Victor Mejia-Padilla v. Merrick B. Garland
2f4th1026
| 7th Cir. | 2021Background
- Victor Mejia-Padilla entered the U.S. without inspection in 2005; placed in removal proceedings in 2011 via an NTA that omitted the hearing date/time; a separate notice later provided that information.
- In March 2012 an IJ granted voluntary departure (alternatively ordering removal if he failed to leave by July 19, 2012); Mejia stayed in the U.S. under supervision and complied with the conditions.
- Pereira (2018) held that an NTA missing date/time does not trigger the stop-time rule, so Mejia later filed (within 30 days of Pereira) a motion styled as reconsideration and reopening arguing the defective NTA preserved his continuous-presence period and made him eligible for cancellation of removal.
- The IJ denied the motion relying on the BIA’s Bermudez-Cota rationale that separate notices can be read together; the BIA dismissed Mejia’s appeal as untimely/number-barred and held the NTA defect is a claim-processing rule that was forfeited because he did not timely object.
- The BIA also found Mejia’s statutory motion to reopen untimely (filed ~6 years after the removal order) and rejected sua sponte reopening; Mejia sought review in this court.
- The Seventh Circuit held Mejia forfeited the NTA objection, did not show cause or prejudice, and was not entitled to equitable tolling, and therefore denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Is an NTA missing date/time a jurisdictional defect or a forfeitable claim-processing rule? | Mejia: defect deprived the immigration court of jurisdiction; can be raised anytime. | BIA/Gov’t: defect is a claim-processing rule that must be raised timely or is forfeited. | Court: defect is a claim-processing rule; Mejia forfeited it by not timely objecting. |
| 2. Was Mejia’s statutory motion to reopen timely or subject to equitable tolling? | Mejia: Pereira was a sea-change; equitable tolling should excuse the late motion filed years after the order. | BIA/Gov’t: the statutory argument was available earlier; no extraordinary circumstance prevented timely filing. | Court: motion untimely; equitable tolling not warranted. |
| 3. Did Mejia show prejudice from the defective NTA (necessary to excuse forfeiture)? | Mejia: the defect prevented stop-time, so he now has 10 years and can seek cancellation. | BIA/Gov’t: he received the date/time in a follow-up notice, appeared at hearings, and suffered no hearing-related prejudice. | Court: no prejudice shown; receipt of follow-up cure and appearance negate prejudice. |
| 4. Was sua sponte reopening required? | Mejia sought sua sponte reopening as an alternative remedy. | BIA: accrual of equities while respondent remained in U.S. not an exceptional circumstance to reopen sua sponte. | Court: BIA’s denial of sua sponte reopening is discretionary and not reviewed here. |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA that omits date/time does not trigger stop-time rule)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (clarified limits on curing defective NTAs and undercut BIA cure rationale)
- Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (NTA timing/place omission is a claim-processing rule forfeitable if not timely raised)
- Chen v. Barr, 960 F.3d 448 (7th Cir. 2020) (Pereira does not permit reopening when petitioner failed to timely challenge defective NTA)
- United States v. Manriquez-Alvarado, 953 F.3d 511 (7th Cir. 2020) (objection to defective NTA was available earlier; futility is not an excuse)
- Meraz-Saucedo v. Rosen, 986 F.3d 676 (7th Cir. 2021) (rejects attempt to treat stop-time/substantive relief as immune from claim-processing rules)
- Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) (pre-Pereira precedent treating follow-up notices as curing initial NTA omissions)