Mario Ortiz-Santiago v. William P. Barr
924 F.3d 956
| 7th Cir. | 2019Background
- Ortiz-Santiago, a Mexican national living in the U.S. since 1999, was served an NTA in Oct. 2015 that omitted the time and date of his removal hearing.
- The Immigration Court later issued a separate Notice of Hearing with the time and date; IJ denied cancellation of removal and the BIA affirmed.
- Ortiz-Santiago appealed after Pereira v. Sessions and argued the defective NTA never became a valid charging document, so the Immigration Court lacked subject-matter jurisdiction and the removal order must be vacated.
- The government argued the two-step practice (NTA without time/date followed by a Notice of Hearing) vested jurisdiction and complied in substance, and that any defect was forfeited if not timely raised.
- The Seventh Circuit found the original NTA legally defective under §1229(a) but held the omission is a nonjurisdictional claim-processing error that can be forfeited if not timely raised.
- Because Ortiz-Santiago did not timely object and showed no prejudice, the court denied his petition for review; merits challenges to the BIA’s hardship and character findings were barred by statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA missing time/date is not a "notice to appear" and thus never vests Immigration Court jurisdiction | Ortiz-Santiago: A Notice lacking time/date is not a §1229(a) NTA and therefore the court never obtained jurisdiction | Government: The two-step process (NTA then Notice of Hearing) satisfies jurisdiction and/or substantial compliance | The omission makes the NTA defective, but it is not jurisdictional; it is a claim‑processing defect that can be forfeited |
| Whether Pereira requires vacatur of removal orders where initial NTA lacked time/date | Ortiz-Santiago: Pereira means missing time/date is equivalent to no NTA and compels vacatur | Government: Pereira addressed the stop‑time rule, not jurisdiction; it does not mandate vacatur for all such NTAs | Pereira establishes the time/date is part of an NTA, but it did not convert the omission into a jurisdictional defect requiring automatic vacatur |
| Whether the statutory/regulatory scheme makes time/date a jurisdictional requirement | Ortiz-Santiago: §1229(a) defines NTA contents, so omission is jurisdictional | Government: Agency rule (8 C.F.R. §1003.14) vests jurisdiction when charging document is filed; two-step practice suffices | The statute prescribes content but does not make the requirement a jurisdictional limit on the Immigration Court’s adjudicatory authority |
| Whether Ortiz-Santiago forfeited the defect and, if so, whether forfeiture should be excused | Ortiz-Santiago: He raised the issue after Pereira and sought remand | Government: He waited too long—issue was forfeited; relief would disrupt many proceedings | Court: He forfeited by not timely objecting; Pereira’s change in law did not excuse forfeiture on this record and no prejudice was shown |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (distinguishing various meanings of "jurisdiction")
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (holding an NTA must include time and place to trigger the stop‑time rule)
- Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) (upholding two‑document NTA/Notice‑of‑Hearing procedure prior to Pereira)
- Gonzalez v. Thaler, 565 U.S. 134 (2012) (distinguishing truly jurisdictional rules from claim‑processing rules)
- Kontrick v. Ryan, 540 U.S. 443 (2004) (claim‑processing rules can be forfeited if not timely raised)
- Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) (describing claim‑processing rules and their function)
- Eberhart v. United States, 546 U.S. 12 (2005) (failure to make timely objection results in forfeiture)
- Becker v. Montgomery, 532 U.S. 757 (2001) (procedural defects in a notice of appeal are curable rather than jurisdictional)