Wilson Guadalupe v. Attorney General United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-2239
____________
WILSON N. GUADALUPE,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A096-432-645)
Immigration Judge: Annie S. Garcy
Argued on December 11, 2019
Before: RESTREPO, ROTH and FISHER, Circuit Judges
(Opinion filed February 26, 2020)
Marcia Kasdan (ARGUED)
Law Offices of Marcia S. Kasdan
127 main Street
1st Floor
Hackensack, NJ 07601
Counsel for Petitioner
Lindsay Corliss (ARGUED)
United States Department of Justice
Office of Immigration Litigation
Room 2207
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
O P I N I ON
ROTH, Circuit Judge:
In Pereira v. Sessions,1 the Supreme Court held that a
Notice to Appear (NTA) that omits the time and date of
appearance does not stop a noncitizen’s continuous residency
period. The issue before us is whether Pereira abrogated our
1
138 S. Ct. 2105 (2018).
2
decision in Orozco-Velasquez v. Attorney General,2 where we
held that an NTA that omits the time and date may be “cured”
with a later Notice of Hearing that provides the missing
information. We now hold that Pereira does abrogate Orozco-
Velasquez. It is our conclusion that the Department of
Homeland Security (DHS) may no longer rely on a Notice of
Hearing to cure a defective NTA.
I. FACTS
Wilson Guadalupe came to the United States from
Ecuador in November 1998. In 2001, he met Raquel Torres, a
United States citizen. They married in February 2003. Torres
filed an “immediate relative” petition on behalf of Guadalupe,
and he was granted conditional permanent resident status.
Guadalupe’s marriage to Torres soured quickly and the
couple divorced in 2006. Shortly thereafter, Guadalupe
applied for removal of the conditional basis of his permanent
resident status, claiming that, despite his divorce from Torres,
the marriage had not been entered into for the purpose of
procuring Guadalupe’s admission to the United States as an
immigrant. United States Citizenship and Immigration
Services (USCIS) interviewed Guadalupe about his marriage
to Torres. He maintained that their marriage was bona fide.
Torres, however, signed an affidavit, stating that Guadalupe
married her for immigration purposes. USCIS concluded that
Guadalupe’s marriage to Torres had not been in good faith; on
April 30, 2007, USCIS terminated Guadalupe’s conditional
resident status.
2
817 F.3d 78 (3d Cir. 2016).
3
Guadalupe was then placed in removal proceedings. On
May 11, 2007, DHS sent him an NTA. The NTA omitted the
date and time for the removal hearing, indicating that the date
and time would be set later. Four days later, the Immigration
Court mailed Guadalupe a Notice of Hearing that contained the
date and time. Guadalupe, along with his counsel, attended the
hearing before the IJ on June 5, 2007. The IJ took additional
testimony on October 23, 2008. On November 6, the IJ denied
Guadalupe’s motion for relief from removal and ordered him
to voluntarily depart or be removed. The BIA affirmed.
Guadalupe failed to depart and has remained in the United
States since then.
In June 2018, the Supreme Court decided Pereira v.
Sessions. Pereira held that where, as here, an NTA does not
contain the date or time for the hearing, the NTA “does not
trigger the stop-time rule,”3 and a noncitizen continues to
accrue time towards the ten years of continuous residence
required to apply for cancellation of removal.
Guadalupe moved to reopen his case based on Pereira.
He argued that, because his NTA did not contain the date and
time for his hearing, it did not stop the clock on his continuous
residency period and that he had now accrued the ten years of
continuous residency required to apply for cancellation of
removal.4 The BIA denied the motion, relying on its decision
3
138 S. Ct. at 2110.
4
8 U.S.C. § 1229b(b)(1) provides that “Nonpermanent
residents, . . . who are subject to removal proceedings and have
accrued 10 years of continuous physical presence in the United
States, may be eligible for a form of discretionary relief known
as cancellation of removal.” Under the so-called “stop-time
4
in Matter of Bermudez-Cota, which held that a Notice of
Hearing with the date and time could cure a defective NTA for
jurisdictional purposes.5 The BIA noted that Guadalupe had
received the notice of the date and time because he had
appeared for his hearing. Guadalupe filed this petition for
review.
II. DISCUSSION
We have jurisdiction over this case as a timely petition
for review of a final order of removal under 8 U.S.C. §
1252(a)(1) and § 1252(b)(1).6 Cancellation of removal is an
exercise of the BIA’s discretion that we typically lack
jurisdiction to review, but we may nevertheless review the
decision if “based on a false legal premise.”7 The question here
is a legal one and thus is subject to de novo review.8
rule,” set forth in § 1229b(d)(1)(A), however, the period of
continuous physical presence is “deemed to end . . . when the
alien is served a notice to appear under section 1229(a).”
Pereira, 138 S. Ct. at 2109.
5
Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA
2018).
6
In Nkomo v. Attorney General, 930 F.3d 129 (3d Cir. 2019),
appellant argued that an incomplete Notice to Appear did not
confer subject matter jurisdiction over removal proceedings.
We held to the contrary – that Pereira does not implicate the
IJ’s authority to adjudicate. Nor does Pereira implicate the IJ’s
jurisdiction to adjudicate the stop-time issue here.
7
Pllumi v. Att’y Gen. of United States, 642 F.3d 155, 160 (3d
Cir. 2011).
8
See Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003).
5
This case presents a single issue: In removal
proceedings, does Pereira v. Sessions prohibit DHS from
curing a defective NTA, which has triggered the stop-time rule,
with a subsequent Notice of Hearing which contains the
missing information?9 We had held before Pereira that DHS
could cure a defective NTA with a supplemental Notice of
Hearing.10 After Pereira, the Sixth Circuit in Garcia-Romo v.
Barr11 and the BIA in Matter of Mendoza-Hernandez12 have
held that DHS may cure a defective NTA with a Notice of
Hearing that includes the date and time of the hearing.13 We
9
The government has made a tangential argument that
Guadalupe’s motion to reopen was untimely. But Guadalupe
filed a motion to reopen sua sponte, which the BIA may
entertain “at any time.” See 8 C.F.R. § 1003.2(a). Regardless,
we decline to address the issue of timeliness as we “may
uphold agency action only on the grounds that the agency
invoked when it took that action.” Michigan v. EPA, 135 S.
Ct. 2699, 2710 (2015) (citing SEC v. Chenery Corp., 318 U.S.
80, 87 (1943)). Here, the BIA ruled on the merits of
Guadalupe’s claim, making no mention of timeliness.
10
Orozco-Velasquez, 817 F.3d 78.
11
940 F.3d 192 (6th Cir. 2019).
12
27 I. & N. Dec. 520 (BIA 2019).
13
Guadalupe directs this Court to the Ninth Circuit’s opinion
in Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019), but the Ninth
Circuit subsequently granted rehearing en banc, withdrawing
the Lopez opinion. Although other circuits have suggested that
the government cannot cure a defective NTA with a subsequent
notice of hearing, they did not squarely address the issue
Guadalupe raises. See Ortiz-Santiago v. Barr, 924 F.3d 956,
962 (7th Cir. 2019) (concluding that the government should not
send an incomplete Notice to Appear and later “fill[] in the
6
hold that a defective NTA may not be cured by a subsequent
Notice of Hearing, containing the omitted information.
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.
7
the statute.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
one.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.
8
inapplicable here because we are not merely interpreting the
stop-time rule.19 Rather, we are deciding as a matter of law
whether the Supreme Court’s decision in Pereira forecloses
our interpretation of the statute in Orozco-Velasquez.
We start this analysis with an overview of the statutory
scheme. Nonpermanent residents who have “10 years of
continuous physical presence in the United States” may apply
for cancellation of removal.20 But, under the stop-time rule, 8
U.S.C. § 1229b(d)(1), this period of continuous residence ends
when the noncitizen “is served a notice to appear under section
1229(a).”21 Section 1229(a)(1), in turn, sets out the
information to be provided in an NTA as follows.
(A) The nature of the proceedings against the
alien.
(B) The legal authority under which the
proceedings are conducted.
(C) The acts or conduct alleged to be in violation
of law.
(D) The charges against the alien and the
statutory provisions alleged to have been
violated
...
(G) (i) The time and place at which the
19
See Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en
banc), vacated on other grounds, 524 U.S. 11 (1998) (“There
is therefore no reason for courts—the supposed experts in
analyzing judicial decisions—to defer to agency
interpretations of the Court’s opinions.”).
20
Pereira, 138 S. Ct. at 2109.
21
8 U.S.C. § 1229b(d)(1).
9
proceedings will be held.
(ii) The consequences under section
1229a(b)(5) of this title of the
failure, except under exceptional
circumstances, to appear at such
proceedings.22
Before Pereira, we held in Orozco-Velasquez “that an
NTA served ‘under section 1229(a)’ is effective, for purposes
of the ‘stop-time’ rule, only when it includes each of the items
that Congress instructs ‘shall be given in person to the
alien.’”23 That could be done, we held, with a “combination of
notices, properly served on the alien charged as removable,
[that] conveys the complete set of information prescribed by §
1229(a)(1).”24
The Supreme Court in Pereira confirmed that the time
and place requirement in § 1229(a)(1) is substantive. Pereira
held that § 1229(a) “speak[s] in definitional terms, at least with
respect to the ‘time and place at which the proceedings will be
held,’”25 and that “[a] notice that does not inform a noncitizen
when and where to appear for removal proceedings is not a
‘notice to appear under section 1229(a)’ and therefore does not
trigger the stop-time rule.”26 Pereira, however, rejected the
idea that an incomplete NTA could stop the time on a
noncitizen’s period of continuous residence.27 If § 1229(a)(1)
22
8 U.S.C. § 1229(a)(1).
23
Orozco-Velasquez, 817 F.3d at 83.
24
Id.
25
Pereira, 138 S. Ct. at 2116.
26
Id. at 2110.
27
Id. at 2116 (quoting id. at 2126 (Alito, J., dissenting)).
10
defines elements that make an NTA complete, the stop-time
rule cannot be satisfied by an NTA which does not notify the
noncitizen of the elements of the date and time and place of the
hearing.
The NTA that Guadalupe received did not contain the
time and date of the proceeding. It did not therefore satisfy the
statutory requirements for a Notice to Appear. The Notice of
Hearing that Guadalupe received included the time and date
but it could not trigger the stop-time rule because it made no
mention of the other requirements of an NTA, other than to
note Guadalupe’s file number. Thus, neither document by
itself was a proper NTA sufficient to trigger the stop-time rule.
The government’s contrary interpretation is
unconvincing. The government contends that § 1229(a)(1)
requires merely written notice rather than one written
document; it argues that § 1229(a)’s language is properly
understood as applying to information rather than to a
particular document. We find this interpretation to be
inconsistent with the statutory language.
The government also looks to the Dictionary Act to
support reading “a notice to appear” in the stop-time rule to
allow for more than one document. Under the Dictionary Act,
“words importing the singular include and apply to several
persons, parties, or things.”28 But the Supreme Court “has
relied on this directive when the rule is ‘necessary to carry out
the evident intent of the statute.’”29 Here, however, in view of
28
1 U.S.C. § 1.
29
CTS Corp. v. Waldburger, 573 U.S. 1, 15–16 (2014) (quoting
United States v. Hayes, 555 U.S. 415, 422 n.5 (2009)).
11
the clarity of the language of the statute, it is not necessary to
rely on the Dictionary Act.
Nor do we agree with the government that the BIA’s
error was harmless.30 “[W]e will view an error as harmless and
not necessitating a remand to the BIA when it is highly
probable that the error did not affect the outcome of the case.”31
The government rests its theory of harmlessness on the fact that
Guadalupe appeared for his hearing. But the correct inquiry is
whether the BIA’s legal error affected the outcome of
Guadalupe’s motion to reopen. It has. The BIA’s misreading
of the stop-time rule was its sole reason for rejecting
Guadalupe’s motion to reopen. The BIA found Guadalupe
ineligible for cancellation of removal based on an incorrect
legal premise. That error was not harmless.
Rejecting the two-step notification process may seem
overly formalistic in this case. After all, the Immigration Court
30
Guadalupe contends that the government waived its
harmless error argument, but even when the government
waives harmless error, “we may still consider the issue.”
United States v. Davis, 726 F.3d 434, 445 n.8 (3d Cir. 2013).
Although the Chenery doctrine typically limits courts to
considering only those rationales relied on by the agency, see,
e.g., Michigan, 135 S. Ct. at 2710 (citing Chenery Corp., 318
U.S. at 87 (reciting “the foundational principle of
administrative law that a court may uphold agency action only
on the grounds that the agency invoked when it took the
action”), we nevertheless apply harmless error review in
immigration cases. Li Hua Yuan v. Att’y Gen. of U.S., 642 F.3d
420, 427 (3d Cir. 2011).
31
Li Hua Yuan, 642 F.3d at 427.
12
sent Guadalupe his Notice of Hearing a mere four days after
DHS sent his Notice to Appear, and he attended the hearing.
But the government has the power to remedy this scenario in
the future for countless others, in other situations. Requiring
one complete NTA does not “prevent DHS and the
Immigration Courts from working together to streamline the
scheduling of removal proceedings”;32 nor does it prohibit
DHS, when it has compiled all the information required by §
1229(a)(1), from sending out a complete NTA that includes the
date and time of the hearing.
III. CONCLUSION
We conclude that, for purposes of the stop-time rule, a
deficient NTA cannot be supplemented with a subsequent
notice that does not meet the requirements of 8 U.S.C. §
1229(a)(1). Because the BIA reached a contrary conclusion in
denying Guadalupe’s motion to reopen, we will grant the
petition for review, vacate the BIA’s removal order, and
remand this case to the BIA for further proceedings on
Guadalupe’s motion for relief from removal.
32
Pereira, 138 S. Ct. at 2115 n.6.
13