Pereira v. Sessions , 866 F.3d 1 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1033
WESCLEY FONSECA PEREIRA,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Jeffrey B. Rubin, with whom Rubin Pomerleau P.C. was on brief,
for petitioner.
Sarah K. Pergolizzi, Trial Attorney, Office of Immigration
Litigation, with whom Bejamin C. Mizer, Acting Assistant Attorney
General, Civil Division, Kohsei Ugumori, Senior Litigation
Counsel, Office of Immigration Litigation, and Jesse D. Lorenz,
Trial Attorney, Office of Immigration Litigation, were on brief,
for respondent.

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Jefferson B. Sessions III has been substituted
for former Attorney General Loretta E. Lynch as respondent.
July 31, 2017
LIPEZ, Circuit Judge. The Immigration and Nationality
Act ("INA") gives the Attorney General discretion to cancel the
removal of a non-permanent resident alien if the alien meets
certain criteria, including ten years of continuous physical
presence in the United States. 8 U.S.C. § 1229b(b)(1). Under the
"stop-time" rule, the alien's period of continuous physical
presence ends "when the alien is served a notice to appear under
section 1229(a)" of the INA. Id. § 1229b(d)(1). In this case, we
must decide whether a notice to appear that does not contain the
date and time of the alien's initial hearing is nonetheless
effective to end the alien's period of continuous physical
presence. The Board of Immigration Appeals ("BIA") answered this
question affirmatively in Matter of Camarillo, 25 I. & N. Dec. 644(B.I.A. 2011). The BIA applied that rule in this case.
Joining the majority of circuit courts to address this
issue, we conclude that the BIA's decision in Camarillo is entitled
to Chevron deference. We deny the petition for review.
I.
Wescley Fonseca Pereira ("Pereira"), a native and
citizen of Brazil, was admitted to the United States in June 2000
as a non-immigrant visitor authorized to stay until December 21,
2000. He overstayed his visa. In May 2006, less than six years
after Pereira entered the country, the Department of Homeland
Security ("DHS") personally served him with a notice to appear.
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The notice did not specify the date and time of his initial removal
hearing, but instead ordered him to appear before an Immigration
Judge ("IJ") in Boston "on a date to be set at a time to be set."
More than a year later, DHS filed the notice to appear with the
immigration court, and the court mailed Pereira a notice setting
his initial removal hearing for October 31, 2007 at 9:30 A.M.
Because the notice was sent to Pereira's street address on Martha's
Vineyard rather than his post office box, however, he never
received it.1 When Pereira failed to appear at the hearing, an IJ
ordered him removed in absentia.
Pereira was not removed, however, and he remained in the
country. In March 2013, more than five years later, Pereira was
arrested for a motor vehicle violation and detained by DHS.
Pereira retained an attorney, who filed a motion to reopen his
removal proceedings, claiming that Pereira had never received the
October 2007 hearing notice. After an IJ allowed the motion,
Pereira conceded removability, but sought relief in the form of
cancellation of removal under 8 U.S.C. § 1229b(b)(1).2 Arguing
1 According to Pereira, such a problem is not uncommon for
residents of Martha's Vineyard, who often receive mail through a
post office box rather than at their home addresses.
2 Pereira also applied for voluntary departure, a request that
he later withdrew. In addition, he asked DHS to exercise its
prosecutorial discretion to allow him to remain in the country
with his wife and two American citizen daughters. DHS denied that
request.
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that the notice to appear was defective because it did not include
the date and time of his hearing, Pereira contended that it had
not "stopped" the continuous residency clock. He asserted that he
had instead continued to accrue time for the purpose of
§ 1229b(b)(1) until he received a notice of the hearing that
occurred after his case was reopened in 2013.
The IJ pretermitted Pereira's application for
cancellation of removal, finding that Pereira could not establish
the requisite ten years of continuous physical presence, and
ordered him removed. Pereira appealed to the BIA. On appeal, he
conceded that Camarillo foreclosed his argument that the stop-time
rule did not cut off his period of continuous physical presence
until 2013, but argued that Camarillo should be reconsidered and
overruled. The BIA declined to reconsider Camarillo and affirmed
the IJ's decision, holding that the notice to appear was effective
under the stop-time rule despite the missing details concerning
the date and time of his hearing.3 Pereira timely filed a petition
for review with this court.
3Pereira also asked the BIA to administratively close his
case, or to remand it to the IJ to consider termination or
administrative closure while he submitted a second application to
DHS seeking prosecutorial discretion, this time pursuant to a
recently announced program. The BIA denied Pereira's request,
stating that DHS had sole authority over prosecutorial discretion
decisions and that prosecutorial discretion did not, therefore,
provide a basis upon which the BIA could remand or administratively
close the case.
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II.
A. Standard of Review
Because "the BIA adopted and affirmed the IJ's ruling,
and discussed some of the bases for the IJ's opinion, we review
both the BIA's and IJ's opinions." Idy v. Holder, 674 F.3d 111,
117 (1st Cir. 2012). Where, as here, the case presents a question
of statutory interpretation, we review the BIA's legal conclusions
de novo, but give "appropriate deference to the agency's
interpretation of the underlying statute in accordance with
administrative law principles." Id. (quoting Gailius v. INS, 147
F.3d 34, 43 (1st Cir. 1998)). Under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., we first look to the
statutory text to ascertain whether "Congress has directly spoken
to the precise question at issue." 467 U.S. 837, 842 (1984). If
the statute addresses the question at issue and is clear in its
meaning, then we "must give effect to the unambiguously expressed
intent of Congress." Id. at 842-43. If, however, the statute is
silent or ambiguous, we determine "whether the agency's answer is
based on a permissible construction of the statute." Id. at 843.
We defer to an agency's construction of an ambiguous statutory
provision "unless it is 'arbitrary, capricious, or manifestly
contrary to the statute.'" Saysana v. Gillen, 590 F.3d 7, 13 (1st
Cir. 2009) (quoting Chevron, 467 U.S. at 844).
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B. Analysis
1. Chevron Step One: Ambiguity of the Statute
To qualify for cancellation of removal, an alien must
meet several criteria, including a showing that he "has been
physically present in the United States for a continuous period of
not less than 10 years." 8 U.S.C. § 1229b(b)(1)(A). We focus on
the language of the stop-time rule, 8 U.S.C. § 1229b(d)(1), which
cuts off that period of physical presence "when the alien is served
a notice to appear under section 1229(a)."4
The referenced provision, § 1229(a), contains three
subsections, the first of which states:
In removal proceedings under section 1229a of this
title, written notice (in this section referred to as a
"notice to appear") shall be given in person to the alien
(or, if personal service is not practicable, through
service by mail to the alien or to the alien's counsel
of record, if any) specifying the following: . . . .
4 The full text of the provision reads:
(1) Termination of continuous period
For purposes of this section, any period of continuous
residence or continuous physical presence in the United
States shall be deemed to end (A) except in the case of
an alien who applies for cancellation of removal under
subsection (b)(2), when the alien is served a notice to
appear under section 1229(a) of this title, or (B) when
the alien has committed an offense referred to in section
1182(a)(2) of this title that renders the alien
inadmissible to the United States under section
1182(a)(2) of this title or removable from the United
States under section 1227(a)(2) or 1227(a)(4) of this
title, whichever is earliest.
8 U.S.C. § 1229b(d)(1).
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Id. § 1229(a)(1). That subsection goes on to specify ten items,
including the charges against the alien, the alien's alleged
illegal conduct, and "[t]he time and place at which the proceedings
will be held." Id. The second subsection provides a procedure
for notifying the alien in the event of a change in the time or
place of the initial removal hearing. See id. § 1229(a)(2). The
third subsection directs the Attorney General to "create a system
to record and preserve" the addresses and telephone numbers of
aliens who have been served with notices to appear. Id.
§ 1229(a)(3).
Pereira argues that the stop-time rule's reference to "a
notice to appear under § 1229(a)" unambiguously requires that the
notice include all of the information specified in § 1229(a)(1),
including the date and time of the initial removal hearing.
Otherwise, he claims, the notice is not, in fact, a "notice to
appear," and it cannot trigger the stop-time rule. According to
Pereira, however, all ten items listed in § 1229(a)(1) need not be
provided in the same document. Instead, two or more documents
that together contain all ten items (such as the notice served on
Pereira in 2006 and the hearing notice he received in 2013) could,
in combination, serve as a "notice to appear." In that case, the
stop-time rule would not be triggered until both documents had
been served on the alien.
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For support, Pereira cites a recent decision by the Third
Circuit, which found that the language of § 1229b(d)(1)
unambiguously requires that the date and time of the hearing be
provided before the stop-time rule is triggered. See Orozco-
Velasquez v. Att'y Gen. United States, 817 F.3d 78, 81-82 (3d Cir.
2016). The court relied upon § 1229(a)(1)'s commandment that a
notice to appear specifying the ten pieces of information listed
"shall be given in person to the alien." Id. at 83. Explaining
that the word "shall" "conveys a mandatory rather than a hortatory
instruction," the court concluded that only a notice or set of
notices that "conveys the complete set of information prescribed
by § 1229(a)(1)" could "stop the continuous residency clock." Id.
The word "shall," however, appears in § 1229(a)(1), not
in the stop-time rule itself. It is undisputed that § 1229(a)(1)
creates a duty requiring the government to provide an alien with
the information listed in that provision. But whether a notice to
appear that omits some of this information nonetheless triggers
the stop-time rule is a different question. As the Seventh Circuit
has observed, even if such an omission renders a notice to appear
defective, "a defective document [may] nonetheless serve[] a
useful purpose." Wang v. Holder, 759 F.3d 670, 674 (7th Cir.
2014); see also Gonzalez-Garcia v. Holder, 770 F.3d 431, 435 (6th
Cir. 2014) (quoting Wang, 759 F.3d at 674). In Becker v.
Montgomery, the Supreme Court held that an unsigned notice of
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appeal could qualify as timely filed, even if the missing signature
was not provided within the filing period. 532 U.S. 757, 760
(2001). Here, just as there, the missing item may be a "curable"
defect that does not prevent the notice from serving its purpose.5
We thus disagree with the Third Circuit's holding that
the stop-time rule unambiguously incorporates the requirements of
§ 1229(a)(1). The stop-time rule does not explicitly state that
the date and time of the hearing must be included in a notice to
appear in order to cut off an alien's period of continuous physical
presence. See 8 U.S.C. § 1229b(d)(1). Moreover, the rule's
reference to a notice to appear "under" § 1229(a) does not clearly
indicate whether the rule incorporates the requirements of that
section. See id. Thus, we find the statutory language of the
stop-time rule ambiguous. Pereira cannot, therefore, prevail at
the first step of the Chevron inquiry, and we must proceed to step
two.
5
Pereira also cites Orozco-Velasquez for the argument that
"[t]aken to its logical conclusion, the agency's approach might
treat even a 'notice to appear' containing no information
whatsoever as a 'stop-time' trigger." 817 F.3d at 84. Because
the facts of this case involve only an initially omitted, but later
provided, hearing date, and the BIA's opinion made no assertions
about the extension of Camarillo to other contexts, this case does
not require us to define the boundaries of our deference to the
agency's statutory construction of the applicable provisions.
See, e.g., López-Soto v. Hawayek, 175 F.3d 170, 177 (1st Cir. 1999)
(explaining that the facts of the case presented "no occasion to
address . . . looming issues" that might become relevant in other
contexts).
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2. Chevron Step Two: Permissibility of the Agency's
Interpretation
The BIA's decision in this case relied on its
precedential opinion in Camarillo, in which the BIA announced its
position on the statutory question we face here. See 25 I. & N.
Dec. at 645. Finding more than one plausible interpretation of
the stop-time rule, the BIA in Camarillo determined that the
statutory language was ambiguous. Id. at 647. The agency
explained that, instead of incorporating the requirements of
§ 1229(a) as Pereira suggests here, the rule's reference to "a
notice to appear under section 1229(a)" could also be construed as
"simply definitional." Id. That is, the reference may "merely
specif[y] the document the DHS must serve on the alien to trigger
the 'stop-time' rule," without "impos[ing] substantive
requirements for a notice to appear to be effective" in triggering
that rule. Id.
After examining the structure of the statute, the
administration of the statute's requirements, and the statute's
legislative history, the agency concluded that the "definitional"
construction of the stop-time rule was the better reading. Id. at
651. The BIA applied that holding from Camarillo in this case.
We are obligated to defer to the BIA as long as its chosen
construction is not "arbitrary, capricious, or manifestly contrary
to the statute." Chevron, 457 U.S. at 844. We thus must determine
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whether the BIA adopted a permissible construction of the stop-
time rule.
a. Statutory Structure
In Camarillo, the agency began its analysis by examining
the structure of the INA and, more specifically, the relevant
provisions. It noted that § 1229(a) is "the primary reference in
the [INA] to the notice to appear," and that this section defines
the term "notice to appear." Camarillo, 25 I. & N. Dec. at 647.
Thus, the BIA explained, it seems logical that Congress would
reference § 1229(a) "to specify the document the DHS must serve on
the alien to trigger the 'stop-time' rule," supporting a
"definitional" reading of the reference. Id.
Looking to the language of the stop-time rule, the BIA
then noted that the rule refers not just to § 1229(a)(1), the
provision specifying the information that must be included in a
notice to appear, but instead it broadly references the entirety
of § 1229(a). Id.; see also 8 U.S.C. § 1229b(d)(1). As noted
above, the second subsection of § 1229(a) "outlin[es] the
procedures [for DHS] to follow when notice must be given" of
changes in the date or time of the initial removal hearing.
Camarillo, 25 I. & N. Dec. at 647-48; see also § 1229(a)(2). This
provision "clearly accounts for [the] reality" that such details
"are often subject to change," and "indicates that Congress
envisioned that . . . notification [of a change in hearing date]
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could occur after the issuance of the notice to appear."
Camarillo, 25 I. & N. Dec. at 647-48.
We agree with the thrust of the BIA's reasoning. It
would make little sense for the stop-time rule's reference to "a
notice to appear under section 1229(a)" to condition the triggering
of the rule on the fulfillment of all of the requirements of
§ 1229(a), which include not just notification of the initial date
and time of the removal hearing under § 1229(a)(1), but also
notification of any subsequent changes to that date and time under
§ 1229(a)(2).6
b. Administrative Context
The BIA further reasoned that the "definitional"
approach best accords with the process through which enforcement
proceedings are initiated. While DHS drafts and serves the notice
to appear, the immigration court sets the date and time of the
hearing. See id. at 648, 650; see also 8 C.F.R. § 1003.18. The
BIA observed that because "DHS frequently serves [notices to
appear] where there is no immediate access to docketing
information," Camarillo, 25 I. & N. Dec. at 648 (alteration in
original) (quoting Dababneh v. Gonzales, 471 F.3d 806, 809 (7th
Cir. 2006)), "it is often not practical to include the date and
6
Notably, Pereira neither addresses whether the stop-time
rule incorporates § 1229(a)(2) and (a)(3), nor argues that the
rule somehow incorporates only the requirements of § 1229(a)(1).
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time of the initial removal hearing on the notice to appear," id.
An interpretation of the statute that allows the stop-time rule to
take effect without requiring separate action by the immigration
courts would, therefore, accommodate these practical constraints.
c. Legislative History
The BIA also relied upon the legislative history of the
stop-time rule. The rule was enacted as part of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546, which amended
various portions of the INA. Before the enactment of the stop-
time rule, the agency explained, "[an] otherwise eligible person
could qualify for suspension of deportation [now known as
"cancellation of removal"] if he or she had been continuously
physically present in the United States for [the requisite period],
regardless of whether or when the Immigration and Naturalization
Service had initiated deportation proceedings against the person
through the issuance of" the document that, at that time, served
as a notice to appear. Camarillo, 25 I. & N. Dec. at 649-50 (first
alteration in original) (quoting Matter of Nolasco, 22 I. & N.
Dec. 632, 640 (B.I.A. 1999) (quoting 143 Cong. Rec. S12265, S12266
(daily ed. Nov. 9, 1997))). "[T]he 'stop-time' rule was enacted
to address 'perceived abuses arising from'" this legal loophole by
"prevent[ing] aliens from being able 'to "buy time[]" [through
tactics such as requesting multiple continuances,] during which
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they could acquire a period of continuous presence that would
qualify them for forms of relief that were unavailable to them
when proceedings were initiated.'" Id. at 649 (quoting Matter of
Cisneros, 23 I. & N. Dec. 668, 670 (B.I.A. 2004) (quoting H.R.
Rep. 104-469, pt. I, at 122 (1996))). Thus, the BIA concluded,
"Congress intended for the 'stop-time' rule to break an alien's
continuous physical residence or physical presence in the United
States when . . . DHS[] serves the charging document," regardless
of whether that document contains a hearing date. Id. at 650.
The legislative history reflects Congress's concern
about delay and inefficiency in the immigration process that it
sought to address through the enactment of IIRIRA. Specifically,
a report of the Judiciary Committee of the House of Representatives
notes that "lapses (perceived or genuine) in the procedures for
notifying aliens of deportation proceedings [had led] some
immigration judges to decline to exercise their authority to order
an alien deported in absentia." H.R. Rep. 104-469, pt. I, at 122.
The creation of the "notice to appear" was intended to prevent
"protracted disputes concerning whether an alien has been provided
proper notice of a proceeding" by informing aliens that they are
required to notify the government of any changes in their contact
information. Id. at 159; see 8 U.S.C. § 1229(a)(1)(F) (stating
that a notice to appear shall include "[t]he requirement that the
alien must immediately provide (or have provided) the Attorney
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General with a written record of an address and telephone number
(if any) at which the alien may be contacted" and "[t]he
requirement that the alien must provide the Attorney General
immediately with a written record of any change of the alien's
address or telephone number"). Given Congress's intent in enacting
IIRIRA to prevent notice problems from dragging out the deportation
process, it would make little sense for Congress to have created
the potential for further delays by conditioning the activation of
the stop-time rule on the receipt of a hearing notice that may
come months, or even years, after the initiation of deportation
proceedings by DHS.
d. Conclusion
In light of the relevant text, statutory structure,
administrative context, and legislative history, the BIA's
construction of the stop-time rule is neither arbitrary and
capricious nor contrary to the statute. See Chevron, 467 U.S. at
844. It is thus a permissible construction of the statute to which
we defer.7 See id. In so holding, we join five other circuits
that have granted Chevron deference to the BIA's interpretation in
7To the extent the government suggests that our holding is
dictated by Cheung v. Holder, 678 F.3d 66 (1st Cir. 2012), Pereira
correctly points out that the notice to appear in that case was
not alleged to have omitted any of the required information.
Instead, Cheung addressed the application of the stop-time rule
when the government later withdraws the charges stated in the
notice and substitutes a different set of charges. See 678 F.3d
at 69. Thus, that precedent is not controlling.
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published opinions.8 See Guaman-Yuqui v. Lynch, 786 F.3d 235, 240
(2d Cir. 2015) (per curiam); Moscoso-Castellanos v. Lynch, 803
F.3d 1079, 1083 (9th Cir. 2015);9 Gonzalez-Garcia, 770 F.3d at 434-
35; Wang, 759 F.3d at 675; Urbina v. Holder, 745 F.3d 736, 740
(4th Cir. 2014). But see Orozco-Velasquez, 817 F.3d at 82-83.
III.
Because we defer to the BIA's interpretation of the stop-
time rule, we agree with the agency's conclusion that Pereira's
period of continuous physical presence ended when he was served
with a notice to appear in 2006. At that point, he had been
present in the United States for less than six years. Unable to
demonstrate the requisite ten years of physical presence, Pereira
is ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1). The petition for review is denied.
So ordered.
8 The Eleventh Circuit also granted the BIA's construction
Chevron deference in an unpublished opinion, see O'Garro v. U.S.
Att'y Gen., 605 F. App'x 951, 953 (11th Cir. 2015) (per curiam),
and accepted the BIA's construction without conducting a Chevron
analysis in Hernandez-Rubio v. U.S. Att'y Gen., 615 F. App'x 933,
934 (11th Cir. 2015) (per curiam).
9 Pereira cites Garcia-Ramirez v. Gonzales, a pre-Camarillo
case in which the Ninth Circuit held, in a footnote, that the
petitioner's period of continuous physical presence did not end
until she was served with a notice containing the date and time of
her hearing. 423 F.3d 935, 937 n.3 (9th Cir. 2005) (per curiam).
Because that court later afforded Chevron deference to the BIA's
interpretation in Camarillo, however, Garcia-Ramirez no longer
states the applicable law in the Ninth Circuit. See Moscoso-
Castellanos, 803 F.3d at 1082 n.2.
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