ISAIAS LORENZO LOPEZ v. WILLIAM P. BARR, Attorney General
No. 15-72406
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 22, 2019
Agency No. A078-242-814
FOR PUBLICATION
OPINION
On Pеtition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 12, 2019 Pasadena, California
Filed May 22, 2019
Before: Dorothy W. Nelson and Consuelo M. Callahan, Circuit Judges, and Edward R.
Opinion by Judge Korman; Dissent by Judge Callahan
* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
SUMMARY**
Immigration
Granting Isaias Lorenzo Lopez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal.
Lorenzo sought cancellation of removal, a form of relief from removal that requires that an applicant must, among other requirements, reside in the United States continuously for seven years after having been admitted in any status. However, under the “stoр-time” rule, as relevant here, the service of a Notice to Appear under
In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Supreme Court held that a Notice to Appear, as defined in
However, because Lorenzo also received a subsequent Notice of Hearing that advised him of the time and place of his proceеdings, the Attorney General argued that the Notice of Hearing cured the defective Notice to Appear and triggered the stop-time rule. The Attorney General relied on Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), which held that a Notice to Appear that fails to include the date and time of an alien’s deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice of the hearing is later sent to the alien.
The panel held that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing, explaining that the plain language of the statute foreclosed the Attorney General’s argument and that Pereira had effectively overruled Popa.
The panel noted that the BIA reached a conclusion contrary to the panel’s holding in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019) (en banc), where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule. However, the panel declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira.
Thus, the panel concluded that, because Lorenzo never received a valid Notice to Appear, his residency continued beyond 2008 and, accordingly, he has resided in the United States for over seven years and is eligible for cancellation of removal.
Dissenting, Judge Callahan wrote that she does not read Pereira as holding that the notice of the time and plaсe must be provided in a single document. Rather, Judge Callahan reads Pereira as allowing the Department of Homeland Security to cure a deficient notice to appear by subsequently providing a noncitizen with actual notice of the time and place of the removal proceedings, with the result that the stop-time rule is triggered upon the noncitizen’s receipt of the supplemental notice.
COUNSEL
Jan Joseph Bejar (argued), Law offices of Jan Joseph Bejar P.L.C., San Diego, California, for Petitioner.
M. Jocelyn Lopez Wright (argued), Senior Litigation Counsel; Briena Strippoli, Trial Attorney; Melissa Neiman-Kelting, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
OPINION
KORMAN, District Judge:
Isaias Lorenzo Lopez was born in Oaxaca, Mexico in 1984. In September 1998, when he was fоurteen years old, he arrived in the United States to be with his father, a lawful permanent resident (“LPR“). Lorenzo was paroled into the United States and, two years later, on February 12, 2002, he became an LPR. While in the United States, Lorenzo graduated from high school, receiving good grades while working to support his family. After graduating, he continued to work six days a week on a farm to support his two U.S. citizen children and their mother.
But his record, which includes two misdemeanor convictions for which he served a total of 10 days in jail, is not unblemished. This case arises out of a separate incident that occurred on March 14, 2008: Lorenzo agreed to help Adriana Lopez Estevez enter the United States illegally by furnishing her with a U.S. citizen’s birth certificate and driving to Tijuana to pick her up. When they attempted to return to the United States through the San Ysidro port of entry, border agеnts discovered that Adriana was not actually a U.S. citizen and had no documents authorizing her entry into the country. The agents arrested Lorenzo, and he confessed to attempting to assist Adriana to enter the United States because he felt pity for her. Immediately following his arrest, the Department of Homeland Security (“DHS“) commenced removal proceedings by filing a Notice to Appear and serving it on Lorenzo.
At his removal proceeding, Lorenzo sought cancellation of removal under
While his appeal was pending, the Supreme Court decided Pereira v. Sessions, 138 S. Ct. 2105 (2018). Pereira held that, as defined in
STANDARD OF REVIEW
We review questions of law, such as “the interpretation and construction of statutes,” de novo, Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1041 (9th Cir. 2001), “except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations.” Aragon-Salazar v. Holder, 769 F.3d 699, 703 (9th Cir. 2014). “Questions of law that can be answered with ‘traditional tools of statutory construction’ are within the special expertise of courts, not agencies, and are therefore аnswered by the court de novo.” Ayala-Chavez v. INS, 945 F.2d 288, 294 (9th Cir. 1991) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987)), superseded by statute on other grounds as stated in Urbina-Mauricio v. INS, 989 F.2d 1085, 1088 n.3 (9th Cir. 1993). If “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
DISCUSSION
To trigger the stop-time rule, a Notice to Appear must contain all items listed in
The plain language of the statute forecloses such a result. Popa’s holding that “a Notice to Appear that fails to include
First, Popa explained that we “silently . . . adopted the rule that the time and date of a removal proceeding can be sent after the first notice to appear” because we “never held that the [Notice to Appear] cannot state that the time and place of the proceedings will be set at a future time.” 571 F.3d at 895 (emphasis added). Putting aside the proрriety of adopting rules through judicial silence, Pereira resoundingly rejected what Popa deemed “silently adopted.” Pereira, like Popa, involved a Notice to Appear ordering the alien to appear at a time and date “to be set.” 138 S. Ct. at 2112 (emphasis omitted). But the Supreme Court held that a notice lacking specific time and date information is “not a notice to appear.” Id. at 2118 (quotation marks omitted).
More precisely—indeed, more compellingly—the Supreme Court held that “when the term ‘notice to appear’ is used elsewhere in the statutory section, including as the trigger for the stop-time rule, it carries with it the substantive time-and-place criteria required by § 1229(a).” Id. at 2116. Unlike Popa, this holding relies on unambiguous statutory language. Specifically,
Second, Popa relied on now-outmoded out-of-circuit case law in adopting a “two-step notice procedure.” See id. at 895-96 (citing Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009); Dababneh v. Gonzales, 471 F.3d 806, 809–10 (7th Cir. 2006); Haider v. Gonzales, 438 F.3d 902, 907 (8th Cir. 2006)). Each of the three decisions upon which Popa relied were issued before Pereira, and none binds us today. More importantly, none of these cases comports with the unambiguous statutory text. Haider held that the law “simply requires that an alien be provided written notice of his hearing; it does not require that the [Notice to Appear] served on Haider satisfy all оf § 1229(a)(1)’s notice requirements.” 438 F.3d at 907. This is flatly wrong. As Pereira explained, the term “Notice to Appear” carries with it all of
provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. If that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice . . . of the time, place, and date of hearing.
In any event, the regulation rewrites the statute. As an initial matter,
Moreover, the Supreme Court scrapped the notion that “practical considerations“—namely, that DHS may not be able to access the Immigration Court’s calendar and properly schedule proceedings when it issues a Notice to Appear—excuse the failure to provide “specific time, date, and place” information. Pereira, 138 S. Ct. at 2118-19. Such “considerations . . . do not justify departing from the statute’s clear text.” Id. at 2118. Yet Popa did just that. We cannot now rely on those same considerations to advance a policy other than what Congress passed and the President signed. See Xi v. INS, 298 F.3d 832, 839 (9th Cir. 2002) (“[A] decision to [rearrange] or rewrite the statute falls within the legislative, not the judicial, prerogative.“). Nor may DHS displace legislation with regulation. See League of Wildеrness Defs./Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1190 (9th Cir. 2002) (“An agency simply may not interpret a regulation in a way that contravenes a statute.“).
The Attorney General charts his course around the statute by arguing that a Notice of Hearing may cure a defective Notice to Appear. The phrase “notice of hearing“—or anything resembling it—does not appear in the law. Rather, the statute refers to a “notice to appear” and a “notice of change in time or place of proceedings” and delineates when each document may be issued and what it must contain. See
Far from silent, the statutе speaks clearly: residence is terminated “when the alien is served a notice to appear.”
Rather than contending, as the Attorney General does, that the statute is silent, the dissent argues that the Dictionary Act,
First, the Supreme Court has held that reliance on the Dictionary Act’s rule regarding “words importing the singular,”
The BIA has reached a conclusion contrary to our holding. Over a vigorous dissent, a closely divided BIA held that “where a notice to appear does not specify the time or place of an alien’s initial removal hearing, the subsequent service of a notice of hearing containing that information perfects the deficient notice to appear, triggers the ‘stop-time’ rule, and ends the alien’s period of continuous residence or physical presence in the United States.” Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (BIA 2019) (en banc). We do not defer to this conclusion for three reasons.
First, the threshold issue addressed by the BIA was whether Pereira definitively resolved whether “subsequent service of a notice of hearing containing [time and place] information perfects the deficient notice to appear, trigger[ing] the ‘stop-time’ rule.” Id. The BIA acknowledged that ”Pereira can be . . . read in a literal sense to reach a different result,” i.e., a result contrary to the BIA’s ultimate holding. Id. Nevertheless, the BIA rejected such a “literal reading” and now the Attorney General invites us to defer to the BIA’s conclusion. But “a reviewing court should defer to an administrative agency only in those areas where that agency has particular expertise.” Ayala-Chavez, 945 F.2d at 294. “There is therefore no reason for courts—the supposed experts in analyzing
Second, the BIA’s analysis is disingenuous. Pereira did not merely “include[] language stating that a notice lacking the specific time and place of the removal proceeding does not equate to a notice to appear under [Section 1229(a)(1)].” Mendoza-Hernandez, 27 I. & N. Dec. at 529–30. Rather, the Supreme Court held that
As the dissenting opinion in Mendoza-Hernandez explained:
The reasoning of the Supreme Court in Pereira . . . leaves little room for doubt that the Court’s decision requires us to follow the plain language of the Act that the DHS must serve a [
8 U.S.C. § 1229(a)(1) ] “notice to appear” that includes the date, time, and place of hearing in order to trigger the “stop-time” rule. The Court in Pereira repeatedly emphasized the “plаin text” of the “stop-time” rule and left no room for agency gap-filling as to whether an Immigration Court can “complete” or “cure” a putative “notice to appear” by subsequent issuance of a “notice of hearing” that would trigger the “stop-time” rule on the date of that event. Quite simply, . . . a “notice of hearing” is not a “notice to appear” and, therefore, it does not satisfy the requirement that the DHS serve a [Section 1229(a)(1) ] “notice to appear” that specifies the date and time of hearing, in order to trigger the “stop-time” rule.
27 I. & N. Dec. at 540–41 (dissenting opinion) (footnote omitted). This rationale accords with our holding above and the plain language of the statute. The lack of ambiguity in the statutory language provides us with yet another reason to “not resort to Chevron deference,” Pereira, 138 S. Ct. at 2113, and to not accord any deference to the BIA’s contrary holding, as it was unmoored from the text, see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982–83 (2005). In so holding, we follow the lead of the Supreme Court’s recent decision in BNSF Railway Co. v. Loos, 139 S. Ct. 893, 899 (2019), which interpreted a statute as we do here—relying on cross-references to similar terms across provisions—without any reference to the agency’s interpretation of the same provision.
Third, to the extent the BIA relied upon the Third Circuit’s holding in Orozco-Velasquez v. Attorney General, 817 F.3d 78 (3d Cir. 2016), or other similar holdings such as Popa, those cases cannot be reconciled with Pereira. The BIA cannot rely on abrogated decisions in hopes of securing deference from the very courts that issued the now-defunct precedent. Such an approach
Thus, we agree with the dissenters in Mendoza-Hernandez and accord no deference to the BIA’s flawed analysis.
Skirting the statutory text, the Attorney General points to purportedly analogous areas of law where an initial defect may be cured by a litigant’s subsequent acts. For instance, Becker v. Montgomery held that an unsigned notice of appeal is timely if signed after the time to appeal has expired. 532 U.S. 757, 760 (2001). But Pereira distinguished Becker, explaining that “omission of time-and-place information is not . . . some trivial, ministerial defect, akin to an unsigned notice of appeal. Failing to specify integral information like the time and place of removal proceedings unquestionably would deprive the notice to appear of its essential character.” Pereira, 138 S. Ct. at 2116–17 (citations, quotation marks, and brackets omitted). Similarly, in Scarborough v. Principi, the Supreme Court held that amendment of a timely application that failed to include a necessary allegation was permissible because the rule requiring specific allegations was aimed, like the signature requirement in Becker, “at stemming the urge to litigate irresponsibly.” 541 U.S. 401, 416 (2004) (quoting Edelman v. Lynchburg Coll., 535 U.S. 106, 116 (2002)). The Scarborough Court went on to explain that “the allegation does not serve an essential notice-giving function,” and so curative amendment was appropriate. Id. at 416-17.
Conversely, the primary function of a Notice to Appear is to give notice, which is essential to the removal proceeding, Pereira, 138 S. Ct. at 2114–15, so the Attorney General’s reliance on Becker, Scarborough, and Edelman is misplaced. Each of those cases allowed litigаnts to correct trivial or ministerial errors. The requirements of a Notice to Appear, however, are “substantive.” Id. at 2116. Substantive defects may not be cured by a subsequent Notice of Hearing that likewise fails to conform with the substantive requirements of
DHS’s ability to issue a Notice that complies with the statute limits the set of cases affected by our holding. Retrospectively, although nearly all Notices to Appear issued between 2015 and 2018 lacked time and date information, see Pereira, 138 S. Ct. at 2111, the Attorney General conceded at oral argument that DHS can reissue complete Notices to Appear to those who have been served defectivе ones. The cases most affected by our holding will be those where a defective Notice to Appear issued so near to when an alien attained the requisite years of residence that DHS cannot reissue a complete Notice to Appear before the statutory period elapses. Prospectively, the Supreme Court noted that software exists that would enable DHS and the Immigration Court to “schedule
In a final attempt to salvage his argument, the Attorney General suggests that Karingithi should inform our decision. But Karingithi addressed whether a defective Notice to Appear vests the Immigration Court with jurisdiction. Karingithi, 913 F.3d at 1160–61. It did not address whether a Notice of Hearing can cure a defective Notice to Appear. Instead, we held that because a regulation properly governs what a notice must contain to vest jurisdiction, the statutory definition of a Notice to Appear did not control. Id. at 1161. As we explained, ”Pereira simply has no application [to the Immigration Court’s jurisdiction]. . . . [T]he only question [in Pereira] was whether the petitioner was eligible for cancellation of removal.” Id. But our decision here is based on the statute’s text, not a regulation, and we are assessing eligibility for cancellation of removal.
Finally, the dicta from the Eleventh Circuit’s unpublished non-precedential opinion in Molina-Guillen v. U.S. Attorney General, 2019 WL 669715 (11th Cir. Feb. 19, 2019), does not alter our conclusion. Not only had the petitioner abandoned the argument that a Notice of Hearing cannot cure a defective Notice to Appear, but Molina-Guillen does not engage the statutory text. Id. at *4. It merely notes that a subsequent “Notice of Hearing, which contained the date and time of the removal hearing, was served on Molina-Guillen . . . . Together, the December 2005 Notice to Appear and the March 2006 Notice of Hearing fulfilled the notice requirements in
CONCLUSION
We hold that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing. The law does not permit multiple documents to collectively satisfy the requirements of a Notice to Appear. Thus, Lorenzo never received a valid Notice to Appear and his residency continued beyond 2008. Accordingly, he has resided in the United States for over seven years and is eligible for cancellation of removal.
Because we hold that Lorenzo’s residence was not terminated, there is no need to opine on his other arguments. Moreover, the question presented here is purely legal, so remand to consider the impact of Pereira is unwarranted. See Ceguerra v. Sec’y of Health & Human Servs., 933 F.2d 735, 741 (9th Cir. 1991) (“[A] purely legal inquiry . . . does not require remand.“); see also Ortiz-Magana v. Mukasey, 542 F.3d 653, 658 n.1 (9th Cir. 2008) (declining to remand where “no additional information would be available that previously was not” and the panel “can resolve the legal quеstion on the basis of available evidence“). Accordingly, we GRANT the petition for review.
CALLAHAN, Circuit Judge dissenting:
I agree with the majority that the United States Supreme Court’s opinion in Pereira v. Sessions, 138 S. Ct. 2105 (2018), incontrovertibly establishes that for a notice to appear to trigger the “stop-time rule,”1 the noncitizen must be provided with the time and
Initially, it should be noted that the majority’s critical holding—that all items listed in
be contained in a single Notice to Appear—was not in issue in Pereira, and accordingly was not directly addressed by the Supreme Court. Pereira enterеd the United States as a temporary “non-immigrant visitor” in 2000. Pereira, 138 S. Ct. at 2112. He was arrested for operating a vehicle while under the influence of alcohol in 2006. Id. In May 2006, the Department of Homeland Security (“DHS“) served him with a “Notice to Appear,” which stated that removal proceedings were being initiated against him for overstaying his visa, but “the notice did not specify the date and time of Pereira’s removal hearing.” Id. More than a year later, DHS attempted to mail Pereira “a more specific notice setting the date and time for his initial removal hearing.” Id. “But that second notice was sent to Pereira’s street address rather than his post office box (which he had provided to DHS), so it was returned as undeliverable.” Id. In 2013, Pereira was arrested for driving without his headlights on and was subsequently detained by DHS. Id. By this time, if the stop-time rule was not triggered by the 2006 notice, Pereira had long sincе accrued the necessary years of continuous physical presence in the United States to be eligible for cancellation of removal. See
(1) In general
In removal proceedings under
section 1229a of this title, written notice (in this section referred to as a “notice to appear“) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying the following:(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory provisions alleged to have been violated.
(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) and (ii) a current list of counsel prepared under subsection (b)(2).
(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under
section 1229a of this title.(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number.
Instead, the Court first narrowed the dispositive question to whether “a ‘notice
From the Pereira holding, the majority leaps to the conclusion that the notice of hearing that Lorenzo subsequently received—that did provide notice of the time and place of his removal proceeding—did not, as a matter of law, cure the defect in the initial notice to appear, and that the only cure is for DHS to issue, now years later, a new “Notice To Appear.” Maj. Op. at 19.
The majority first supports its conclusion not by relying on the Supreme Court’s opinion in Pereira, but by rejecting the Government’s reliance оn our opinion in Popa v. Holder, 571 F.3d 890 (9th Cir. 2009). Maj. Op. at 7-10. But the Supreme Court’s rejection of our holding in Popa that a notice to appear need not contain the time and place of the
(iii) The consequences under
section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph.(G)(i) The time and place at which the proceedings will be held. (ii) The consequences under
section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.
proceedings, says nothing about whether all items listed in
Similarly, the majority’s assertion that the Supreme Court “scrapped the notion that ‘practical considerations’. . . excuse[d] the failure to provide ‘specific time, date and place’ information,” Maj. Op. at 11, again says nothing about whether a notice that fails to provide this information can be cured by a subsequent document that fully providеs specific time, date, and place information.
Instead, the majority asserts that
The majority reads too much into the “use of the singular” in
requirement that the notice be provided within a single document and that a deficiency may not be “cured” by a subsequent notice that includes the previously missing time and place information.
The majority’s cite to United States v. Hayes, 555 U.S. 415, 421 (2009), hardly strengthens the reed because, in my view, the majority’s reliance on “a notice” frustrates, rather than furthers, “Congress’ aim.” Id. at 422 n.5. Furthermore, the Board of Immigration Appeals, sitting en banc, has declined to read the provision as requiring that the “written notice be in a single document.” Matters of Mendoza-Hernandez and Capula-Cortes, 27 I. & N. Dec. 520, 531 (BIA 2019) (en banc).5
The Supreme Court’s concern in Pereira was with noncitizens receiving notification of the time and place of the removal proceedings and not with whether all the information was contained in a single document, entitled “Notice to Appear.” In other words, the court was concerned with the noncitizen receiving the information rather than the form of the notice. Indeed, all the concerns underlying the Supreme Court’s ruling in Pereira are satisfied by a properly served second document that supplements a deficient initial notice. The second notice then provides noncitizens with notice of the time and place of the proceedings that “is the essential function of a notice to appear, for without it, the Governmеnt cannot reasonably expect the noncitizen to appear for his removal proceeding.” Pereira, 138 S. Ct. at 2115. Similarly, such a notice would assure the noncitizen of the opportunity to secure counsel before the hearing. See id. at 2114–15; see also
My reading of Pereira is also the BIA’s position. Mendoza-Hernandez, 27 I. & N. Dec. 520. In reading Pereira, the BIA stressed the Court’s restriction of its ruling to a narrow issue, and its choice not to address the two-part notice process. Id. at 527–28. The BIA noted that the Court “explained that the fundamental purрose of notice is to convey essential information to the [noncitizen], such that
Mendoza-Hernandez, 27 I. & N. Dec. at 531.
the notice creates a reasonable expectation of the [noncitizen’s] appearance at the removal proceeding.” Id. at 531. The BIA held:
We conclude that in cases where a notice to appear does not specify the time or place of [a noncitizen’s] initial removal hearing, the subsequent service of a notice of hearing containing that information perfects the deficient notice to appear, triggers the “stop-time” rule, and
ends the [noncitizen’s] period of continuous residence or physical presence in the United States.
Id. at 529.6 Id. at 535. The BIA further observed that “[n]one of the courts involved in the circuit split had held that service of a subsequent notice of hearing that included time and place infоrmation was insufficient to perfect the notice to appear.” Id. at 534-35.
The majority declines to defer to Mendoza-Hernandez, but the majority’s reasoning is not persuasive. It first suggests that we do not defer to an agency’s interpretation of a Supreme Court opinion. Maj. Op. at 14. True enough, but this does not mean that the position of the agency most effected by a statute does not deserve some consideration. Moreover, as I have explained, my reading of Pereira, although consistent with the BIA’s reading, is in no way
based on the BIA’s decision. Second, the majority asserts that the BIA’s analysis is disingenuous. Maj. Op. at 14. But this is just another way of disagreeing with my perspective and the BIA’s perspective, as demonstrated by the majority’s reliance on the dissent in Mendoza-Hernandez. The majority asserts that there is no ambiguity in the statute, but I find the BIA’s recognition that Pereira can be read in a literal sense to reach a different result to be a fairer description of the overall question. Finally, thе majority argues that the BIA may not rely on prior circuit decisions, such as Popa, because they were abrogated by Pereira. Maj. Op. at 16. But Pereira’s abrogation of cases such as Popa was not a ruling on the two-part notice process at issue in this case.
I continue to read Pereira as allowing for a two-part notice process and find this approach to be consistent with our opinion in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019). Karingithi, like Lorenzo, had received a notice to appear that did not specify the date and time of the removal hearing.7 Id. at 1159. Karingithi argued “that if a notice to appear does not state the time for her initial removal hearing, it is not only defective under
that ‘narrow question’ cannot be recast into a broad jurisdictional rule.” Id. at 1161.
Although Karingithi, as well as Bermudez-Cota, 27 I. & N. Dec. 441, concerned the interpretation of regulations that are not applicable to Lorenzo’s case, the majority, like Karingithi and Bermudez-Cota, seeks to expand the “narrow question” addressed in Pereira into a broad pronouncement. The sounder approach, as reflected in our opinion in Karingithi, and in the BIA’s en banc opinion in Mendoza-Hernandez is to abide by the Supreme
Furthermore, we should not frustrate Congressional intent by expanding Pereira beyond its narrow holding.
I read Pereira as allowing DHS to cure a deficient notice to appear by subsequently providing a noncitizen with actual notice of the time and place of the removal proceedings, with the result that the stop-time rule is triggered upon the noncitizen’s receipt of the supplemental notice. Accordingly, I dissent from the majority’s opinion.
Notes
Title
(a) Notice to appear
The BIA continued:
Rather, it may be provided in one or more documents—in a single or multiple mailings. And it may be served personally, by mail, or by a combination of both, so long as the essential information is conveyed in writing and fairly informs the alien of the time and place of the proceeding.