https://www.jeffreyschase.com/blog/2018/9/1/the-bia-vs-the-supreme-court

The BIA vs. the Supreme Court?

Although it hasn’t caught the attention of the public or the media, the Supreme Court’s June 21 decision in Pereira v. Sessions has inspired immigration lawyers this summer, giving reason to hope and dream.  Unfortunately, the case’s importance gets lost in the details to those not proficient in the field of immigration law.  The issue that the Supreme Court agreed to decide was a narrow one: whether a Notice to Appear (i.e. the document that must be served by DHS on the Immigration Court in order to commence removal proceedings) that lacks a time and a date of the initial hearing is sufficient to invoke the “stop-time rule” that would prevent a noncitizen from accruing the 10 years of continuous presence in the U.S. needed to apply for a relief from deportation called cancellation of removal.  If you are a layperson, I’m sure I’ve already lost you.  But read on, as what preceded doesn’t really matter for purposes of our discussion; the important part is yet to come.

BIA precedent decisions that are subpar in their rationale are often upheld by circuit courts because of something called Chevrondeference.  Chevron refers to a 1984 Supreme Court case requiring courts to defer to the interpretation of statutes by federal agencies that are specifically charged with administering the statute in question.  The Board of Immigration Appeals is a part of one of the agencies (EOIR) charged with administering immigration laws; therefore, under Chevron, its decisions are owed deference by the circuit courts, even if those courts disagree with the BIA’s decision or would have reached a different outcome themselves.  But before such deference is owed, the decision must pass a two-step test.  First, the reviewing court must find that the statute the BIA is interpreting is ambiguous.  This is important, because if the statute is clear on its face, there is no basis for the agency to have to interpret that which needs no interpretation.  Only if the court determines that the statute is in fact ambiguous does it apply the second step of the test, which is whether the agency’s interpretation is reasonable.

I’m pretty certain that I’ve lost even more readers in the preceding paragraph.  I thank those of you who are still with me for your patience.  In Pereira, the statute involved is section 239(a) of the Immigration and Nationality Act, which states what information the Notice to Appear (i.e. the document needed to commence removal proceedings) must contain.  In a 2011 precedent decision, the BIA had interpreted that statute to mean that the time and date of the initial hearing were not critical elements, and that their inclusion was not required to trigger the stop-time rule.  Six federal circuits accorded Chevron deference to the BIA’s interpretation.  The lone exception was the Third Circuit.  The Supreme Court agreed to hear the case to resolve this split.  In an 8-1 decision (in which even Justice Gorsuch, Trump’s appointee, joined the majority), the Court sided with the Third Circuit.  The Court explained that no Chevrondeference was due because the statute was crystal clear, as it said in no uncertain terms that a time and a date are among the information a Notice to Appear must contain.

Finally, here is the really important part.  In its decision, the Supreme Court stated that a notice that does not contain a time and date of hearing “is not a notice to appear” under section 239(a).  The highest court in the land did not say that it is not a notice to appear only for some narrow purpose; it bears repeating that it said without such information, the document is not a Notice to Appear.

Those of you who are still reading might feel let down about now.  You’re saying “That’s it?  Where is the big payoff I was promised?  I’ll never get those three minutes of my life back that I just wasted reading jibberish about some kind of stopping rule that I still don’t understand.”  So here is where I hope I make it worthwhile.  All of us immigration lawyers read the above sentence and instantly thought the same thing: if the Supreme Court just said that a notice without a time and date is not a Notice to Appear, than almost every one of our collective clients were never properly put into removal proceedings.  The Supreme Court decision mentioned that when asked what percentage of NTAs issued in the past three years lacked a time and a date, the government responded “almost 100 percent.”  There are presently close to 750,000 cases pending before immigration courts, and there were hundreds of thousands of cases already decided by those courts over the past 15 or 20 years that also involved NTAs missing the time and date.  And the courts are now going to have to find that nearly all of those proceedings were invalid.  Old removal orders will have to be reopened and terminated.  Almost all pending cases will have to be terminated.  Although DHS will at least intend to restart all of those hearings over by now serving each individual with an NTA that does contain a time and date, how long might that take to accomplish?  And even if they are placed into proceedings again, those who were previously denied relief get a second chance.  Perhaps this time with a different judge, a better lawyer, and more equities in their favor?

So in a year in which the Attorney General has tried to remake immigration laws to his own liking, and continues to assault the independence of the only judges he directly controls;  in which children have been unapologetically separated from their parents at the border, in which victims of domestic violence have been told the rapes and violent abuses they have suffered are will get them no protection in the U.S.A., Pereira allowed us to dream of pushing a “restart” button, a “do-over.”  Attorneys began filing motions to terminate.  The response of immigration judges was mixed, with some agreeing with the argument and terminating proceedings; while others said no, Pereira was only meant to apply to the narrow technical issue of the “stop-time” rule, and not to the broader issue of jurisdiction.

Of course, the BIA needed to weigh in on this issue.  I had no doubt that the Board would rule with the latter group and find that proceedings need not be terminated.  And of course, on Friday, that’s just what they did.  The response from the legal community has been one of outrage.  First of all, it normally takes 18 months or longer for the BIA to issue a precedent decision; it can sometimes take them many years.  Here, the Board issued its decision in two months.  As one commenter pointed out, it reads like a college freshman paper written at midnight.  Considering the importance of the issue, the Board truly abandoned its legal responsibility by cranking out such a poorly written decision that fails to address (much less adequately analyze) most of the major issues raised by Pereira.

While I could go on and on with what is wrong with the BIA decision (issued on a Friday afternoon before the Labor Day weekend, the better to sneak under the radar), I’ll just focus here on one point.  The decision (written by Board Member Molly Kendall Clark), cites the applicable regulation (8 C.F.R. section 1003.14(a)), which states that “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.”  As background, another section of the regulations defines “charging document” to include a “Notice to Appear.”  The documents in question here all purport to be Notices to Appear, and do not meet the definition of any other charging document described in the regulation.  Kendall Clark writes that the regulation does not specify what information must be contained in the charging document at the time it is filed with the Immigration Court, “nor does it mandate that the document specify the time and date of the initial hearing before jurisdiction will vest.”

Really?  Because the U.S. Supreme Court just said, very clearly, that a notice lacking a time and date of hearing is not a Notice to Appear.  How is it OK for the BIA to just ignore a crystal clear holding of the Supreme Court?

The answer is that in the mind of the BIA’s judges, the Supreme Court doesn’t have the ability to fire them, while the Attorney General does.  The other truth is that while BIA judges have been removed under Republican administrations for being too liberal, none has ever suffered any consequences under Democratic administrations for being too conservative.  Although I’m in the liberal camp, I’m not saying that the BIA is not entitled to reach a conservative conclusion.  But it can’t so blatantly disregard the law (in particular, a decision of the Supreme Court) out of self-preservation or political expediency.

The next step will be appeal of the issue to the various circuits.  In light of Pereira, there should be no Chevron deference accorded to the Board’s latest decision.  However, should another circuit split result, this issue may end up before the Supreme Court again.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

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Here’s a copy of the BIA’s precedent decision in

Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018):

3935

Want to see a better, more logical approach that would have honored the Supremes’ reasoning in Pereira? Here’s a succinct, well-reasoned opinion from Judge Elizabeth Young of the San Francisco Immigration Court that refutes each ICE argument and shows why the BIA’s approach in Bermudez is likely to be rejected by at least some  Circuit  Courts.

IJ ORDER – SF IJ terminated under Pereira – very clear reasoning – Nameless

(Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this along.)

That no BIA Appellate Immigration Judge was willing to argue the much more logical and legally defensible approach presented in Judge Young’s decision illustrates how little real deliberation or debate remains at today’s BIA. Basically, a deliberative tribunal that no longer dares or cares to publicly deliberate in setting precedents and that decides the vast majority of non-precedent cases as “panels of one.”

As Jeffrey points out, the BIA and ICE appear to be on self-created course for a potential “Pereira II.” That, in turn, could result in hundreds of thousands of cases being subject to remand or reopening for termination. On the other hand, if ICE just reserved the NTA now, as suggested at the end of Judge Young’s opinion, the whole problem could largely be avoided. Go figure!

Yet another example of how the backlog is unlikely to diminish as long as the Immigration Courts remain in DOJ, and particularly with Jeff Sessions as the AG.

PWS

09-02-18