27 I. & N. Dec. 546
BIA2019Background
- Respondent (Honduran) was personally served with a Form I-862 (notice to appear) in August 2002 that did not specify time/place of the initial hearing; the court later mailed a notice of hearing scheduling a 10/31/2002 hearing.
- Respondent did not appear at the October 31, 2002 hearing and an in absentia removal order was entered.
- Respondent filed a motion to reopen in 2018 claiming she did not receive the mailed notice of hearing; the IJ found the mailed notice presumptively delivered and denied reopening; the BIA previously dismissed her appeal.
- She moved again relying on Pereira v. Sessions (Supreme Court, 2018), arguing the original NTA without time/place was invalid and divested the immigration court of jurisdiction, so proceedings must be terminated and the in absentia order rescinded.
- DHS and the BIA relied on regulations and precedent holding a two-step notice (initial NTA filed with court plus subsequent mailed notice of hearing specifying time/place) vests jurisdiction and satisfies section 239(a); the mailed notice was not returned as undeliverable.
- The BIA denied the motion to reopen, distinguishing Pereira (which addressed the stop-time rule for cancellation of removal) and concluding Pereira does not require rescission or termination where a subsequent proper notice of hearing was sent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA that omits time/place invalidates jurisdiction to commence removal proceedings when a later notice of hearing includes that information | Pena-Mejia: Pereira renders NTA without time/place invalid for vesting jurisdiction; proceedings should be terminated | DHS/BIA: Regulations and circuits allow a two-step notice; filing the NTA with the court vests jurisdiction and a later mailed notice of hearing satisfies statutory notice | Held: Two-step process vests jurisdiction; Pereira is distinguishable and does not negate jurisdiction here |
| Whether Pereira requires rescission of an in absentia removal order where the time/place were provided only in a later mailed notice | Pena-Mejia: In light of Pereira, the original NTA was invalid, so in absentia order must be rescinded | DHS/BIA: Pereira addressed the stop-time rule, not the in absentia statute; §240(b)(5)(A) permits in absentia orders when written notice under §239(a)(1) or (2) is provided; mailed notice satisfied §239(a)(2) | Held: Rescission not required; mailed notice met §239(a)(2) and in absentia order stands |
| Whether Pereira’s interpretation of the stop-time rule controls outside cancellation-of-removal context | Pena-Mejia: Pereira’s reasoning should invalidate NTAs lacking time/place generally | DHS/BIA: Pereira was a narrow decision limited to stop-time and cancellation contexts; other statutory provisions govern in absentia and jurisdiction | Held: Pereira is narrow and inapplicable to in absentia/jurisdictional questions here |
| Whether respondent rebutted presumption of delivery of the mailed notice of hearing | Pena-Mejia: She asserts she and her sister did not receive the mailed notice and provided evidence of address issues | DHS/BIA: Notice was mailed to the address respondent provided and was not returned undelivered; presumption stands | Held: IJ/BIA credited delivery presumption; respondent failed to rebut it; motion to reopen denied |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court limited its holding to whether an NTA omitting time/place triggers the stop-time rule for cancellation of removal)
- Popa v. Holder, 571 F.3d 890 (9th Cir.) (two-step notice process can satisfy statutory notice requirements and vest IJ jurisdiction)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir.) (upholding two-step notice process for in absentia context)
- Dababneh v. Gonzales, 471 F.3d 806 (7th Cir.) (same)
- Haider v. Gonzales, 438 F.3d 902 (8th Cir.) (same)
- Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir.) (holding Pereira does not affect two-step notice conclusions outside stop-time context)
- Mauricio-Benitez v. Sessions, 908 F.3d 144 (5th Cir.) (affirming denial of motion to reopen where mailed notice was sent to address provided by alien; Pereira not controlling)
- Santos-Santos v. Barr, 917 F.3d 486 (6th Cir.) (distinguishing Pereira and upholding in absentia order where later mailed notice supplied time/place)