3RD CIR. TO BIA ON PEREIRA: Tough Noogies, No Chevron Deference For You, Because Your En Banc Precedent Decision In Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019) Is Dead Wrong! — Guadalupe v. U.S. Att’y Gen. — Dissenting BIA Judges Get Some Vindication!

3cirStopTimeopinion

 

Guadalupe v. U.S. Att’y Gen., 3rd Cir., 02-26-20, published

PANEL: RESTREPO, ROTH and FISHER, Circuit Judges

OPINION BY: Judge ROTH

KEY QUOTE:

It is our interpretation of Pereira that it establishes a bright-line rule:

A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under section 1229(a),” and so does not trigger the stop-time rule.”14

The language is clear. Pereira holds that an NTA shall contain all the information set out in section 1229(a)(1). An NTA which omits the time and date of the hearing is defective. To file an effective NTA, the government cannot, in maybe four days or maybe four months, file a second – and possibly third – Notice with the missing information. And it makes sense to have such a bright-line rule: The ability of the noncitizen to receive and to keep track of the date and place of the hearing, along with the legal basis and cited acts to be addressed at the hearing, is infinitely easier if all that information is contained in a single document – as described in

blanks for time and place” but holding that this deficiency was not of jurisdictional significance); Perez-Sanchez v. United States Att’y Gen., 935 F.3d 1148, 1154 (11th Cir. 2019) (citing Ortiz-Santiago, 924 F.3d at 962) (“Under Pereira, . . . a notice of hearing sent later might be relevant to a harmlessness inquiry, but it does not render the original NTA non- deficient.”).

14 Pereira, 138 S. Ct. at 2113-14.

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Case: 19-2239

Document: 67 Page: 8 Date Filed: 02/26/2020

15

Moreover, it seems to us to be no great imposition on the government to require it to communicate all that information to the noncitizen in one document. If a notice is sent to the noncitizen with only a portion of the statutorily required information, a valid NTA can easily be sent later which contains all the required information in one document – at such time as the government has gathered all that information together. The complete NTA would then trigger the stop-time rule.

The government argues, however, that the BIA’s

decision in Matter of Mendoza-Hernandez should be given

Chevron16 deference as a reasonable reading of an ambiguous

statute. There, the BIA relied on Pereira’s position that “the

fundamental purpose of notice is to convey essential

information to the alien, such that the notice creates a

reasonable expectation of the alien’s appearance at the removal

proceeding.” 17 The BIA determined that this purpose can be

served just as well by two or more documents as it could by

18

We conclude, however, that Chevron deference is

15 We do note that in Pereira the Court left “for another day whether a putative notice to appear that omits any of the other categories of information enumerated in § 1229(a)(1) triggers the stop-time rule.” 138 S. Ct. at 2113 n. 5.

16 Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

17 Matter of Mendoza-Hernandez, 27 I. & N. Dec. at 531.

18 Id.

the statute.

one.

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Case: 19-2239 Document: 67 Page: 9 Date Filed: 02/26/2020

inapplicable here because we are not merely interpreting the

19

whether the Supreme Court’s decision in Pereira forecloses

stop-time rule.

our interpretation of the statute in Orozco-Velasquez.

***********************

What does it mean:

    • In the 3rd Circuit, undocumented individuals who have been continuously physically present in the U.S. for at least 10 years prior to receiving a “Pereira-compliant” Notice to Appear” (“NTA”) are exempt from the “stop time” rule for non-lawful-permanent resident cancellation of removal.
    • An “after the fact” Notice of Hearing from EOIR does NOT remedy the “Pereira-defect” in the NTA for purposes of the stop-time rule.
    • Those whose cancellation of removal applications were improperly denied, or who were not given a chance to apply, because of the stop-time rule should be able to reopen their cases. This should add to the “Aimless Docket Reshuffling” and jack up the backlog some more, at least within the 3rd Cir.
    • The 3rd Circuit covers Pennsylvania, New Jersey, and Delaware.
    • This mess was largely self-inflicted by DHS & EOIR. They had many chances to remedy the “Pereira problem’ over the years, but chose not to do so.
    • Meanwhile, we have a Circuit conflict. The 9th Circuit previously had rejected Mendoza-Hernandez in Lopez v. Barr, https://immigrationcourtside.com/2019/05/28/courts-as-bia-continues-to-squeeze-the-life-out-of-pereira-9th-circuit-finally-pushes-back-why-the-lost-art-of-bia-en-banc-review-dissent-is-so-essential-to-due-process/. However, that case was vacated and rehearing en banc was granted. As noted by the Third Circuit, the Sixth Circuit agreed with the BIA. So, wrong as it is, Mendoza-Hernandez will remain in effect except in the Third Circuit, unless and until other Circuits reject it.
    • I would expect the DOJ to find a petition for rehearing in this case, as they did in the Ninth Circuit. That could result in the Third Circuit’s decision being put “on hold.”
    • This split will eventually have to be resolved by the Supremes. But, that’s unlikely to happen until next year.
    • Congratulations and much appreciation to the six BIA Appellate Immigration Judges, led by former Judge John Guendelsberger, who courageously dissented from the en banc decision in Mendoza-Hernandez:
      • Judge John Guendelsberger, author
      • Judge Charles Adkins-Blanch, Vice Chair
      • Judge Patricia Cole
      • Judge Edward Grant
      • Judge Michael J. Creppy
      • Judge Molly Kendall Clark
      • Perhaps not surprisingly, Judges Guendelsberger, Cole, & Kendall Clark have since retired from the BIA.
    • Dissent remains important, if exceedingly rare at today’s BIA, where DOJ politicos and EOIR bureaucrats actively encourage “go along to get along,” pro-regime jurisprudence. Also, en banc decisions are disfavored at today’s BIA.

PWS

02-28-20