Karingithi v. Whitaker, 9th. Cir., 01-28-19, Published
PANEL: M. Margaret McKeown, William A. Fletcher, and Jay S. Bybee, Circuit Judges
OPINION BY: Judge McKeown
COURT STAFF SUMMARY:
The panel denied Serah Karingithi’s petition for review of the Board of Immigration Appeals’ denial of relief from removal, holding that a notice to appear that does not specify the time and date of an alien’s initial removal hearing vests an immigration judge with jurisdiction over the removal proceedings, so long as a notice of hearing specifying this information is later sent to the alien in a timely manner.
The Supreme Court recently held in Pereira v. Sessions, 138 S. Ct. 2105 (2018), that a notice to appear lacking the time and date of the hearing before an immigration judge is insufficient to trigger the stop-time rule for purposes of cancellation of removal relief. In light of Pereira, Karingithi argued that a notice to appear lacking the time and date of the hearing was insufficient to vest jurisdiction with the immigration court.
The panel rejected this argument. The panel noted that Pereira addressed the required contents of a notice to appear in the context of the stop-time rule and the continuous physical presence requirement for cancellation of removal under 8 U.S.C. §§ 1229(a), 1229b, but was not in any way concerned with the immigration court’s jurisdiction. The panel held that Pereira’s narrow ruling does not control the analysis of the immigration court’s jurisdiction because, unlike the stop-time rule, the immigration court’s
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
KARINGITHI V. WHITAKER 3
jurisdiction does not hinge on §1229(a). The panel explained that the issue of immigration court jurisdiction is instead governed by federal immigration regulations, including 8 C.F.R. §§1003.13, 1003.14(a),1003.15(b), which do not require that the charging document include the time and date of the hearing.
The panel noted that its reading of the regulations was consistent with the Board’s recent decision in Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), which held that “a notice to appear that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings . . . so long as a notice of hearing specifying this information is later sent to the alien.” The panel also concluded that the Board’s decision in Bermudez-Cota warranted deference.
Because the charging document in this case satisfied the regulatory requirements, and Karingithi received subsequent timely notices including the time and date of her hearing, the panel held that the immigration judge had jurisdiction over the removal proceedings.
The panel declined to consider Karingithi’s argument, in the alternative, that Pereira renders her eligible for cancellation of removal, because cancellation relief was a new claim that was not part of the present petition for review.
The panel addressed the merits of Karingithi’s petition for review of the denial of asylum and related relief in a contemporaneously filed memorandum disposition.
Dear Colleagues,
Today a panel of the Ninth Circuit (McKeown, Fletcher and Bybee) denied a PFR of Serah Njoki Karingithi holding that a notice to appear that does not specify the time and date of an alien’s initial removal hearing vests an immigration judge with jurisdiction over the removal proceedings, so long as a notice of hearing specifying this information is later sent to the alien in a timely manner. In so doing, the panel read Pereira narrowly,finding that it addressed the required contents of a notice to appear in the context of the stop-time rule and the continuous physical presence requirement for cancellation of removal, but was not in any way concerned with the immigration court’s jurisdiction. It also noted that its reading of the regulations was consistent with Bermudez-Cota, and it found that that decision warranted deference.The panel found that the immigration court’s jurisdiction does not hinge on §1229(a). The panel explained that the issue of immigration court jurisdiction is instead governed by federal immigration regulations, including 8 C.F.R. §§1003.13, 1003.14(a),1003.15(b), which do not require that the charging document include the time and date of the hearing.Serah Njoki Karingithi v. Whittaker, Case No. 16-70885, January 28, 2019.Long-time SF immigration lawyer, Ruby Lieberman, represented the Petitioner, and Lonny Hoffman, Professor of Law, University of Houston Law Center, filed an Amicus brief. Representing OIL were Greg Mack, Leslie McKay, Terri Scadron and Joseph Hunt.I assume someone will ask for an en banc hearing.Polly