NARROWING PRECEDENT: EXECUTIVE BRANCH SUBVERSION OF SUPREME COURT PRECEDENT AND HOW IT AFFECTS YOUR IMMIGRATION CASE

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If you or someone you know has been placed into removal proceedings, chances are that you have heard of a “Notice to Appear” (or “NTA”). An NTA is the charging document that signals the initiation of removal proceedings against the named recipient and mandates appearance on a specific date at a specific location.

Last June, the Supreme Court of the United States held in Pereira v. Sessions, 138 S. Ct. 2105 (2018), that if “[a] putative notice to appear fails to designate the specific time or place of the noncitizen’s removal proceedings . . .”  then the same does not constitute a “notice to appear under [8 U.S.C. § 1229(a)].” This was a major win for immigrants, as the Federal government had made a habit out of issuing slews of NTAs without specifying the time or place of the removal proceedings. According to the government “almost 100 percent” of NTAs issued during the three years preceding Pereira did not include the time and date of the proceeding. See Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018)

In the year since the Supreme Court’s decision, the Board of Immigration Appeals (“BIA”) has seemingly made the narrowing of Pereira one of its chief goals. The BIA is an immigration appellate body controlled by the Attorney General and the Executive Branch. There is no judicial independence in the BIA or with the Immigration Judges, and these adjudicators are therefore particularly prone to political manipulation. Impartiality is also a problem, as nearly all new Immigration Judges are former DHS prosecutors. Immigration Judges are pressured by EOIR management, including the Attorney General, to complete quotas, refuse requests for continuances for individual hearings, and to avoid getting reversed by the BIA. To make matters worse, the immigration backlog continues to increase. Perhaps in an effort to help out the Immigration Judges, or perhaps for their own political expedience, the BIA has issued several decisions “distinguishing” Pereira, which had the potential to increase the immigration backlog even further due to the plethora of insufficient NTAs issued.

The first such decision came in the form of Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), decided just two months after the U.S. Supreme Court’s Pereira decision. In Bermudez-Cota, the BIA determined that a notice to appear that fails to specify a time and place of the removal hearing meets the requirement of 8 U.S.C. § 1229(a) so long as a notice of hearing specifying this information is later sent to the individual named in the NTA. The BIA distinguished Bermudez-Cota from Pereira by pointing out that the Pereira NTA requirement pertained only to the issue of continuous presence and the stop-time rule (for cancellation of removal defenses), and that jurisdictional requirements of an NTA instead vested in 8 C.F.R. §§ 1003.13, 1003.14(a), and 1003.15(b), which do not require the charging documents to include the time and date of the hearing. The Bermudez-Cota decision has so far won discretion from  the Sixth and Ninth Circuits. However, it has yet to be considered by the Supreme Court.

The BIA in Matter of Mendoza-Hernandez; Matter of Capula-Cortes, 27 I&N Dec. 520 (BIA 2019), went a step further than Bermudez-Cota in determining that a subsequent hearing notice perfects a prior deficient NTA even in the case of the “stop-time” rule for cancellations of removal. Federal Circuit Courts have yet to weigh in on this decision. Because this ruling involves the “stop-time” rule, we can expect the appellate courts to pay greater attention.

Even more recently, on May 22, 2019, the BIA issued decisions in the Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019) and Matter of Miranda Cordiero, 27 I&N Dec. 551 (BIA 2019), which both further narrow and distinguish the Supreme Court’s Pereira decision. In Pena-Mejia, the BIA found that where there is a deficient NTA as specified in Pereira, a rescission of an in absentia order of removal or termination of proceedings is not required as long as a subsequent notice of hearing specifying that information was properly sent to the individual. A similar conclusion resulted in Miranda-Cordiero even where the individual in proceedings did not receive the subsequent notice of hearing since the said individual failed to provide an address where the subsequent notice could be sent.

The narrowing of the Pereira decision by the BIA over the past year renders Pereira essentially meaningless now that the government can simply issue thousands of new “notices of hearings” to correct prior deficient NTAs rather than issue new NTAs. However, in light of these decisions, the best practices for someone who has just been placed into removal proceedings  is to do the following with respect to their NTAs:

  1. Consult an immigration attorney to review your Notice to Appear for substantial deficiencies, including no specification to the date, time, or location. See Pereira v. Sessions, 138 S. Ct. 2105 (2018);

 

  1. Provide the Court with your address so that DHS cannot argue that that your failure to receive a notice of hearing is your fault. See Miranda-Cordiero, 27 I&N Dec. 552 (BIA 2019);

 

  1. If you never receive an updated hearing notice, document the lack thereof to use as evidence to fight adverse rulings. See Miranda-Cordiero, 27 I&N Dec. 552 (BIA 2019);

 

  1. If you did receive an updated hearing notice, consult with an immigration attorney to determine whether the updated hearing notice can be exploited for deficiencies; and

 

  1. Pray that the Supreme Court overturns the BIA’s recent decisions.

 

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Phil Kuck

Associate Attorney

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