34 F.4th 603
7th Cir.2022Background:
- Respondent Jesus Arreola entered the U.S. without authorization in 1996 and lived here continuously; he was arrested for DWI in 2015, and DHS issued a Notice to Appear (NTA) filed with the immigration court on August 14, 2015 that omitted time and place information.
- Arreola attended a master hearing on August 2, 2017, conceded removability, designated Mexico as the country of removal, and filed an application for cancellation of removal (he met physical presence and good moral character requirements).
- After the Supreme Court decided Pereira (June 2018), Arreola moved to terminate proceedings on July 20, 2018 (three days before the scheduled merits hearing), arguing the defective NTA required dismissal; he also pursued cancellation based on hardship to his U.S.-citizen daughter Allison (the only remaining qualifying child by the time of BIA review).
- The Immigration Judge denied termination (following Matter of Bermudez-Cota) and denied cancellation, finding Allison would not suffer "exceptional and extremely unusual hardship." The Board of Immigration Appeals affirmed; Elizabeth aged out during appeal.
- Arreola petitioned for review in the Seventh Circuit, which denied the petition.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of time/place in the NTA is jurisdictional | Arreola: omission deprives court of authority; NTA defective → dismissal | DHS: omission is claim-processing error, forfeitable if not timely raised | Not jurisdictional; follows Ortiz-Santiago — time/place rule is claim-processing and subject to forfeiture |
| Whether Arreola’s objection to the defective NTA was timely | Arreola: objected promptly after Pereira; objection preserved | DHS: objection raised too late (years after NTA and immediately before merits) | Untimely: raised ~3 years after NTA and days before merits; not timely |
| If untimely, whether lateness is excused and whether prejudice exists | Arreola: Pereira newly clarified the claim; lateness excused | DHS: petitioner had counsel/translation and no excuse; no prejudice shown | Lateness not excused; no prejudice shown (petitioner knew time/place, participated, missed nothing) |
| Whether removal would cause "exceptional and extremely unusual" hardship to qualifying child | Arreola: family hardship (medical issues, housing, emotional and financial harm) supports cancellation | DHS: hardship alleged is typical of family separation and not beyond ordinary consequences of deportation | Board’s factual/legal determination affirmed — hardships were not "exceptional and extremely unusual" |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court held an NTA lacking time/place cannot trigger the stop-time rule)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (addressed whether later-issued documents can cure defects in the original NTA)
- Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (held NTA time/place requirement is a claim-processing rule, not jurisdictional)
- Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) (rejected automatic dismissal under Pereira; treated time/place rule as nonjurisdictional)
- Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (Supreme Court: application of law to undisputed facts can be a reviewable question of law)
- Martinez-Baez v. Wilkinson, 986 F.3d 966 (7th Cir. 2021) (clarified standard for "exceptional and extremely unusual hardship")