JESUS MIGUEL ARREOLA-OCHOA, Pеtitioner, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent.
No. 21-1179
United States Court of Appeals For the Seventh Circuit
ARGUED JANUARY 19, 2022 — DECIDED MAY 17, 2022
Petition for Review of an Order of the Board of Immigration Appeals. No. A206-305-102.
Before WOOD, HAMILTON, and JACKSON-AKIWUMI, Circuit Judges.
I
A
Arreola has been living in the United States without authorization to do so for more than 25 years. He illegally entered the country in March 1996, and he has been here ever since. He and his partner Maria have two children, Elizabeth and Allison. Both Elizabeth and Allison are U.S. citizens by birth, and they live with their parents. In addition, Maria has two daughters from a prior relationship, Areli and Saira, both of whom also live with her and Arreola. Finally, the household includes Saira’s two children and Elizabeth’s one child.
By all accounts, this is a close-knit family. Arreola, who works in the construction industry, is the primary breadwinner. Testimony in the record from Elizabeth described the heartbreak that Arreоla’s removal would cause. More concretely, Arreola would lose the ability to care for his family in critical ways. Health care is one: Maria suffers from severe migraines and some hearing problems, and Elizabeth stated that she has a recurring lung infection. Housing is another: Arreola has been
B
The Department of Homeland Security’s Immigration and Customs Enforcement branch learned about Arreola after he was cоnvicted for driving while intoxicated on July 29, 2015. His initial Notice to Appear was dated August 3, 2015, and was filed with the immigration court on August 14, 2015. It charged that Arreola was inadmissible under
Between 2015 and 2017, DHS notified Arreola several times of the date for his master hearing of several changes in that date. For instance, on August 25, 2015, he received a notice setting the hearing for April 26, 2016. That date sеems to have
The hearing on the merits of the cancellation application was scheduled for July 23, 2018. On July 20, just three days before the hearing, Arreola filed a motion to terminate the removal proceedings on the ground that his initial Notice to Appear did not provide a date and time for his appearance. His motion was prompted by the fact that about a month earlier, the Supreme Court had handed down its decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), which held that a Notice to Appear that lacks time or place information does not suffice to trigger the statutory stop-time rule, under which a noncitizen’s continuous presence in the United States is meаsured for purposes of cancellation of removal. See
The IJ hеld the July 23 hearing as scheduled. The judge then closed the record and set October 1, 2018, as the date for a hearing at which it would rule on Arreola’s two pending motions: the one to terminate and the one for cancellation of removal. At the October 1 hearing, the IJ denied both motions. With respect to the Pereira issue, the judge followed the Board’s decision in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), which held that the agency’s later provision of the missing information cured the violation of
Herе, the record indicates that both of the respondent’s daughters are in good health. Although he has submitted evidence indicating that their mother suffers from hearing loss and that her (Maria’s) daughter has been treated for migraines, neither of them are within the protected class for hardship purposes. Neither daughter appears to have any special educational needs and there is also no evidence of record reflecting the emotional or psychological impact of the respondent’s departure upon them.
Arreola appealed this decision to the Board. By the time the Board resolved the appeal, Elizabeth was too old to serve as a qualifying relative, because she had reached the age of 21. See
II
A
Arreola begins by urging us to revisit our holding in Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), in which we held that “[t]he requirement that a Notice [to Appear] include, within its four corners, the time, date, and place of the removal proceeding is not ‘jurisdictional’ in nature. It is instead the agency’s version of a claim-processing rule, violations of which can be forfeited if an objection is not raised in a timely manner.” Id. at 958. In so holding, we took note of the fact that
Arreola is far from the first person to ask us to revisit this holding. See, e.g., De La Rosa v. Garland, 2 F.4th 685, 687 (7th Cir. 2021); Mejia-Padilla v. Garland, 2 F.4th 1026, 1032–33 (7th Cir. 2021). Moreover, he has not offered a compelling reason for us to do so. Nothing the Supreme Court said in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), undermines our position. That case concerned the distinct question whether a flawed Notice to Appear could be saved by a later document that fills in the time-and-place blanks; the Supreme Court said no. The Court had no occasion to address the question whether a Notice that omits time and place is insufficient to vest the immigration court with authority over the case, or if those оmissions have a lesser consequence.
Our sister circuits agree with us that the time-and-place rules are not jurisdictional. As our colleagues in the Fifth Circuit said in Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), there has been an “overwhelming chorus” from the circuits rejecting (on varying rationales) the proposition that Pereira requires the dismissal of any case that was initiated with a Notice to Appear that lacked time-and-place information. Id. at 689 (citing cases). Pierre-Paul expressly agreed with our characterization of the governing regulation,
Attempting to avoid this wall of adverse authority, Arreola argues that even if
The proper inquiry in an immigration case does not turn on thе mere
B
Anticipating that we were likely to adhere to Ortiz-Santiago, Arreola takes the back-up position that he objected to the omission of the time-related information in a timely fashion and is therefore entitled to relief. This presents us with a difficult quеstion of line-drawing. No one would doubt that an objection made within a week of receiving the defective Notice to Appear is made in a timely way, just as no one would doubt that an objection that showed up for the first time in the court of appeals is too late. The outer limits, we think, must fall between the earliest day possible after receipt of the Notice, on the one end, and thе conclusion of proceedings before the immigration court, on the other. Our prior cases confirm that objections raised after the termination of immigration-court proceedings are too late, see, e.g., Meraz-Saucedo v. Rosen, 986 F.3d 676, 683 (7th Cir. 2021), though we have not defined a bright-line moment during proceedings at which a claim moves from timely to untimely.
The immigration laws provide little guidance that would help us to choosе such a fixed point. Classically, in that situation courts say that the act at issue (here, filing an objection to a defective Notice) must be done within a reasonable time. See, e.g., Nunez v. Dautel, 86 U.S. 560, 562 (1873) (deciding what would be a reasonable time for making a payment after a promise to pay); Louisville Mfg. Co. v. Welch, 51 U.S. 461, 474 (1850) (notice given under a letter of credit regarding the amount a guarantor must cover should be communicated within a rеasonable time, and “[w]hat is a reasonable time must depend upon the circumstances of each particular case“); see also United States v. Irvine, 511 U.S. 224, 234 (1994) (tax-free disclaimer must be made within a reasonable time of knowledge of a transfer, bearing in mind that the gift tax was intended “to curb avoidance of the estate tax“). That is essentially a factual question, though as Irvine noted, one that is informed by the laws and intеrests at issue in the case.
Like these earlier examples, the statute now before us calls for a holistic and circumstance-specific analysis of timeliness. It is true that the Supreme Court sometimes creates presumptive time deadlines. See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (finding that a judicial determination of probable cause that occurs within 48 hours of arrest is speedy enough). But that strikes us as inappropriate for a lower court to do in the
- how much time passed, in absolute terms, between the receipt of the Notice and the raising of the objection;
- did the immigration court set a schedule for filing objections, and did the objection comply with that schedule;
- how much of the merits had been discussed or determined prior to the objectiоn?
Some of these considerations are also useful in judging whether the untimeliness of an objection should be excused, if the noncitizen were to pursue this path to relief. Factors relevant to excuse and prejudice might include the following:
- if the recipient does not speak English, did she object promptly after receiving adequate translation services and notice;
- did the person havе legal counsel at the outset, and if she obtained counsel only later, did counsel object promptly after entering the case;
- did the noncitizen file any prior objections but omit this objection?
We stress again that these are not an exhaustive list of considerations bearing on the question of timeliness, excuse, and prejudice. Other considerations may carry weight in future cases.
A number of thеse points are adverse to Arreola. For example, he did not respond promptly to his Notice to Appear. By August 14, 2015, the Notice had been filed with the immigration court; he had his master hearing on August 2, 2017; and he raised this objection only on July 20, 2018, almost three years after the proceedings were initiated and just three days before his merits hearing was scheduled to start. That is a long time by anyone’s measure. Even so, it might be justifiable if the objection were made at or reasonably soon after the master hearing, especially if the master hearing occurred shortly after the original Notice. That was not the case here, however; Arreola’s master hearing took place a full year before he raised this objection. This consideration weighs in favor of finding his objection untimely.
On the other hаnd, some points favor him. Arreola did not disregard any filing schedule. So too, the IJ had not yet discussed—much less decided—the merits as of the time of his objection. But Arreola’s objection came very close to the last minute—he raised it on the Friday before the Monday merits hearing. This undercuts what would otherwise be a strong reason to find in his favor. Given the last-minute nature of his objection, along with the facts that it tоok him three years to raise the claim and that he had access to counsel and translation services, we conclude that he did not make a timely objection.
That puts him on the second path we identified earlier, under which he can prevail only if his lateness is excusable and he can show prejudice flowing from the omission of the time and place information in his Notice. We conclude that he has not met that burden. Arreola argues that he did not realize that the flawed-notice argument was available until Pereira was decided.
Furthermore, even if Arreola’s untimeliness were excused, one cannot find on this record—indeed, Arreola does not even allege—prejudice stemming from the defective Notice. He was aware of both the times and places of his hearings and actively participated in them. There is no evidence that he went to the wrong place, had the wrong time, missed any hearings, had difficulty presenting witnesses or some other evidence, or encountered any other problem that the omission of this information in the Notice might have caused. Prejudice in this situation does not have to be much (i.e., a petitioner need not go so far as to show that the IJ’s ultimate decision would have been different absent the defect), but it must be something. We therefore find that the error in the Notice does not justify setting aside these proceedings and requiring DHS to start over (should it choose to do so).
III
On the merits, Arreola contends only that the Board erred in its determination that his removal would not result in “exceptional and extremely unusual hardship” to his minor U.S.-citizen daughter Allison. See
We must defer tо the Board’s handling of this type of mixed question of law and fact. We readily accept that Arreola and his family will be devastated if he is removed—and that is true whether Arreola must go back to Mexico by himself or whether he takes his family with him. But that consequence is regrettably common in these cases. The Board was entitled to find, as it did, that there is nothing “exceptional” and “extreme” about the impact his removal will have on Allison, the qualifying U.S.-citizen family member. Arreola pleads that his family is especially close, but he does not point to anything more concrete
* * *
We DENY the petition for review.