Serah Karingithi v. Matthew Whitaker
913 F.3d 1158
| 9th Cir. | 2019Background
- Serah Njoki Karingithi, a Kenyan national, entered the U.S. in 2006 and remained past her visa period; DHS filed a notice to appear (NTA) in 2009 charging removability.
- The initial NTA listed the hearing location but left the time and date “To Be Set.” A same-day notice of hearing (and multiple subsequent notices) provided the specific dates and times.
- Karingithi conceded removability but applied for asylum, withholding, CAT relief, and alternatively voluntary departure; proceedings were continued multiple times over five years.
- The IJ denied all relief and ordered removal; the BIA affirmed. Karingithi petitioned for review arguing the IJ lacked jurisdiction because the initial NTA omitted time and date.
- The Ninth Circuit considered whether jurisdiction vests when a charging document filed with the Immigration Court omits time/date but later notices supply them, and whether Pereira v. Sessions controls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ jurisdiction vests when initial NTA omits time/date | Karingithi: NTA without time/date is defective under 8 U.S.C. § 1229(a) and thus does not vest IJ jurisdiction | Government: Regulations (8 C.F.R. §§1003.13–.14) govern vesting; they do not require time/date in initial NTA and allow later hearing notices | The court held the regulations govern jurisdiction; an NTA that meets regulatory requirements vests jurisdiction even if time/date omitted, so IJ had jurisdiction |
| Whether Pereira v. Sessions requires vacatur of proceedings where NTA lacks time/place | Karingithi: Pereira implies an NTA missing time/place is invalid and could affect proceedings | Government: Pereira addressed the stop-time rule for cancellation of removal, not jurisdiction; it is narrow and inapplicable here | The court held Pereira is inapplicable to jurisdictional vesting and does not control this case |
| Whether BIA precedent supports jurisdiction despite initial omission | Karingithi: challenges application | Government: relies on Matter of Bermudez-Cota and deference to BIA interpretation | The court deferred to BIA and found Bermudez‑Cota persuasive and consistent with the regulations |
| Whether the court should consider a Pereira-based cancellation claim now | Karingithi: alternatively argues Pereira makes her eligible for cancellation | Government: cancellation claim was not raised in initial administrative proceeding to this court | The court refused to reach the new cancellation claim and noted it remains pending before the BIA |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court held an NTA lacking time/place does not trigger the stop-time rule; decision was narrow and concerned cancellation eligibility)
- Hernandez‑Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018) (court of appeals concluded regulations vest jurisdiction despite NTA omission of time/date)
- Lezama‑Garcia v. Holder, 666 F.3d 518 (9th Cir. 2011) (describing deference owed to BIA interpretations of regulations)
- Sorenson v. Secretary of the Treasury, 475 U.S. 851 (1986) (canon that identical words in same act ordinarily have same meaning)
- Plaza‑Ramirez v. Sessions, 908 F.3d 282 (7th Cir. 2018) (refusing to consider a cancellation claim not raised in administrative proceedings below)
- Garcia v. Lynch, 786 F.3d 789 (9th Cir. 2015) (noting courts generally cannot reach claims not presented in administrative proceedings below)