David Herrera-Orozco v. Eric Holder, Jr.
603 F. App'x 471
6th Cir.2015Background
- Herrera-Orozco, a Mexican citizen, was served with an NTA charging removability under INA § 212(a)(6)(A)(i).
- NTA indicated hearing would be set in the future; a separate hearing notice later specified the date and time.
- Case was moved to Memphis; hearing notice scheduled January 24, 2012; he appeared with counsel, conceded removability, and requests for continuance were granted.
- Hearing was rescheduled to December 4, 2012; Herrera-Orozco later received voluntary departure with departure date by March 3, 2013.
- New counsel moved to reopen on January 25, 2013, arguing the NTA was defective for not specifying date/time, thus lacking jurisdiction under 8 U.S.C. § 1229(a)(1)(G)(i).
- IJ denied the motion to reopen on April 4, 2014, holding the two-step notice satisfied INA § 239(a)(1) and declining to review regulations; BIA affirmed on June 13, 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two-step notice satisfies INA § 239(a)(1) notice requirements | Herrera-Orozco argues the NTA was defective and proceedings lacked proper initiation. | IJ/BIA held the two-step process, with later hearing notice, satisfies statutory notice requirements. | Two-step notice satisfies INA § 239(a)(1). |
| Whether the NTA deficient for not listing date/time defeats jurisdiction | NTA alone was insufficient to initiate proceedings; jurisdiction lacked. | Subsequent notice of hearing cures any deficiency and preserves jurisdiction. | NTA deficiencies did not deprive IJ of jurisdiction; subsequent notice cures defect. |
| Whether the movant showed new eligibility or changed circumstances to warrant reopening | Motion to reopen based on NTA defect constitutes new basis for relief. | Arguments were previously addressed; no new evidence or change in circumstances. | Denial of motion to reopen was not an abuse of discretion. |
Key Cases Cited
- Beltran-Rodriguez v. Holder, 530 F. App’x 464 (6th Cir. 2013) (NTA with future date followed by specific hearing notice satisfies notice requirements)
- Soumah v. Holder, 403 F. App’x 999 (6th Cir. 2010) (NTA lacking time/date does not deprive IJ of jurisdiction when hearing notice follows)
- Mota-Roman v. Holder, 331 F. App’x 379 (6th Cir. 2009) (NTA plus subsequent hearing notice meets §239(a)(1) requirements)
- Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) (Two documents can satisfy notice and initiation of removal)
- Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006) (NTA and NOH can combine to provide requisite notice)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (NTA need not specify exact time/date if hearing notice provides it later)
- Popa v. Holder, 571 F.3d 890 (9th Cir. 2009) (Notice may be provided in subsequent notice; not defective)
- Guamanrrigra v. Holder, 670 F.3d 404 (2d Cir. 2012) (Service of NTA without specifics followed by hearing notice satisfies INA)
- Dada v. Mukasey, 554 U.S. 1 (S. Ct. 2008) (Motion to reopen treated as a form of relief with discretion)
- Porras v. Holder, 572 F. App’x 436 (6th Cir. 2014) (Motions to reopen are disfavored; broad agency discretion applies)