La Parra De Leon v. GarlandLa Parra De Leon v. Garland
Lidia M. Sanchez, for petitioner.
Kristin Macleod-Ball and Trina Realmuto on brief for National Immigration Litigation Alliance, Political Asylum/Immigration Representation Project, American Immigration Lawyers Association, and American Immigration Council, amici curiae.
Elizabeth K. Fitzgerald-Sambou, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, with whom Brian M. Boynton, Principal Deputy, Assistant Attorney General, Civil Division, and John W. Blakeley, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
I.
Laparra-Deleon entered the United States without inspection in or around January 2002. More than six years later, in July 2008, he was served with a document from the U.S. Department of Homeland Security (“DHS“). The document charged him with removability under
Nearly two years later, the Immigration Court in Boston sent Laparra-Deleon another document. This document informed him that the removal proceedings “ha[d] been scheduled for a MASTER hearing before the Immigration Court on Apr[il] 8, 2010 at 1:30 P.M.” in Boston. The document was returned as undeliverable to the Immigration Court. Laparra-Deleon did not appear at the “hearing” referred to in the document from the Immigration Court. For that reason, he was ordered removed in absentia pursuant to
[a]ny alien who, after written notice required under paragraph (1) or (2) of
section 1229(a) of this title has been provided to the alien or the alien‘s counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the [INS] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable . . . .
8 U.S.C. § 1229a(b)(5)(A) .
Paragraph (1) of
The petition for review before us here challenges Laparra-Deleon‘s order of removal in absentia based on the way that the Supreme Court‘s decisions in Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), construe
The “stop-time” rule matters because, to be eligible for cancellation of removal, a noncitizen must have resided or been physically present in the United States for a certain period. See
Pereira and Niz-Chavez each concerned whether a noncitizen had received the “notice to appear” to which
Pereira came first and addressed whether a document that DHS served on a noncitizen that charged the noncitizen with removability constitutes a “notice to appear” if it provides only that the date and time of day of the noncitizen‘s removal proceedings are “to be set.” Pereira, 138 S. Ct. at 2113-15. Pereira holds that such a document does not constitute a “notice to appear” under
Niz-Chavez came next and addressed a question that Pereira had left open. There, the noncitizen had been served with a document that charged him with removability but did not itself constitute a “notice to appear” under
The Court held that the two documents together did not constitute a “notice to appear” under
Based on those two rulings, Laparra-Deleon filed a motion to reopen in 2021 with the BIA with respect to his order of removal in absentia. The petition for review that is before us here arises from the BIA‘s denial in 2022 of that motion to reopen, which had followed earlier related motions that Laparra-Deleon had filed either to terminate his removal proceedings or, in the alternative, to vacate his removal in absentia order but that had been denied by the Immigration Judge and the BIA.
In the 2021 motion filed by Laparra-Deleon with the BIA out of which the present petition for review arises, Laparra-Deleon relied on Pereira and Niz-Chavez in part to support his request to reopen to terminate his removal proceedings on the ground that the Immigration Court did not have jurisdiction over those proceedings. He argued in the motion that,
Laparra-Deleon also relied on Pereira and Niz-Chavez in his motion to the BIA, however, to request in the alternative that the BIA reopen and rescind his order of removal in absentia, even if jurisdiction had vested over the removal proceedings by virtue of the combination of documents that he had received from DHS and the Immigration Court. In pressing this contention, Laparra-Deleon trained his focus on
Laparra-Deleon asserted that, given Pereira and Niz-Chavez, he had not been served a “notice to appear” under
The BIA ruled otherwise. See Matter of Laparra-Deleon, 28 I. & N. Dec. 425. The BIA held that because
Laparra-Deleon now petitions for review of the BIA decision.
II.
We begin with Laparra-Deleon‘s challenge to the BIA‘s denial of his motion to reopen to terminate his removal proceedings. As we have explained, Laparra-Deleon argued to the BIA in that motion that he was entitled to termination of his removal proceedings in part because the Immigration Court lacked jurisdiction over such proceedings. And, as we also have explained, the BIA denied Laparra-Deleon‘s motion to reopen to terminate by rejecting this jurisdictional argument.
The government argues that Laparra-Deleon has waived the jurisdictional argument to us because he failed to raise it in his petition for review. But, we understand Laparra-Deleon in challenging the BIA‘s denial of his motion to reopen to terminate his removal proceedings in his petition for review to be challenging the BIA‘s jurisdictional ruling. Nonetheless, we have held that there is no jurisdictional bar to removal proceedings in a case like this one. See Goncalves Pontes v. Barr, 938 F.3d 1, 7 (1st Cir. 2019). Accordingly, we deny Laparra-Deleon‘s petition for review insofar as it takes aim at the BIA‘s denial of his motion to reopen to terminate his removal proceedings.
III.
Laparra-Deleon also challenges the BIA‘s denial of his motion in the alternative to reopen and rescind his removal order in absentia. In that challenge, he contends, as he did in the underlying motion to the BIA, that neither the document that charged him with removability that DHS served on him nor the subsequent document that the Immigration Court sent to him that informed him of the date and time of day of his removal proceedings constituted the “written notice” that is “required under paragraph (1) or (2) of
We review the BIA‘s denial of the motion to reopen for abuse of discretion. See Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015). Here, as we have explained above, the BIA‘s denial of the motion turns entirely on the BIA‘s interpretation of what constitutes “notice” under paragraph (2), which is a purely legal question that we review de novo. See Adeyanju v. Garland, 27 F.4th 25, 38 (1st Cir. 2022).
To determine whether the BIA permissibly construed this key phrase in concluding that Laparra-Deleon did receive the requisite notice to be ordered removed in absentia for failing to appear at his removal proceedings, we apply the two-step test set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Under step one, we must determine whether Congress spoke clearly to the precise question before us. Id. at 842. If so, that is “the end of the matter.” Id. If not, then we move to step two, where we defer to the BIA‘s interpretation of the statutory provision if it is reasonable. Id. at 843.
To be “written notice
The BIA concluded that the document did constitute such “written notice.” See Matter of Laparra-Deleon, 28 I. & N. Dec. at 434. But, in light of how Pereira construes the relevant words in
[b]y allowing for a “change or postponement” of the proceedings to a “new time or place,” paragraph (2) presumes that the Government has already served a “notice to appear under
section 1229(a) ” that specified a time and place as required by§ 1229(a)(1)(G)(i) . Otherwise, there would be no time or place to “change or postpon[e].”138 S. Ct. at 2114 (alteration in original) (emphasis added) (quoting
8 U.S.C. § 1229(a)(2) ).
By concluding that “there would be no time or place to ‘change or postpon[e]‘” unless a “notice to appear” under
Notably, the BIA does not address this passage from Pereira. It thus fails to explain how, given Pereira‘s reasoning, the “change” in the “time” of the removal proceedings that is referred to in
The BIA does emphasize that
But, the fact that Congress chose to use the disjunctive “or” in
The government, unlike the BIA itself, also makes a number of additional arguments for sustaining the BIA‘s ruling that rely on assertions about the relevant statutory text. But, even assuming that we may treat those arguments as ones that the BIA itself embraces, none of them provides a basis for upholding the BIA‘s ruling.
The government first points to dictionary definitions of “change” that it contends support the conclusion that “change” can be from nothing to something, and so need not be from something to something else. But, even if we were to assume that the dictionary definitions that the government invokes were supportive of its contention about what the word “change” could mean in some contexts, the government does not offer any basis for concluding that, after Pereira, “change” in
The government next argues that the word “any” in the phrase “in the case of any change or postponement in the time and place of such proceedings,” see
Finally, the government contends that the presence of the word “postponement” would be rendered superfluous unless “change” were read to include the initial setting of the “time” of removal proceedings. But, the government makes no attempt to explain how such a reading squares with the way Pereira necessarily reads “change,” and Pereira aside, the claimed superfluity is illusory. After all, a “change” could be to the place of the proceedings and not only its time, which is not true of a “postponement.” In addition, unlike a “postponement,” a “change” in theory could move the time of a hearing previously set forth in the “notice to appear” to be earlier, rather than later, than the initial time.
In addition to the unpersuasive textual arguments just canvassed, the government also appeals to statutory purposes to support the BIA‘s ruling. But, here too, we are not convinced.
The government‘s first purpose-based contention is rooted in a claim that “[s]tatutory history” demonstrates Congress‘s intent to “restrict[] relief from in absentia orders of removal” in part by limiting “noncitizens’ ability to reopen removal proceedings.” The government‘s second purpose-based contention is that Congress did not want to prevent removal in absentia in cases when a noncitizen received information about the time and place of hearings and the consequences of failing to attend. See also Dacostagomez-Aguilar, 40 F.4th at 1318 (holding that the interpretation of paragraph (2) that Laparra-Deleon urges us to adopt would permit “relief after a perfectly noticed hearing because an alien did not receive notice of an earlier hearing at which he was not ordered removed“).
But, the Supreme Court rejected similarly purpose-based arguments against the reading that it concluded the text demanded in Pereira, and so we do not see how we may credit them here. See 138 S. Ct. at 2118-20. We note, too, that in Niz-Chavez the Court recognized that Congress may have wanted to ensure that noncitizens would not have to deal with “a mishmash of pieces with some assembly required.” 141 S. Ct. at 1480.
The government‘s last attempt to support the BIA‘s ruling is not in fact a defense of the conclusion that the document from the Immigration Court constituted
IV.
For these reasons, the petition for review is denied in part, and granted in part, and the case is remanded for further proceedings consistent with this opinion.