Wilson Guadalupe v. Attorney General United States
951 F.3d 161
| 3rd Cir. | 2020Background
- Wilson Guadalupe, a conditional permanent resident, had his conditional status terminated in 2007 and was placed in removal proceedings.
- DHS served an NTA on May 11, 2007 that omitted the time and date; four days later the Immigration Court mailed a separate Notice of Hearing containing the date/time.
- Guadalupe appeared at hearings in 2007 and 2008; the IJ denied relief and the BIA affirmed; Guadalupe remained in the U.S.
- After Pereira v. Sessions (2018) held that an NTA missing time/date does not trigger the stop-time rule, Guadalupe moved to reopen, arguing he has accrued 10 years of continuous residence and is eligible for cancellation of removal.
- The BIA denied reopening, relying on Matter of Bermudez-Cota (holding a later Notice of Hearing can cure a defective NTA); Guadalupe petitioned for review.
- The Third Circuit held Pereira abrogated Orozco-Velasquez and ruled a defective NTA cannot be cured by a subsequent Notice of Hearing; it vacated the BIA’s order and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defective NTA (omitting time/date) can be cured by a subsequent Notice of Hearing for stop-time purposes | Guadalupe: A deficient NTA does not trigger the stop-time rule; later Notice of Hearing cannot retroactively stop the clock | DHS/Government: The required information may be provided across multiple documents; BIA precedent and Chevron deference permit curing the defective NTA | The court held that Pereira establishes a bright-line rule: a defective NTA cannot be cured by a later Notice of Hearing; Pereira abrogates Orozco-Velasquez; the BIA’s denial was legal error and the case is remanded |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court: an NTA omitting time/place is not a notice under §1229(a) and does not trigger stop-time)
- Orozco-Velasquez v. Attorney General, 817 F.3d 78 (3d Cir. 2016) (prior Third Circuit holding that separate notices could together satisfy §1229(a))
- Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019) (held a later Notice of Hearing can cure a defective NTA)
- Nkomo v. Attorney General, 930 F.3d 129 (3d Cir. 2019) (addressed Pereira’s effect on IJ authority and jurisdiction)
- Tarrawally v. Ashcroft, 338 F.3d 180 (3d Cir. 2003) (standard for reviewing legal questions in immigration cases)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (framework for agency deference invoked by the government)