Gustavo Urbina v. Eric Holder, Jr.
745 F.3d 736
| 4th Cir. | 2014Background
- Urbina, a Nicaragua national, entered the United States on Oct. 4, 2000 on a tourist visa and overstayed.
- In Dec. 2009, DHS served Urbina with a notice to appear charging illegal entry; government relied on Urbina’s TPS applications stating 1998 entry date.
- Urbina claimed the original notice to appear was invalid and that the accrual of the ten-year period should not be stopped until a valid amended charge was issued.
- The IJ initially allowed an amended charge after Urbina produced his passport; DHS later amended the charge to overstaying present presence.
- The BIA dismissed Urbina’s appeal and denied his motion to reconsider; Urbina petitioned for review in this court, which consolidated with a motion to reconsider.
- The issues concern the validity of the stop-time trigger, the propriety of delaying proceedings to amend charges, regulatory authority to amend charges, due process concerns, and the BIA’s reconsideration denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the original notice to appear valid enough to stop the 10-year clock? | Urbina—original notice invalid due to incorrect charge and missing date/time. | Urbina—Camarillo supports stop-time validity despite deficiencies. | Original notice valid; stop-time triggered. |
| Did the IJ abuse discretion by denying termination and continuing to allow amendment? | Urbina contends termination would have prevented stop-time shift. | IJ's continuation to enable amendment aligned with policy. | No abuse of discretion; termination not required. |
| Was 8 C.F.R. § 1240.10(e) a valid regulation permitting amendment of charges? | Regulation lacks statutory authorization for amending charges. | Delegated authority permits reasonable amendments. | Regulation valid; not arbitrary or capricious. |
| Did the IJ violate due process by pretermitting cancellation relief proceedings? | Open factual issues on eligibility; due process concerns. | Court lacks jurisdiction to review at this stage; exhaustion rule. | Lacked jurisdiction to review due to exhaustion. |
| Was the BIA’s denial of Urbina’s motion to reconsider improper? | BIA relied on fraud findings; argued Accardi issues. | Camarillo-based rationale control; fraud rationale alternative. | Denial affirmed; Camarillo-based reasoning controlling. |
Key Cases Cited
- Camarillo, In re, 25 I. & N. Dec. 644 (B.I.A. 2011) (stop-time interpretation depends on DHS interpretation of 1229b(d)(1)(A))
- Suisa v. Holder, 609 F.3d 314 (4th Cir. 2010) (agency authority to issue regulations upheld unless arbitrary or capricious)
- Onyeme v. U.S. I.N.S., 146 F.3d 227 (4th Cir. 1998) (discretionary review standards for BIA decisions)
- Massis v. Mukasey, 549 F.3d 631 (4th Cir. 2008) (jurisdictional exhaustion and review of final orders)
- Accardi v. Shaughnessy, 347 U.S. 260 (1954) (due process/fair administration of agency proceedings)
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) (agency deference when statute is silent or ambiguous)