615 F. App'x 933
11th Cir.2015Background
- Hernandez-Rubio, a Mexican national, petitions review of the BIA's dismissal of his cancellation of removal appeal.
- Disputed issue: whether continuous physical presence ended when DHS served a defective NTA or when the later amended NTA issued.
- The original NTA allegedly contained no date/time of hearing, defective charges, and incorrect allegations.
- IJ and BIA considered that only the NTA served ends the continuous presence period, not any deficiency in the initial NTA.
- DHS could later amend or substitute charges during removal proceedings; due process requires notice and opportunity to be heard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does continuous presence end for cancellation? | Hernandez-Rubio argues end date is the amended NTA. | The end date is the original notice served, regardless of defects. | End date is when the NTA is served; defects do not extend continuous presence. |
| Effect of a defective NTA on due process and notice | Defective NTA violated due process and undermined notice. | Defects do not invalidate notice; opportunity to respond remains. | No due process violation; notice and opportunity to respond were provided. |
| Authority to supplement charges during proceedings | Amendments to NTA are relevant to the ongoing proceedings and should affect presence. | Regulations allow adding/substituting charges at any time; amendments are permissible. | Permissible to add/substitute charges; does not require altering continuous presence end date. |
Key Cases Cited
- Matter of Camarillo, 25 I. & N. Dec. 644 (BIA 2011) (NTA not defective merely for missing date/time)
- Gonzalez-Garcia v. Holder, 770 F.3d 431 (6th Cir. 2014) (purpose of §1229b(d)(1) to prevent accrual during proceedings)
- Lapaix v. U.S. Att’y Gen., 605 F.3d 1138 (11th Cir. 2010) (due process requires notice and opportunity to be heard; substantial prejudice required)
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir. 2009) (review scope when BIA adopts IJ findings)
- Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (scope of judicial review of BIA decisions)