27 I. & N. Dec. 551
BIA2019Background
- Respondent (Brazilian national) entered without inspection in 2005 and was personally served with a Notice to Appear (NTA) that did not specify a date/time; she refused to provide a contact address as requested.
- She failed to appear at the scheduled hearing and was ordered removed in absentia in 2005.
- In 2017 she moved to sua sponte reopen the proceedings to rescind the in absentia order so she could apply for a provisional unlawful presence waiver and seek relief based on marriage to a U.S. citizen and an approved I-130.
- The Immigration Judge denied sua sponte reopening, finding no exceptional circumstances and noting provisional waivers are obtained from USCIS.
- Respondent relied on Pereira v. Sessions to argue the NTA was invalid because it omitted time/place, and that reopening would enable eligibility for cancellation of removal.
- The BIA distinguished Pereira, emphasized the statutory scheme for in absentia orders when an alien refuses to provide an address, and affirmed denial of sua sponte reopening.
Issues
| Issue | Miranda-Cordiero's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Pereira invalidates an NTA lacking time/place so as to require rescission/termination | NTA without time/place is invalid under Pereira; proceedings must be reopened | Pereira’s holding is narrow (stop-time rule) and does not invalidate NTAs or require rescission here | Distinguished Pereira; no rescission required where alien refused to provide address and statutory notice provisions satisfied |
| Whether jurisdiction vested in Immigration Court despite NTA omission | NTA omission defeated vesting/jurisdiction | Jurisdiction vests when charging document is filed; regs do not require time/place to vest jurisdiction | Jurisdiction properly vested; regulations and §240(b)(5)(A) govern in absentia orders |
| Effect of respondent’s refusal to provide an address on notice requirements | (Implicit) Pereira means missing time/place matters regardless of address issue | If alien fails to provide required address, statute (§240(b)(5)(B)) removes need for separate written notice of time/place | Respondent’s refusal triggered statutory exception; mailing of hearing notice was not required and in absentia order valid |
| Whether sua sponte reopening was warranted (exceptional circumstances) | Argued extreme hardship and country conditions justify sua sponte reopening | Sua sponte reopening is discretionary and not a cure for filing defects; respondent did not show exceptional circumstances | BIA affirmed denial: no exceptional circumstance shown; discretionary reopening denied |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (held NTA omission of time/place relevant to stop-time rule for cancellation of removal)
- Mauricio-Benitez v. Sessions, 908 F.3d 144 (5th Cir. 2018) (upheld refusal to reopen in absentia order where alien failed to provide correct address; distinguished Pereira)
- Fuentes-Pena v. Barr, 917 F.3d 827 (5th Cir. 2019) (noting Pereira inapplicable to reopening context)
- Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019) (distinguished Pereira; regulations vest jurisdiction without time/place in NTA)
- Molina-Guillen v. U.S. Att’y Gen., 758 F. App’x 893 (11th Cir. 2019) (distinguished Pereira where subsequent notice supplied date/time and notice requirements were fulfilled)