Jordany Pierre-Paul v. William Barr, U. S. Atty Ge
930 F.3d 684
| 5th Cir. | 2019Background
- Petitioner Jordany Pierre‑Paul, a Haitian national admitted in 2001, accrued multiple criminal convictions (including cocaine possession) and was placed in removal proceedings beginning 2010.
- The initial Notice to Appear (NTA) served in 2010 omitted the time and date of the initial hearing; a separate notice of hearing with time/date was later sent by the immigration court.
- An IJ found Pierre‑Paul mentally incompetent in 2016 and appointed counsel and various procedural safeguards; a successor IJ later conducted proceedings and ordered removal in 2017, denying asylum, withholding, CAT, and cancellation of removal.
- The BIA affirmed denial of asylum and withholding for lack of nexus, declined to decide some statutory issues, and denied cancellation of removal as a discretionary matter.
- Pierre‑Paul appealed to the Fifth Circuit challenging (1) the IJ’s jurisdiction based on the defective NTA, (2) denials of asylum/withholding/cancellation, and (3) alleged due‑process violations for failure to follow post‑competency safeguards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether initial NTA that omitted time/date deprived the immigration court of jurisdiction | Pierre‑Paul: omission makes the NTA not a valid charging document per Pereira, so proceedings never commenced | Gov: NTA complied with regulations; in any event a subsequent notice of hearing cured any defect; regs are claim‑processing, not jurisdictional | Court: NTA was not defective under the regs; even if defective it was cured by later notice; and 8 C.F.R. §1003.14 is a claim‑processing rule forfeitable if not timely raised |
| Whether a defective NTA can be cured by a later notice of hearing | Pierre‑Paul: Pereira implies strict requirements that can’t be split across documents | Gov: Two‑step process is permissible and effectuates notice; BIA precedent allows cure | Held: Two‑step process can cure omission; later notice of hearing satisfied timing/place requirement |
| Whether requirement in 8 C.F.R. §1003.14 is jurisdictional | Pierre‑Paul: regulation’s language supports jurisdictional character | Gov: Regulation is procedural; Congress did not clearly make it jurisdictional | Held: §1003.14 is a non‑jurisdictional claim‑processing rule; failure to timely object forfeits the claim |
| Reviewability of denial of asylum and withholding given criminal‑alien bar | Pierre‑Paul: challenges BIA’s nexus finding | Gov: 8 U.S.C. §1252(a)(2)(C) bars review of orders based on §1227(a)(2) criminal grounds | Held: Court lacks jurisdiction over factual nexus determinations; asylum/withholding denials dismissed in part |
| Reviewability of denial of cancellation of removal | Pierre‑Paul: challenges discretionary denial and statutory eligibility | Gov: 8 U.S.C. §1252(a)(2)(B) bars review of discretionary relief decisions | Held: Denial of cancellation as discretionary is not reviewable; petition dismissed in part |
| Due process re: procedural safeguards after competency finding | Pierre‑Paul: IJ failed to adhere to safeguards (crediting testimony, etc.) | Gov: IJ credited plaintiff’s narration where required, treated testimony as credible, and properly relied on objective evidence | Held: No due process violation; IJ’s weighing of subjective statements vs objective evidence was proper; claim denied |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (holding an NTA that omits time/place is not a §1229(a) notice for stop‑time rule purposes)
- Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019) (distinguishing jurisdictional rules from claim‑processing rules)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (Congressional silence disfavors treating procedural requirements as jurisdictional)
- Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs & Trainmen, 558 U.S. 67 (2009) (agency procedural regulation not necessarily jurisdictional)
- Diop v. Lynch, 807 F.3d 70 (4th Cir. 2015) (discussing IJ discretion to tailor safeguards for incompetent respondents)