Goncalves Pontes v. Barr ( 2019 )

United States Court of Appeals
For the First Circuit
No. 19-1053
DANIELSON MENDES GONCALVES PONTES,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Kayatta,
Circuit Judges.
Jerome P. Mayer-Cantu, with whom Philip L. Torrey and
Crimmigration Clinic, Harvard Law School, were on brief, for
petitioner.
Kari Hong, Ninth Circuit Appellate Program, Boston College
Law School, on brief for Retired Immigration Judges et al., amici
curiae.
Lindsay Corliss, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, with whom Joseph H. Hunt,
Assistant Attorney General, Civil Division, Daniel E. Goldman and
Brianne Whelan Cohen, Senior Litigation Counsels, Office of
Immigration Litigation, were on brief, for respondent.
September 6, 2019
SELYA, Circuit Judge. The petitioner, Danielson Mendes
Goncalves Pontes, is a Cape Verdean national. He seeks judicial
review of a final order of the Board of Immigration Appeals (BIA)
ordering him removed to his homeland and denying his motions to
terminate removal proceedings. Addressing a challenge to the
manner in which immigration courts obtain jurisdiction over
removal proceedings — a challenge that has potentially broad
implications and that hinges on a question of first impression in
this circuit — we conclude that the Supreme Court's decision in
Pereira v. Sessions, 138 S. Ct. 2105 (2018), did not invalidate
the Notice to Appear (NTA) that served as the charging document in
the petitioner's removal proceedings. Based on this conclusion,
we hold that the petitioner's motions to terminate his removal
proceedings were properly denied and that the BIA's final order of
removal was in accordance with law. Accordingly, we deny the
petition for judicial review.
I. BACKGROUND
The petitioner was admitted to the United States and
became a lawful permanent resident on March 2, 2010. On December
20, 2013, he was convicted in a Massachusetts court of violating
a protective order. See Mass. Gen. Laws ch. 209A, § 7. In
September 2017, federal authorities served him with an NTA, which
informed him that he was being charged with removability based on
the protective-order conviction, see 8 U.S.C. § 1227(a)(2)(E)(ii),
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and directed him to appear in the immigration court in Boston on
an unspecified future date.
In January of 2018, the petitioner was taken into custody
by Immigration and Customs Enforcement agents and detained at a
Massachusetts correctional facility. The following month, he was
served with a notice of hearing, which directed him to appear in
the Boston immigration court on February 22, 2018, at 1:00 p.m.
The petitioner participated in that hearing remotely from the
correctional facility, and the proceedings were continued on March
1. At the March hearing, the petitioner submitted written
pleadings admitting the factual allegations of the NTA, conceding
removability as charged, and indicating his intention to apply for
relief from removal. Although the petitioner initially signaled
that he would seek cancellation of removal, see id. § 1229b, he
subsequently abandoned that avenue and sought only adjustment of
status, see id. § 1255, with a request in the alternative for
voluntary departure.
After a two-day hearing in July of 2018, the immigration
judge (IJ) denied the petitioner's application for relief
(including his request for voluntary departure) and ordered him
removed to Cape Verde. The IJ assumed, arguendo, that the
petitioner had satisfied the statutory eligibility requirements
for adjustment of status, see id. § 1255(i)(2), but found that
"significant adverse factors . . . weigh[ed] heavily against a
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discretionary grant of adjustment of status." This compendium of
adverse factors included restraining orders filed against him by
several women as a result of violent or threatening behavior.
The petitioner appealed to the BIA. While his appeal
was pending, the petitioner filed two alternative motions seeking
either to terminate removal proceedings or to remand to the
immigration court. In these motions, he contended that — under
Pereira, which the Supreme Court had decided some weeks before his
July hearing — his NTA was ineffective as a charging document
because it failed to include the date and time of the contemplated
removal hearing. Consequently, he posited, the immigration court
lacked jurisdiction over his case and the removal order was a
nullity.
On December 28, 2018, the BIA dismissed the petitioner's
appeal, adopting and affirming the IJ's decision. Denying the
petitioner's motions to terminate the proceedings or to remand,
the BIA determined that Pereira did not undermine the immigration
court's jurisdiction. In support, the BIA noted that it had
rejected essentially the same argument in an earlier case. See In
re Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018).
This timely petition for judicial review followed. See
8 U.S.C. § 1252.
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II. ANALYSIS
In this venue, the petitioner challenges only the BIA's
denial of his motions to terminate the proceedings. As framed,
his challenge rests on a purely legal question, and we review the
BIA's answers to questions of law de novo, "with some deference to
the agency's expertise in interpreting both the statutes that
govern its operations and its own implementing regulations."
Cabrera v. Lynch, 805 F.3d 391, 393 (1st Cir. 2015). Nevertheless,
"[i]f the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress." Chevron U.S.A.
Inc. v. NRDC, 467 U.S. 837, 842-43 (1984).
Here, the NTA used to commence the petitioner's removal
proceedings was issued pursuant to regulations promulgated by the
Attorney General specifically to govern the commencement of
removal proceedings under the Immigration and Nationality Act
(INA), 8 U.S.C. §§ 1101-1537. In relevant part, these regulations
provide that "[j]urisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document is filed with
the Immigration Court." 8 C.F.R. § 1003.14(a). The term "charging
document," in turn, is defined to include "a Notice to Appear, a
Notice of Referral to Immigration Judge, and a Notice of Intention
to Rescind and Request for Hearing by Alien." Id. § 1003.13.
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The regulations also specify what information must be
contained in an NTA, such as the nature of the proceedings against
the alien, the legal authority for the proceedings, and the charges
brought. See id. § 1003.15. Of particular pertinence for present
purposes, the regulations state that an NTA need only provide the
time and place of the initial hearing "where practicable." Id.
§ 1003.18(b).
The petitioner targets these regulations, arguing that
they do not control the substantive requirements of an NTA. In
his view, Congress delineated those requirements in the INA itself,
see 8 U.S.C. § 1229(a), and the statute trumps the regulations.
This is critically important because, even though the substantive
requirements of section 1229(a) largely mirror those limned in the
regulations, there is at least one significant difference. Section
1229(a) states that the time and place of the removal hearing must
be specified in the notice, see id. § 1229(a)(1)(G)(i), but it
omits the qualifier that this must be done only "where
practicable." Analyzing this statutory provision in Pereira, the
Supreme Court held that "[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).'"
138 S. Ct. at 2113-14.
The petitioner seizes upon this holding. He asserts
that because the NTA that initiated the removal proceedings against
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him did not include the date and time of his contemplated hearing,
it was defective as a charging document and, thus, was ineffectual
to commence removal proceedings. As a result, the petitioner says,
the immigration court never acquired jurisdiction over his removal
proceedings, and the agency's final order of removal is a nullity.
Refined to bare essence, the petitioner challenges the
Attorney General's authority to promulgate regulations governing
removal proceedings that contain substantive requirements for an
NTA different from those contained in section 1229(a). Given the
holding in Pereira, this challenge has a patina of plausibility —
but that patina dissolves upon further scrutiny.
We begin by acknowledging that Congress has granted the
Attorney General broad powers to "establish such regulations
. . . as the Attorney General determines to be necessary" for
implementation of the INA. 8 U.S.C. § 1103(g)(2). Of course,
that authority — though broad — may not be exercised "in a manner
that is inconsistent with the administrative structure that
Congress enacted into law." FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 125 (2000) (quoting ETSI Pipeline Project v.
Missouri, 484 U.S. 495, 517 (1988)). Thus, the efficacy of the
petitioner's challenge necessarily depends on whether Congress has
spoken unambiguously to this issue or, conversely, whether it has
left some room in which the Attorney General is entitled to
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exercise his discretion. See Smith v. Berryhill, 139 S. Ct. 1765,
1778 (2019); Chevron, 467 U.S. at 843-44.
With respect to removal proceedings, Congress has spoken
to the substantive requirements of an NTA only in section 1229(a).
This provision states in pertinent part that "[i]n removal
proceedings under section 1229a . . . , written notice (in this
section referred to as a 'notice to appear') shall be given . . .
to the alien." 8 U.S.C. § 1229(a)(1). It then provides that such
a notice must specify, inter alia, "[t]he time and place at which
the proceedings will be held." Id. § 1229(a)(1)(G)(i).
In Pereira, 138 S. Ct. at 2110, the Supreme Court
assessed section 1229(a) as it relates to the stop-time rule, see
8 U.S.C. § 1229b(d)(1), which governs the length of an alien's
continuous physical presence in the United States for the purpose
of an application for cancellation of removal. By its terms, the
stop-time rule applies once "the alien is served a notice to appear
under section 1229(a)." Id. Reading "the plain text of the
statute," the Pereira Court found congressional intent unambiguous
as to the "time and place" requirements of section 1229(a). 138
S. Ct. at 2114. The Court then held that section 1229b(d)(1) —
the stop-time rule — imports those same requirements. See id.
The petitioner's removal proceedings, though, were not
instituted under section 1229(a). The question before us, then,
is whether the requirements that section 1229(a) establishes for
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NTAs pertain to the commencement of removal proceedings generally.
The petitioner invites us to hold that "under Pereira, the phrase
'notice to appear' means the same thing throughout the [INA]" and,
therefore, the "time and place" requirements of section 1229(a)
override any regulation issued by the Attorney General in
implementing the INA. For the reasons explained below, we decline
the petitioner's invitation. In reaching this result, we answer
a question of first impression in this circuit. But we do not
break new ground: rather, we join a number of courts of appeals
that have rejected similar arguments. See Pierre-Paul v. Barr,
930 F.3d 684, 689-90 (5th Cir. 2019); United States v. Cortez, 930
F.3d 350, 363 (4th Cir. 2019), as amended (July 19, 2019); Nkomo
v. Att'y Gen., 930 F.3d 129, 133 (3d Cir. 2019); Ali v. Barr, 924
F.3d 983, 986 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d
101, 110 (2d Cir. 2019); Soriano-Mendosa v. Barr, 768 F. App'x
796, 802 (10th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158,
1160 (9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305,
314-15 (6th Cir. 2018).
To begin, the Pereira Court repeatedly emphasized the
isthmian nature of its holding, making pellucid that it addressed
only the "narrow question" before it: "If the Government serves
a noncitizen with a document that is labeled 'notice to appear,'
but the document fails to specify either the time or place of the
removal proceedings, does it trigger the stop-time rule?" 138 S.
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Ct. at 2110. And in concluding that such a document does not
animate the stop-time rule, the Court zeroed in on circumstances
specific to that rule.
For instance, the Court's reasoning rested in material
part on the stop-time rule's explicit reference to a notice to
appear "under section 1229(a)." See id. at 2117. Because the
stop-time rule did not otherwise set forth its own definition of
a notice to appear, the Court applied the "normal rule of statutory
construction that identical words used in different parts of the
same act are intended to have the same meaning." Id. at 2115
(quoting Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 571
(2012)). Similarly, the Court leaned on the specific purpose of
the stop-time rule in interpreting that rule's reference to a
notice to appear. See id.
We honor both the letter of the narrow holding in Pereira
and the spirit behind it in refusing to extend the Court's
reasoning to contexts other than those explicitly contemplated in
that decision. We add, moreover, that the extensive implications
of the petitioner's argument do not align with a narrow reading of
Pereira. Were we to adopt the petitioner's argument, the upshot
would be that every removal proceeding previously commenced by an
NTA devoid of time and place information would be vulnerable to a
post hoc challenge.
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We do not think that the Pereira Court meant to conceal
so significant a shifting of the tectonic plates within the
curtilage of its answer to the confined question that it
addressed.1 Under Pereira, then, the challenged regulations may
conflict with congressional intent (and therefore lack force) only
if they are somehow tied to the "time and place" requirements that
Congress delineated in section 1229(a) concerning written notice
to an alien. We turn to that inquiry.
We conclude that, in promulgating the challenged
regulations, the Attorney General has not strayed into forbidden
terrain. Unlike the stop-time rule, the regulations contain no
explicit reference to section 1229(a), see Hernandez-Perez, 911
F.3d at 313, and they are not "textually glued" to that provision,
Pierre-Paul, 930 F.3d at 690. Moreover, they contain their own
specification of the substantive requirements that an NTA must
satisfy, rendering inapposite the "normal rule of statutory
construction" upon which the Pereira Court relied in interpreting
the stop-time rule. See Karingithi, 913 F.3d at 1160.
Perhaps more importantly, the regulations do not concern
the written notice contemplated in section 1229(a). Section
1 Indeed, if the petitioner's argument were correct, then the
immigration court would not have acquired jurisdiction over
Pereira's removal proceedings and the Supreme Court would have had
at hand a ready means for disposing of the case without pausing to
delve into the intricacies of the stop-time rule.
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1229(a) governs the information that must be provided to aliens,
that is, "the 'time' and 'place,' that would enable them 'to
appear' at the removal hearing in the first place." Pereira, 138
S. Ct. at 2115. After all, without that information, "the
Government cannot reasonably expect the noncitizen to appear for
his removal proceedings." Id.
The regulations are not concerned with the information
that is provided to an alien. Instead, they set forth the process
by which the immigration court obtains jurisdiction over a removal
proceeding. See 8 C.F.R. § 1003.14. The procedure established by
these regulations "'marks an agency internal boundary' that gives
the immigration courts, rather than [some other subset of the
agency], 'control over the docketing of cases.'" Cortez, 930 F.3d
at 361-62 (citation omitted) (quoting United States v. Arroyo, 356
F. Supp. 3d 619, 627-28 (W.D. Tex. 2018)). It follows, we think,
that the challenged regulations and section 1229(a) speak to
different audiences. On the one hand, the regulations deal with
the commencement of proceedings in the immigration court. The
statute, on the other hand, deals with notice to aliens of removal
hearings. See id. at 366; Karingithi, 913 F.3d at 1160. As to
the former, section 1229(a) says nothing about the rules of
procedure that govern case docketing, see Karingithi, 913 F.3d at
1160, so the Attorney General was "free to fashion [his] own rules
of procedure" in this regard, Hernandez-Perez, 911 F.3d at 313
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(quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543
(1978)).
To cinch the matter, the challenged regulations do not
simultaneously operate to implement section 1229(a). After all,
a "Notice to Appear" is referenced in 8 C.F.R. § 1003.13 as one
among three examples in a non-exhaustive list defining a "charging
document" for the purposes of 8 C.F.R. § 1003.14. Under the
regulations, then, the filing of a charging document such as a
Notice of Referral to Immigration Judge may establish the
immigration court's jurisdiction over a case, commencing removal
proceedings against an alien without resort to a Notice to Appear.
That ends this aspect of the matter. For these reasons
we hold that the challenged regulations are not in conflict either
with section 1229(a) or with the Court's decision in Pereira.
Relatedly, we hold that the Attorney General acted within the
proper ambit of his statutory authority in formulating distinct
substantive requirements applicable to NTAs for purposes of those
regulations. To be sure, there is "some common-sense discomfort
in adopting the position that a single document labeled 'Notice to
Appear' must comply with a certain set of requirements for some
purposes, like triggering the stop-time rule, but with a different
set of requirements for others, like vesting jurisdiction with the
immigration court." Hernandez-Perez, 911 F.3d at 314. But as we
have pointed out in a different context, "words are like
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chameleons; they frequently have different shades of meaning
depending upon the circumstances." United States v. Romain, 393
F.3d 63, 74 (1st Cir. 2004). And in all events, we do not ask
whether the Attorney General has chosen either the wisest or the
least convoluted course in implementing the INA but, rather,
whether he acted within the scope of his authority. We conclude
that he has.
We add a coda. The BIA has likewise concluded that an
NTA that is served without specification of the time and place of
the initial hearing may be sufficient to confer subject-matter
jurisdiction on an immigration court in removal proceedings. See
Bermudez-Cota, 27 I. & N. Dec. at 447. In addition, the BIA has
clarified its view that such a notice "vests an Immigration Judge
with jurisdiction over the removal proceedings" when a notice of
hearing is sent to the alien in advance of those proceedings. Id.2
As this interpretation is neither "obviously erroneous or
2 Bermudez-Cota also purported to resolve the question of
whether a two-step process could satisfy section 1229(a),
concluding that it could. See 27 I. & N. Dec. at 447. We do not
reach this question, but we note that there has been some
disagreement among the courts of appeals as to whether the plain
text of section 1229(a), as interpreted in Pereira, permits such
a conclusion. Compare Perez-Sanchez v. U.S. Att'y Gen., ___ F.3d
___, ___ (11th Cir. 2019) [No. 18-12578, slip. op. at 11] (finding
that Pereira "foreclosed" Bermudez-Cota's conclusion that "an NTA
under section 1229(a) is not deficient so long as a subsequent
notice of hearing is later sent and specifies the time and location
of the removal hearing"), with Pierre-Paul, 930 F.3d at 691
(endorsing the two-step process).
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inconsistent with the language of the regulation," we see no reason
to depart from the general rule that "an agency's interpretation
of its own regulations is entitled to great deference." Sidell v.
Comm'r, 225 F.3d 103, 109 (1st Cir. 2000). It follows that because
the petitioner's NTA complied with the regulations as reasonably
interpreted by the BIA, it was effective to confer jurisdiction
upon the immigration court.3
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we hold that the petitioner's motions to terminate his removal
proceedings were properly denied and that the BIA's final order of
removal was in accordance with law. Hence, the petition for
judicial review is
Denied.
3 Because we hold that the NTA in this case was not defective
under the regulations, we do not address a question taken up by
several of our sister circuits — whether agency regulations can
govern the subject-matter jurisdiction of an immigration court
without statutory authority or whether such regulations instead
must be understood as claim-processing rules. See, e.g., Perez-
Sanchez v. U.S. Att'y Gen., ___ F.3d ___, ___ (11th Cir. 2019)
[No. 18-12578, slip op. at 18]; Cortez, 930 F.3d at 359-62; Pierre-
Paul, 930 F.3d at 691-93; Ortiz-Santiago v. Barr, 924 F.3d 956,
963-64 (7th Cir. 2019), reh'g denied (July 18, 2019).
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