow, addressing stop-time rule and not aimed at terminating proceedings where hearing notice later provided | Pereira distinguished; it addressed stop-time only and remanded for further proceedings, not termination |
| Whether IJ/Board must administratively close case | Respondent sought administrative closure to pursue adjustment | DHS opposed; Attorney General precedent limits closure authority | Administrative closure unavailable here under Matter of Castro‑Tum; request denied |
| Whether continuance should be granted for potential future adjustment eligibility | Respondent sought continuance based on possible adjustment of status | DHS opposed; speculative eligibility and prior continuance weigh against granting | Continuance denied for lack of good cause (speculative relief and prior continuance) |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (SCOTUS: NTA omitting time/place does not trigger stop-time rule; issue was narrowly framed)
- Popa v. Holder, 571 F.3d 890 (9th Cir. 2009) (Ninth Circuit: two-step notice process permissible; later hearing notice cures NTA omission)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (Fifth Circuit: subsequent notice of hearing can satisfy statutory notice requirements)
- Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) (Seventh Circuit: NTA plus subsequent hearing notice together vest jurisdiction and can trigger stop-time)
- Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006) (Eighth Circuit: combined NTA and later notice of hearing constitute sufficient notice)