MIRANDA-CORDIERO
FOR RESPONDENT: Renee LaRosee, Esquire, Elizabeth, New Jersey
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member:
In a decision dated January 9, 2018, an Immigration Judge denied the respondent’s motion to sua sponte reopen her removal proceedings. The respondent has appealed from that decision.1 The appeal will be dismissed.
The respondent is a native and citizen of Brazil who entered the United States on March 8, 2005, without being admitted or paroled. At that time, she was personally served with a Notice to Appear (Form I-862) ordering her to appear for a hearing before an Immigration Judge in San Antonio, Texas, at a date and time to be set. The respondent refused to provide an address at which she could be contacted during the removal proceedings.2 When she did not appear for her hearing on May 11, 2005, the Immigration Judge ordered her removed in absentia pursuant to section 240(b)(5) of the Immigration and Nationality Act,
On appeal, the respondent argues that the Immigration Judge erred in stating that a provisional waiver of unlawful presence is available to her despite her outstanding in absentia order of removal and in providing no analysis for his finding that she did not present exceptional circumstances. In addition, the respondent relies on the intervening decision of the Supreme Court in Pereira v. Sessions, 138 S. Ct. 2105 (2018), to assert that her notice to appear was invalid because it did not contain a specific date and time for her initial removal hearing, as required by section 239(a)(1)(G) of the Act,
We will first address the respondent’s argument regarding Pereira. The Supreme Court in Pereira, focused on the question whether a notice to appear that lacks a specific time and place of hearing triggers the “stop-time” rule for purposes of cancellation of removal under section 240A(d)(1)(A) of the Act. Pereira, 138 S. Ct. at 2113 (stating that the question before the Court was “narrow”). It did not hold that such a deficient notice to appear is invalid for all purposes, including for initiating removal proceedings. Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018); see also Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520, 523–24 (BIA 2019).
The regulations at
Furthermore, rescission of the respondent’s in absentia order of removal is not mandated by Pereira. In contrast to the provisions of the Act at issue
In this case, a notice to appear was personally served on the respondent, in which she was advised of her obligation to “notify the Immigration Court immediately” any time she changed her address during the course of the removal proceedings. See also
Under section 240(b)(5)(B) of the Act, if “an alien has failed to provide the address required under section 239(a)(1)(F),” no written notice of the hearing is necessary to order the alien removed in absentia under section 240(b)(5)(A), which, as noted, permits notice under section 239(a)(1) or (2). Because the respondent refused to provide an address after she was advised of her obligation to do so in the notice to appear, notice of the time and place of her hearing was not required under either section of statute, so in absentia proceedings were appropriate.
In contrast, the alien in Pereira provided his correct address and established that he did not receive a notice of hearing. Pereira is also distinguishable from the respondent’s case because she did not apply for cancellation of removal in 2005 and she was ordered removed by the Immigration Judge for reasons unrelated to the operation of the “stop-time” rule. Under the circumstances of this case, therefore, we conclude that the Supreme Court’s decision in Pereira is distinguishable and does not require that the respondent’s in absentia order of removal be rescinded or that her proceedings be terminated. See Matter of Pena-Mejia, 27 I&N Dec. 546, 550 (BIA 2019) (stating that Pereira “is inapplicable outside of the narrow context of the ‘stop-time’ rule” of section 240A(d)(1) of the Act, which is distinct from the rules regarding failure to appear in section 240(b)(5)(A)).
Our holding is supported by the circuit courts that have considered the implications of Pereira in the context of in absentia proceedings. In Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 (5th Cir. 2018), the United
The Sixth Circuit also addressed a situation involving an in absentia order of removal in Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019). The alien there argued that under Pereira, his notice to appear, which did not specify the date and time of the hearing, did not vest jurisdiction in the Immigration Court. Rejecting that assertion, the court found that Pereira is distinguishable because it “(1) dealt with whether the narrow ‘stop-time’ rule can be triggered by [a notice to appear] omitting the time and place of the initial hearing, and (2) addressed two statutory provisions distinct from the regulations at issue.” Id. at 489. The court also stated that the statute “does not address jurisdictional prerequisites” and that the regulations governing when and how jurisdiction vests with the Immigration Judge do not require references to the time and place of the hearing to vest jurisdiction. Id. at 490–91. Relying on section 240(b)(5)(A) of the Act, the court held that rescission of the alien’s in absentia order of removal was not warranted because the notice of hearing mailed to him at his listed address met the requirements of section 239(a)(2) regarding notice of the time and place of the hearing. Id. at 491–92; see also Molina-Guillen v. U.S. Att’y Gen., 758 F. App’x 893, 898–99 (11th Cir. 2019) (per curiam) (distinguishing Pereira where the alien received a notice of hearing supplying the missing date and time information, which together with the notice to appear “fulfilled the notice requirements” in section 239(a)(1) of the Act).
In regard to the denial of her motion to reopen sua sponte, the respondent argues that the Immigration Judge erred in stating that a provisional waiver of unlawful presence is available to her through the USCIS despite her outstanding in absentia order of removal. She further asserts that the Immigration Judge provided no analysis for his finding that she did not establish exceptional circumstances to warrant sua sponte reopening.
Whether proceedings should be reopened sua sponte is a discretionary determination to be made based on the totality of circumstances presented in each case. The respondent argued in her motion to reopen that she and her
Upon our de novo review, we find that the respondent’s case does not present an exceptional situation that warrants the exercise of discretion to reopen sua sponte, regardless of the availability of a provisional waiver.3 Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (stating that the power to reopen sua sponte “is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship”). Accordingly, we agree with the Immigration Judge’s decision denying the respondent’s motion to sua sponte reopen her in absentia removal proceedings, and we will dismiss her appeal.
ORDER: The appeal is dismissed.