27 I. & N. Dec. 520
BIA2019Background
- Respondents (husband and wife, Mexican nationals) were served DHS Form I-862 notices to appear on Oct 11, 2010 that omitted time/place for the initial removal hearing; DHS filed those notices with the Immigration Court Nov 22, 2010.
- Immigration Court mailed notices of hearing on Dec 8, 2010 scheduling the initial hearing for Jan 6, 2011; respondents appeared at that hearing and subsequent hearings and obtained counsel.
- IJ denied respondents’ applications for cancellation of removal under INA §240A(b)(1), finding they lacked 10 years’ continuous physical presence measured back from service of the triggering notice.
- Respondents appealed, relying on Pereira v. Sessions (2018), arguing a deficient NTA without time/place does not trigger the stop-time rule; DHS argued the combination of DHS NTA + subsequent hearing notice satisfies INA §239(a) and triggers stop-time.
- The Board (majority) held that a deficient NTA is “perfected” when a later notice of hearing supplies time/place, triggering the stop-time rule (continuous presence ended Dec 8, 2010); remanded to IJ to reconsider continuous-presence evidence.
- A dissent argued Pereira’s plain-text holding forbids curing a DHS-deficient NTA via an Immigration Court hearing notice and would require a new DHS-compliant NTA (or other statutorily specified events) to stop accrual.
Issues
| Issue | Respondents' Argument | DHS/Board Majority Argument | Held |
|---|---|---|---|
| Whether a deficient NTA (omitting time/place) is cured by a later Immigration Court notice of hearing such that the stop-time rule is triggered | Pereira means the initial DHS NTA did not trigger stop-time; accrual continues until a DHS-compliant NTA is served | The NTA + subsequent notice of hearing together satisfy §239(a) and thus stop-time is triggered when the hearing notice supplies time/place | Majority: A subsequent notice of hearing that supplies the missing time/place “perfects” the NTA and triggers stop-time (continuous presence ended Dec 8, 2010); remand for IJ factfinding |
| Whether the omission of time/place in DHS NTA deprives the Immigration Court of jurisdiction or requires termination of proceedings | Jurisdiction never vested; a hearing notice cannot cure jurisdictional defect; personal appearance cannot waive subject-matter jurisdiction | Bermudez-Cota and circuit precedents hold jurisdiction vests if the DHS NTA is followed by a hearing notice supplying time/place | Majority: Jurisdiction is not defective where a subsequent hearing notice supplies time/place; proceedings remain valid (denial of termination) |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court holding that a notice to appear lacking time and place does not itself trigger the stop-time rule)
- Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) (holding stop-time can be triggered by combination of NTA and subsequent hearing notice)
- Guamanrrigra v. Holder, 670 F.3d 404 (2d Cir. 2012) (adopting view that stop-time may be triggered by a Notice to Appear perfected by later hearing notice)
- Orozco-Velasquez v. Att’y Gen. U.S., 817 F.3d 78 (3d Cir. 2016) (concluding stop-time unambiguously requires service of an NTA meeting §239(a)(1), but recognizing that the combination of notices can convey required information)
- Moscoso-Castellanos v. Lynch, 803 F.3d 1079 (9th Cir. 2015) (circuit precedent on interplay between defective NTA and later notice in stop-time analysis)