Kiril Vidinski v. William P. Barr ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 3, 2019
Decided October 28, 2019
Before
DIANE P. WOOD, Chief Judge
AMY C. BARRETT, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-3413
KIRIL VIDINSKI, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A096-533-945
WILLIAM P. BARR, Attorney General
of the United States,
Respondent.
ORDER
An Immigration Judge found Kiril Vidinski, a citizen of Bulgaria, removable.
Despite the fact that the removal order has now been carried out, Vidinski (as is his
prerogative) is continuing to pursue his right to stay in the United States. In this action,
his third challenge to the removal order, Vidinski argues that his proceedings have been
void ab initio because they were based on a flawed Notice to Appear. The flaw was the
absence of any information about the specific date and time for his hearing, in disregard
of the statutory requirement to include that information. See 8 U.S.C. § 1229(a)(1)(G)(i).
Those details were supplied later, in a supplemental notice. He also contends that the
No. 18-3413 Page 2
Board of Immigration Appeals exceeded its authority by exploring the facts underlying
his application for cancellation of removal at the motion-to-reopen stage.
Unfortunately for Vidinski, we recently held in Ortiz-Santiago v. Barr, 924 F.3d
956 (7th Cir. 2019), that omission of date-and-time information from a Notice to Appear
does not affect the tribunal’s jurisdiction. Instead, the requirement to include those
details is a claim-processing rule that an alien may waive or forfeit. Vidinski did not
timely object to the statutory defects in his notice, nor has he demonstrated that the
Board erred by considering his stated factual basis for his latest request for cancellation
of removal. We therefore deny his petition for review.
I
Vidinski overstayed a 1998 visa that expired the same year. He married a
United States citizen in 2002, and in 2005 he applied to the Department of Homeland
Security to adjust his status based on the marriage. Yet his tax returns during the
marriage said he was single, and in early 2005 his former girlfriend from Bulgaria (who
by that time lived in the United States) gave birth to their child.
Although he divorced his citizen wife in 2009, Vidinski’s application remained
pending until 2010, when immigration officials who were investigating a marriage-
fraud ring interviewed her. She admitted that her marriage to Vidinski was a sham, that
she had been paid to marry him, and that she had never lived with him. Armed with
that information, the agency denied Vidinski’s application to adjust his status.
The Department of Homeland Security (DHS) then initiated removal
proceedings and filed a Notice to Appear with the immigration court, charging that
Vidinski was removable for overstaying his visa, see Immigration and Nationality Act
(INA), 8 U.S.C. § 1227(a)(1)(B), and for attempting to procure an immigration benefit by
marriage fraud, see § 1227(a)(1)(G)(ii). The notice did not contain the date and time of
his hearing, but DHS furnished that information in a later notice. Until Pereira v.
Sessions, 138 S. Ct. 2105 (2018), this two-step process for setting a date and time was
commonplace.
Vidinski admitted that overstaying his visa rendered him eligible for removal
under § 1227(a)(1)(B), but he denied committing marriage fraud. Eventually, he also
applied for cancellation of removal based on hardship to his United States citizen
child—the son of his Bulgarian girlfriend, whom he had married in 2012. See 8 U.S.C.
§ 1229b(b)(1).
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At the removal hearing, the IJ found that the evidence established Vidinski’s
attempt to obtain an immigration benefit by entering into a fraudulent marriage, and so
he was removable under § 1227(a)(1)(A). Indeed, when faced with the government’s
evidence, Vidinski declined to testify, apparently laboring under the misapprehension
that his silence could not be taken against him. See United States ex rel. Bilokumsky v. Tod,
263 U.S. 149, 154–55 (1923) (“[T]here is no rule of law which prohibits officers charged
with the administration of the immigration law from drawing an inference from
the silence of one who is called upon to speak.”). Regarding cancellation based on
hardship to Vidinski’s child, the IJ concluded that Vidinski had failed to establish his
own good moral character or show that his child would suffer exceptional hardship if
Vidinski were to return to Bulgaria. Vidinski appealed to the Board, which upheld the
IJ’s decision.
In 2013 Vidinski filed with the Board a motion to reopen his immigration
proceedings based on ineffective assistance of counsel. The Board denied that motion,
and it later denied his motion to reconsider that decision.
The litigation continued with Vidinski’s consolidated petitions to this court
seeking review of both the removal decision and the Board’s denial of his first motion to
reopen. Vidinski v. Lynch, 840 F.3d 912 (7th Cir. 2016). We saw no reason to upset the
Board’s decision that Vidinski was removable for overstaying his visa. Next, we held
that the Board’s denial of his request for cancellation of removal based on hardship to
his child was a discretionary decision that we lacked jurisdiction to review. Id. at 915.
We also deferred to the Board’s finding that the government had established by clear
and convincing evidence that Vidinski’s marriage was fraudulent, and that removal on
that ground was proper. Id. at 916–17. Finally, we saw no error in the Board’s dismissal
of Vidinski’s motion to reopen based on alleged ineffective assistance of counsel. Id. at
919.
The petition now before us had its origin in a motion Vidinski filed in August
2018, in which he again asked the Board to reopen or reconsider his case. He argued
principally that he was eligible for cancellation of removal under Pereira, 138 S. Ct. at
2110. In Pereira, the Supreme Court held that a Notice to Appear that fails to designate
the time or place of the removal proceedings does not constitute a “notice to appear
under section 1229(a),” and therefore does not trigger the statutory “stop-time rule.” Id.
Aliens who have accrued ten years of continuous physical presence in the United States
may be eligible for cancellation of removal, see § 1229b(b)(1), but under the stop-time
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rule, § 1229b(d)(1)(A), that period of continuous physical presence ends when the alien
is served with a Notice to Appear under § 1229(a). See Pereira, 138 S. Ct. at 2109.
Reading Pereira broadly, Vidinski asserted before the Board that DHS’s failure to
specify the date and time in his initial Notice to Appear deprives the immigration court
of jurisdiction to order removal. He alternatively pleaded with the Board to excuse the
time-and-number bars on his motion to reopen as a matter of equity, and to conclude
that he was prejudiced by his former counsel’s ineffective assistance. He also urged that
Pereira constituted a fundamental change in law and that the Board should therefore
exercise its sua sponte authority to reopen his removal proceedings. Finally, he
contended that the Board should reopen the proceedings in order to enable him to file
another application for cancellation of removal based on harm to a second citizen-child.
The Board denied Vidinski’s motion. Citing Matter of Bermudez-Cota, 27 I. & N.
Dec. 441, 447 (BIA 2018), it held that a Notice to Appear that does not specify the date
and time of the alien’s removal hearing suffices to vest an IJ with jurisdiction when, as
here, notice of the date and time is later sent to the alien in a separate document.
Regarding equitable tolling, the Board concluded that Vidinski had not shown the
requisite diligence before filing his latest motion to reopen or reconsider. The Board also
determined that Vidinski had failed to demonstrate exceptional circumstances
warranting an exercise of its sua sponte authority to reopen. Finally, the Board ruled that
Vidinski had not made a prima facie showing that his removal from the United States
would result in hardship to his second child.
Vidinski now petitions for judicial review. He challenges the Board’s
jurisdictional holding and contends that the Board erred by exploring the facts
underlying his application for cancellation of removal at the motion-to-reopen stage.
After he filed his opening brief, we rejected a nearly identical jurisdictional challenge in
Ortiz-Santiago, 924 F.3d at 958.
II
At oral argument, counsel recognized that Ortiz-Santiago poses a major obstacle
to Vidinski’s petition for review. In that opinion, we thoroughly considered whether the
requirement of a precise date, time, and location in § 1229(a)(1)(G)(i) is jurisdictional, in
light of both the statutory language and Pereira. We concluded that it is not. See 924 F.3d
at 958. Instead, we found that this requirement is immigration law’s version of a claim-
processing rule, the violation of which can be forfeited if an objection is not timely
raised. Id. Joining the Second, Sixth, and Ninth Circuits—and contradicting none on this
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point—Ortiz-Santiago held that an IJ’s jurisdiction “is secure despite the omission” of
the time, date, and place in the Notice to Appear. Id. (citing Banegas Gomez v. Barr, 922
F.3d 101 (2d Cir. 2019); Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019); Karingithi v.
Whitaker, 913 F.3d 1158 (9th Cir. 2019)).
Because the petitioner in Ortiz-Santiago did not contest this feature of his Notice
to Appear until after the IJ’s decision was under review by the Board, we found that the
argument was untimely and therefore forfeited. Ortiz-Santiago, 924 F.3d at 964.
Vidinski’s situation is identical. Indeed, his argument is even more belated than Ortiz-
Santiago’s. The IJ found him removable in 2012, but he did not challenge the omissions
in his initial notice to appear until six years later (August 2018), in his latest motion to
reopen or reconsider. Vidinski was not entitled to remain silent when an objection could
have been crafted before 2018. See id. at 964 (explaining why Pereira-like challenge to
flawed notice was conceivable by 2016, if not sooner).
Still, Ortiz-Santiago holds that relief might be available for those untimely
objectors who can show (1) that the untimeliness is excusable, and (2) that prejudice
flows from the flawed notice. 924 F.3d at 965. Thus, if Vidinski could show excusable
delay in arguing that his Notice to Appear was defective and that he suffered prejudice,
he might have a debatable contention. But Vidinski has not made such an argument to
either the Board or this court. And he could have done so: although he filed his opening
brief here before Ortiz-Santiago was decided, his reply brief was filed ten days after the
decision yet does not mention it.
Vidinski does argue, however, that the date-and-time requirements are
“mandatory” and therefore must be enforced by this court. True, the information that
must be included in a Notice to Appear may be a mandatory claim-processing
requirement. But claim-processing rules, even if “mandatory,” must be enforced only
when a party properly raises them. Manrique v. United States, 137 S. Ct. 1266, 1272
(2017). If not timely raised, arguments based on violations of that type of requirement
can be forfeited. Ortiz-Santiago, 924 F.3d at 958. That is the situation in which Vidinski
finds himself: although he raised other challenges to his Notice to Appear, he never
alerted the IJ even generally to the date-and-time argument, and so he has forfeited it.
For what it is worth, it is far from clear that Vidinski could establish excusable
neglect. He would need to overcome the fact that he could have argued to the IJ that,
based on the plain language of § 1229(a)(1)(G)(i), his Notice to Appear was defective.
See Ortiz-Santiago, 924 F.3d at 964. Moreover, Orozco-Velasquez v. Attorney General United
States, 817 F.3d 78 (3d Cir. 2016)—holding that a deficient Notice to Appear does not
No. 18-3413 Page 6
trigger the stop-time rule—was published in 2016, and nothing in the record suggests
that Vidinski was prevented from citing that case well before his 2018 motion to reopen
or reconsider. See Ortiz-Santiago, 924 F.3d at 964.
It is also unlikely that Vidinski could establish prejudice. He received his Notice
to Appear and contested the charge of removability. He then received a separate notice
furnishing the date and time of his removal proceedings. He attended the hearing, was
represented by a lawyer, disputed the charge of removability, and argued for
cancellation of removal based on harm to his citizen child (albeit without testifying). In
short, Vidinski received the formal (though somewhat incomplete) notice, had time to
prepare for his hearing, and was not otherwise prejudiced by the omissions in his initial
notice. See Ortiz-Santiago, 924 F.3d at 964–65. (His arguments based on his allegedly
ineffective lawyer rest on a different legal theory and thus do not help him here.)
Finally, Vidinski argues that the Board committed an error of law when it held
that he failed to demonstrate a prima facie case of hardship-based eligibility for
withholding of removal. According to him, the Board impermissibly engaged in fact-
finding and should have instead remanded his case for the IJ to determine whether his
son would suffer the requisite hardship. But longstanding precedent holds that the
Board may deny a motion to reopen because “the movant has not established a prima
facie case for the underlying substantive relief sought.” INS v. Abudu, 485 U.S. 94, 104
(1988); Moosa v. Holder, 644 F.3d 380, 385 (7th Cir. 2011). That is what happened here.
We see no abuse of discretion in the Board’s decision to deny his time- and number-
barred motion to reopen, to the extent we have jurisdiction at all to review it.
We DENY Vidinski’s petition for review.