997 F.3d 145
3rd Cir.2021Background
- Sotero Mejia Romero, a Guatemalan national, had a prior removal order (1998) that was executed in 2011; he returned to the U.S. and DHS sought to reinstate the prior removal under 8 U.S.C. § 1231(a)(5) in 2018.
- Romero expressed fear of return and, after a reasonable-fear interview, an asylum officer found reasonable fear and referred the case to an Immigration Judge (Notice of Referral, Form I-863).
- The Notice of Referral (I-863) did not include the date/time of the initial hearing; Romero later received a separate Notice of Withholding-Only Hearing that did include date/time/location information.
- The IJ held a hearing, denied withholding of removal, and Romero appealed to the BIA, raising among other claims a Pereira-based jurisdictional challenge (that the referral lacked required time/place information).
- The BIA rejected the jurisdictional claim, reasoning that Pereira applies to removal proceedings under the A-file Notice to Appear context, not to withholding-only proceedings initiated by a Notice of Referral, and cited Matter of Bermudez-Cota and this Court’s Nkomo decision.
- Romero timely petitioned for review in this Court, which held the issue is a question of law, reaffirmed Nkomo, and denied the petition—concluding the IJ had jurisdiction despite the I-863’s lack of time/place information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an Immigration Judge lacks jurisdiction when a Notice of Referral (Form I-863) omits date/time/location for the initial hearing | Romero: Pereira requires charging documents to include time/place; analogizes Notice of Referral to a Notice to Appear, so §1003.14 jurisdiction did not vest without those details | BIA/AG: Pereira’s narrow holding applies to the §1229b(d)(1)(A) stop-time/Notice to Appear context; §1003.14/Notice of Referral do not require time/place and the later withholding-hearing notice provided required details | Court: Denied extension of Pereira; Nkomo controls; IJ retained jurisdiction under §1003.14 despite I-863 lacking time/place; petition denied |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (Sup. Ct.) (held that a Notice to Appear lacking time/place cannot trigger certain statutory consequences; narrow stop-time context)
- Nkomo v. Att’y Gen., 930 F.3d 129 (3d Cir. 2019) (refused to extend Pereira to §1003.14 jurisdiction-vesting; jurisdiction may vest absent time/place in charging document)
- Camara v. Att’y Gen., 580 F.3d 196 (3d Cir. 2009) (describes appellate practice of reviewing BIA decisions rather than IJ opinions)