Haiyan Chen v. William Barr ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2375
HAIYAN CHEN,
Petitioner,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A089-283-398.
____________________
ARGUED MARCH 3, 2020 — DECIDED MAY 29, 2020
____________________
Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.
EASTERBROOK, Circuit Judge. Haiyan Chen, a citizen of
China, entered the United States without inspection (that is,
by stealth) in 2004. She was detected in 2010, and immigra-
tion officials opened removal proceedings. The charging
document is called a “Notice to Appear,” and a form with
that caption was dated April 27, 2010. The form did not meet
the statutory requirements for a Notice to Appear, however,
because it omiaed the time and place for a hearing. See 8
2 No. 19-2375
U.S.C. §1229(a)(1)(G)(i); Pereira v. Sessions, 138 S. Ct. 2105(2018). Immigration officials sent Chen a separate document,
dated July 29, 2010, with that information. Chen appeared as
ordered, and many other hearings followed. She asked for
asylum, which an immigration judge denied on the ground
that 8 U.S.C. §1158(a)(2)(B) gives aliens only one year after
entering the United States to request that relief. The Board of
Immigration Appeals dismissed her appeal on March 28,
2017, and we denied a petition for review. Chen v. Sessions,
No. 17-1797 (7th Cir. Jan. 4, 2018) (nonprecedential).
In September 2018 Chen filed a motion asking the Board
to reopen her case so that she could seek cancellation of re-
moval, a remedy available to some aliens who have lived in
the United States for a decade. She recognized that the mo-
tion was untimely—a statute allows only 90 days after the
Board’s original decision, see 8 U.S.C. §1229a(c)(7)(C)(i)—but
asked for the benefit of equitable tolling. She also recognized
that she had not sought cancellation of removal during the
original proceedings, even though they continued past the
tenth anniversary of her arrival. She contended that, until
the Supreme Court issued Pereira in June 2018, neither she
nor her lawyers recognized that she might be eligible for that
relief. Pereira opened their eyes, and Chen contended that
she should receive its benefit.
The potential bearing of Pereira is this: although an alien
accumulates years of physical presence starting from the
date of entry, two events stop the accumulation of time. 8
U.S.C. §1229b(d)(1). Commission of a crime that renders an
alien inadmissible is one, and service of a Notice to Appear
under §1229(a) is the other. Chen and her lawyer assumed
that the document she received in April 2010 stopped the ac-
No. 19-2375 3
crual of time, but Chen’s motion to reopen argued that Perei-
ra holds otherwise and that the time continued to run—
indeed, that it is still running, because §1229b(d)(1) does not
make entry of a final removal order a stop-time event.
The Board assumed without deciding that Chen is enti-
tled to equitable tolling of the 90-day limit to seek reopening.
It denied the motion on the merits, however. A recent deci-
sion, Ma9er of Mendoza-Hernandez, 27 I.&N. Dec. 520 (BIA
2019) (en banc), holds that the required components of a No-
tice to Appear need not be in a single document. As long as
multiple documents collectively provide the information re-
quired by statute, they may be treated as a Notice to Appear,
effective on the date of the document that supplied the last
required piece of information. Mendoza-Hernandez under-
stood Pereira to hold that multiple notices cannot be com-
bined with the effective date of the first document, but not to
address what happens once all information has been provid-
ed. Mendoza-Hernandez held that the time stops once the al-
ien has all of the information required by statute.
Two courts of appeals have agreed with Mendoza-
Hernandez. See Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir.
2019); Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020). Two
have disagreed. See Guadalupe v. A9orney General, 951 F.3d
161 (3d Cir. 2020); Banuelos-Galviz v. Barr, 953 F.3d 1176 (10th
Cir. 2020). Another initially rejected Mendoza-Hernandez, see
Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019), but vacated that
decision and set the maaer for hearing en banc. 948 F.3d 989(9th Cir. 2020). Chen wants us to side with Guadalupe and
Banuelos-Galviz and to disapprove Garcia-Romo, Yanez-Pena,
and Mendoza-Hernandez.
4 No. 19-2375
The parties have engaged in many subsidiary debates,
such as whether Chevron U.S.A. Inc. v. Natural Resources De-
fense Council, Inc., 467 U.S. 837 (1984), applies to the Board’s
interpretation of sections 1229(a) and 1229b(d)(1)(A). See INS
v. Aguirre-Aguirre, 526 U.S. 415 (1999) (holding that Chevron
applies to many of the Board’s decisions interpreting stat-
utes governing immigration issues). There is a debate about
the singular versus the plural: Chen observes that §1229(a)
speaks of “a” notice, while the Aaorney General points to
the Dictionary Act, 1 U.S.C. §1, under which the singular and
plural are equivalent unless the context requires otherwise.
See also Rowland v. California Men’s Colony, Unit II Men’s Ad-
visory Council, 506 U.S. 194 (1993) (only the linguistic context
maaers for this purpose). We conclude, however, that it is
not necessary to address these subjects or decide whether we
agree with Mendoza-Hernandez on the merits. There is an an-
tecedent procedural obstacle.
Pereira addressed a proceeding in which the alien had re-
quested cancellation of removal as part of the initial proceed-
ing. Pereira did not receive an effective notice with a date for
a hearing until after he had been in the United States for 13
years. (An earlier notice, sent to the wrong address, did not
count.) As soon as he received effective notice of a hearing,
Pereira sought cancellation of removal. That is what led the
Court to ask whether a document with the caption “Notice
to Appear,” but lacking a time and place for a hearing, satis-
fies the statute. The Justices concluded that all of the statuto-
rily required information is essential, and Pereira won be-
cause (a) he did not get that information until after he had
been in the United States for more than 10 years, and (b) he
requested cancellation of removal at the first opportunity.
No. 19-2375 5
Chen did not do that. She was in removal proceedings
well past her tenth anniversary of arrival but did not seek
cancellation of removal until after we denied her petition for
review. Although Pereira raised in 2013 the argument that
prevailed before the Supreme Court in 2018, Chen did not
ask for relief until after Pereira had been decided.
She is not alone. After Pereira this circuit was inundated
by requests to apply that decision to closed immigration cas-
es, on the ground that a defective charging document de-
prives the agency of jurisdiction to order an alien’s removal.
We addressed that argument in Ortiz-Santiago v. Barr, 924
F.3d 956 (7th Cir. 2019), holding:
The requirement that a Notice include, within its four corners,
the time, date, and place of the removal proceeding is not “juris-
dictional” in nature. It is instead the agency’s version of a claim-
processing rule, violations of which can be forfeited if an objec-
tion is not raised in a timely manner.
Id. at 958. Ortiz-Santiago entered without inspection in 1999
and, after removal proceedings began in 2015, sought cancel-
lation of removal. But although by 2015 Pereira had been
making his argument for two years, Ortiz-Santiago did not
contest the sufficiency of the document captioned Notice to
Appear. An Immigration Judge, and the Board, concluded
that Ortiz-Santiago had not established the degree of hard-
ship that could support relief under §1229b. (He had been in
the United States for more than a decade before removal
proceedings began, so the Notice to Appear did not maaer
for stop-time purposes.) Only after Pereira had been decided
did Ortiz-Santiago assert that his proceedings had been inva-
lid from the outset. That was too late, we held. A problem in
the charging document could and should have been pointed
6 No. 19-2375
out promptly, so that any error could be fixed. Ortiz-Santiago
wrapped up:
Relief will be available for those who make timely objections, as
well as those whose timing is excusable and who can show prej-
udice.
924 F.3d at 965. We denied the petition for review, without a
remand, because the defect “was a failure to follow a claim-
processing rule”. Id. at 966.
This brings us to Chen. Ortiz-Santiago at least sought
cancellation of removal in the original removal proceeding,
though he failed to make the sort of argument that carried
the day in Pereira. Chen neither made a Pereira-like argument
nor sought cancellation of removal. Given the conclusion in
Ortiz-Santiago that a defect in the charging document is not a
jurisdictional defect, we ask (as Ortiz-Santiago itself did)
whether Chen made a timely objection or can show excusa-
ble delay and prejudice.
The answer to all three is “no.” Chen did not object to the
charging documents for years, until after Pereira had been
decided. (In this respect Chen and Ortiz-Santiago are alike.)
She does not have a good excuse for delay. True enough,
Dababneh v. Gonzales, 471 F.3d 806, 809–10 (7th Cir. 2006),
held that a “Notice to Appear” is valid if a date is provided
later, but Bousley v. United States, 523 U.S. 614, 622–23 (1998),
holds that adverse precedent in a local court of appeals does
not excuse omiaing a legal argument, unless it is one a
knowledgeable lawyer could not have imagined. See also
United States v. Manriquez-Alvarado, 953 F.3d 511, 513–14 (7th
Cir. 2020) (holding that this principle applies to Pereira and
§1229(a)).
No. 19-2375 7
Chen cannot show prejudice either. She does not contend
that she lacked actual knowledge of the time and place for
the hearing. She not only received notice but also appeared
(with counsel) in Chicago at 9 a.m. on December 14, 2011, as
scheduled. If Chen had objected before or at that hearing to
the deficiency in the Notice, the agency could have cured
that problem on the spot, and the hearing would have con-
tinued. (That was true in Manriquez-Alvarado too.) Chen has
never argued that she was prejudiced by the delivery of the
statutory information in two documents rather than one. (A
cure in December 2011 would have stopped time before
Chen reached 10 years’ presence.)
Although Ortiz-Santiago thus appears to spell doom for
Chen’s position, we asked at oral argument whether the
principle of SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943),
blocks us from deciding on a ground that the Board did not
mention. We invited and have received supplemental briefs
on that subject. We now make explicit what the panel in
Ortiz-Santiago assumed: failure to raise an issue properly be-
fore an agency is not the sort of maaer that an agency must
consider. Judges must permit agencies to address and re-
solve those issues that may make judicial review inappropri-
ate or unnecessary. But when failure to present an issue to
an agency furnishes a good reason to deny a petition for ju-
dicial review, a Chenery-style remand is unnecessary.
Exhaustion of administrative remedies provides an ex-
ample. Exhaustion is a condition of judicial review in immi-
gration cases, 8 U.S.C. §1252(d)(1), but not a subject within
the scope of Chenery. When an alien fails to raise an issue on
time, in the right way, or at all, before the Immigration Judge
and the Board of Immigration Appeals, the court denies the
8 No. 19-2375
petition for review under §1252(d)(1) without sending the
proceeding back to ask the Board what it thinks about the
subject. A procedural forfeiture is an adequate reason to end
the process of judicial review. That’s what has occurred here:
Chen took far too long to contest the adequacy of the charg-
ing document, just as Ortiz-Santiago did. If Chen had ad-
vanced a plausible argument that she suffered prejudice, we
would remand for the Board to consider that possibility. But,
as we have mentioned, Chen aaended every scheduled hear-
ing and does not explain how the use of two documents ra-
ther than one prejudiced her. It is the agency that potentially
suffers prejudice from Chen’s delay: the problem could have
been fixed in 2010 or 2011 or 2012 or 2013, before Chen had
been in the United States for a decade.
There is another way to read Ortiz-Santiago. Perhaps the
court bypassed Chenery because any possible error was
harmless. That is an established reason for deciding without
remand. See Cronin v. Department of Agriculture, 919 F.2d 439,
442–43 (7th Cir. 1990) (futile remands are unnecessary); Bo-
rovsky v. Holder, 612 F.3d 917, 920–21 (7th Cir. 2010) (remand
is unnecessary when it would lead to a finding of harmless-
ness). If an application of the harmless-error rule is the best
way to understand Ortiz-Santiago, the doctrine is equally ap-
plicable to Chen’s situation. The Board rejected Chen’s ar-
gument under Mendoza-Hernandez, finding that the two doc-
uments added up to one valid Notice to Appear. Forfeiture
would have been an alternative ground of decision, here as
in Ortiz-Santiago. By ignoring the problem when it could
have been fixed, Chen bypassed the benefit of the claim-
processing rule. A person who allows a procedural error to
lurk in the record until the 10 years have passed, and brings
No. 19-2375 9
it to light only then, has surrendered any opportunity for ju-
dicial relief.
The petition for review is denied.