Haiyan Chen v. William Barr
960 F.3d 448
| 7th Cir. | 2020Background
- Haiyan Chen entered the U.S. without inspection in 2004; immigration proceedings began in 2010. A form titled "Notice to Appear" dated April 27, 2010 omitted time/place; a separate July 29, 2010 document supplied that information.
- Chen participated in proceedings, sought asylum (denied as untimely), and the BIA dismissed her appeal in March 2017; a prior petition for review was denied.
- After the Supreme Court’s decision in Pereira v. Sessions (2018), Chen filed a motion to reopen (Sept. 2018) seeking cancellation of removal based on ten years’ presence, arguing the defective NTA meant stop-time never occurred; she also sought equitable tolling of the 90‑day reopening deadline.
- The BIA assumed, without deciding, equitable tolling might apply but denied reopening on the merits, treating the two documents together as an effective Notice to Appear (relying on Mendoza‑Hernandez).
- The Seventh Circuit considered whether Chen forfeited her challenge by failing to raise the defective‑NTA claim during the original proceedings and whether relief should be denied without remand under Chenery.
- The court denied Chen’s petition for review, holding she forfeited the issue by waiting until after Pereira, failed to show prejudice from the two‑document notice, and remand was unnecessary.
Issues
| Issue | Chen's Argument | Barr's Argument | Held |
|---|---|---|---|
| Whether a Notice to Appear that omits time/place prevents §1229(b) stop‑time until all required info is provided | Pereira means the notice was ineffective until the hearing time/place was provided, so stop‑time did not occur | Multiple documents may be combined or the defect is forfeitable unless timely raised | Court did not decide the substantive nationwide rule; denied relief on procedural forfeiture grounds (Chen waited too long) |
| Whether Chen is entitled to equitable tolling of the 90‑day motion‑to‑reopen deadline | Equitable tolling should apply because Chen and counsel reasonably did not recognize Pereira’s import before 2018 | Even assuming tolling, reopening should be denied on forfeiture/prejudice grounds | Court noted BIA assumed tolling but denied reopening on the merits/procedural grounds; court denied review |
| Whether a defect in the NTA is jurisdictional or a forfeitable claim‑processing rule | Chen: defective NTA voids proceedings (jurisdictional) | Govt: defect is non‑jurisdictional, forfeitable if not timely raised | Court follows Ortiz‑Santiago: defect is a claim‑processing rule and Chen forfeited by not objecting timely |
| Whether a Chenery remand is required because the BIA did not rely on forfeiture/harmless‑error | Chen: court should remand so agency can address issues it did not decide | Govt: remand unnecessary where forfeiture/harmlessness disposes of the case | Court held remand unnecessary; forfeiture/harmlessness independently justify denial of review |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (held a §1229(a) Notice omitting time/place is not an effective notice for stop‑time purposes)
- Ortiz‑Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (held NTA defect is a claim‑processing rule that can be forfeited)
- Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) (held a Notice may be cured if a date is later provided)
- Bousley v. United States, 523 U.S. 614 (1998) (adverse local precedent does not excuse failing to raise an argument unless unforeseeable)
- Manriquez‑Alvarado v. Barr, 953 F.3d 511 (7th Cir. 2020) (applied forfeiture and prejudice analysis to defective NTA claims)
- Garcia‑Romo v. Barr, 940 F.3d 192 (6th Cir. 2019) (joined Mendoza‑Hernandez approach allowing multiple documents to supply NTA information)
- Guadalupe v. Attorney General, 951 F.3d 161 (3d Cir. 2020) (reached a contrary view to Mendoza‑Hernandez)
- Banuelos‑Galviz v. Barr, 953 F.3d 1176 (10th Cir. 2020) (reached a contrary view to Mendoza‑Hernandez)
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (principle on remanding to agencies to address issues in the first instance)
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) (establishes deference to reasonable agency statutory interpretations)