Isaias Lorenzo Lopez v. William Barr
925 F.3d 396
| 9th Cir. | 2019Background
- Lorenzo, an LPR since Feb. 2002, was served a Notice to Appear (NTA) in March 2008 that lacked time/place information required by 8 U.S.C. § 1229(a)(1).
- DHS later served a separate April 2008 document titled "Notice of Hearing" that contained the time and place for Lorenzo’s removal proceeding.
- The Immigration Judge and BIA held the March 2008 NTA (plus later Notice of Hearing) terminated Lorenzo’s continuous-residence period, making him ineligible for cancellation of removal under 8 U.S.C. § 1229b(a).
- While Lorenzo’s appeal was pending, the Supreme Court decided Pereira v. Sessions holding an NTA lacking time/place is not an NTA under § 1229(a) and thus does not trigger the § 1229b(d)(1) stop-time rule.
- The Ninth Circuit considered whether a later Notice of Hearing can "cure" a Pereira-defective NTA and whether deference is due to the BIA’s contrary en banc decision.
Issues
| Issue | Plaintiff's Argument (Lorenzo) | Defendant's Argument (Barr/DHS) | Held |
|---|---|---|---|
| Whether a subsequent Notice of Hearing containing time/place information can cure an NTA defective under Pereira and trigger the § 1229b(d)(1) stop-time rule | The later Notice of Hearing cannot cure a Pereira-defective NTA; the statute requires a single NTA as defined in § 1229(a) to stop the clock | A Notice of Hearing that supplies the missing time/place information perfects the earlier defective NTA and triggers stop-time (and prior Ninth Circuit precedent Popa supports this) | Held: A Notice of Hearing cannot cure a Pereira-defective NTA; stop-time was not triggered in 2008, so Lorenzo accrued the requisite 7 years and is eligible for cancellation of removal. |
| Whether the court must defer to the BIA’s en banc decision (Matter of Mendoza-Hernandez) that a two-step notice process can perfect an NTA | N/A (Lorenzo opposed BIA view) | The BIA’s interpretation is entitled to deference | Held: No Chevron/agency deference; BIA’s contrary reading conflicts with Pereira and the statute’s plain text, so the court gives no deference. |
| Whether Pereira’s decision (and related precedents) allows regulatory or practical exceptions (e.g., 8 C.F.R. § 1003.18) to permit post-issuance scheduling that cures an NTA | Statute’s text controls; practical/regulatory considerations cannot override § 1229(a)’s content requirements | Regulations and operational limits justify a two-step process and subsequent curing | Held: Practical/regulatory rationales do not override clear statutory text or Pereira; regulations cannot rewrite statutory notice requirements. |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (Sup. Ct.) (an NTA lacking the time and place of proceedings is not an NTA under § 1229(a) and therefore does not trigger the stop-time rule)
- Popa v. Holder, 571 F.3d 890 (9th Cir.) (earlier Ninth Circuit held later notice could perfect an NTA; rejected here)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir.) (distinguished; addressed jurisdictional effect of defective NTA under regulation)
- BNSF Ry. Co. v. Loos, 139 S. Ct. 893 (Sup. Ct.) (relied upon for statutory cross-reference interpretation without deferring to agency)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (Sup. Ct.) (framework for agency deference explained and declined where statute is clear)
- United States v. Hayes, 555 U.S. 415 (Sup. Ct.) (singular/plural statutory drafting can inform interpretation)
- Becker v. Montgomery, 532 U.S. 757 (Sup. Ct.) (permitting curative amendment for ministerial defects; distinguished as inapposite)
- Scarborough v. Principi, 541 U.S. 401 (Sup. Ct.) (permitting amendment for nonessential allegations; distinguished)