52 F.4th 514
1st Cir.2022Background
- Sergio Rodolfo Laparra-Deleon, a Guatemalan national, entered the U.S. without inspection in ~2002 and was charged with removability by DHS in July 2008 by a document stating his hearing date/time would be “to be set.”
- The Immigration Court later mailed a master-calendar notice scheduling a hearing for April 8, 2010; that notice was returned as undeliverable and Laparra-Deleon did not appear.
- He was ordered removed in absentia under 8 U.S.C. § 1229a(b)(5)(A).
- Relying on Pereira v. Sessions and Niz-Chavez v. Garland, Laparra-Deleon moved (1) to reopen and terminate proceedings for lack of jurisdiction and (2) alternatively to reopen and rescind the in absentia order because he had not received the "written notice required under paragraph (1) or (2) of section 1229(a)."
- The BIA denied both motions; on review the First Circuit denied relief on the termination/jurisdiction claim but granted relief as to the rescission claim, vacating the BIA ruling and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether immigration court lacked jurisdiction because DHS charging document was not a § 1229(a) "notice to appear" (thus proceedings should be terminated) | Laparra-Deleon: the DHS charging document failed to state time/date as required by § 1229(a)(1), so regulationally required "charging document" never vested jurisdiction | Government: BIA precedent permits vesting of jurisdiction despite documents not meeting § 1229(a)(1) formalism | First Circuit: denied relief on termination claim; no jurisdictional bar in this posture (petition denied as to termination) |
| Whether the in absentia removal may stand because Laparra-Deleon received "written notice required under paragraph (1) or (2) of § 1229(a)" | Laparra-Deleon: under Pereira and Niz-Chavez, the DHS charging doc was not a § 1229(a)(1) notice and the later court mailing did not qualify as a § 1229(a)(2) "change" (it initially set the time rather than changed a prior time) | Government/BIA: the disjunctive "paragraph (1) or (2)" allows either form; the court mailing supplied the required notice as a § 1229(a)(2) change; alternatively, any defect was harmless because he actually received notice | First Circuit: granted relief. Applying Pereira (and Niz‑Chavez), the court concluded § 1229(a)(2)'s “change” presumes a prior time/place set by § 1229(a)(1); the court mailing therefore did not qualify as paragraph (2) notice. Vacated BIA ruling and remanded for further proceedings (e.g., harmless-error analysis by the BIA) |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (a document that omits the time/date does not constitute a § 1229(a)(1) "notice to appear")
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (a compliant "notice to appear" must be a single document; separate documents cannot be combined to constitute § 1229(a)(1) notice)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (two-step framework for reviewing agency statutory interpretations)
- Shinseki v. Sanders, 556 U.S. 396 (2009) (harmless-error principles in administrative contexts)
- Brand X Internet Services v. FCC, 545 U.S. 967 (2005) (when an agency offers a reasonable construction, courts may defer to it under certain conditions)
- Goncalves Pontes v. Barr, 938 F.3d 1 (1st Cir. 2019) (no jurisdictional bar to removal proceedings in similar posture)
- Adeyanju v. Garland, 27 F.4th 25 (1st Cir. 2022) (standards on de novo review of legal questions in immigration cases)
- Xin Qiang Liu v. Lynch, 802 F.3d 69 (1st Cir. 2015) (abuse-of-discretion standard for BIA denial of motions to reopen)
- Singh v. Garland, 24 F.4th 1315 (9th Cir. 2022) (agrees that § 1229(a)(2) "change" presumes a prior § 1229(a)(1) time/place)
- Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021) (same interpretation of § 1229(a)(2) as requiring a prior time/place)