BIA Purposely Setting the Stage for More Confusion
© Attorney Farhad Sethna, 2019
In Matter of Sylvestre Mendoza-Hernandez and Rufina Capula-Cortes 27 I&N Dec. 520 (BIA 2019), issued May 1, 2019, the BIA further confuses the Supreme Court’s decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). To clarify: I have written on this topic before on my blog; www.immigration-america.com. Please review those prior articles to get some background on this topic.
Briefly, Pereira held that if an alien had not received a Notice to Appear which contained the date, time and place of the hearing before the immigration court, then such a Notice to Appear was defective for purposes of triggering the “stop time” rule that would bar an alien from applying for cancellation of removal. That’s all the Supreme Court said in Pereira v. Sessions.
The BIA has continued to make hash out of this very clear ruling, and in the most recent decision, Mendoza-Hernandez / Capula-Cortes id., the BIA held, in a divided decision (9-6) that the Supreme Court’s decision in Pereira applied only in cases where not only was the NTA defective as described in Pereira, but more than 10 years had elapsed from the date the alien had entered the United States until the time a new Notice of Hearing (more on this later) was issued by the immigration court, advising the alien of the date, time and place of his immigration court hearing.
Briefly, the BIA has purposely confused the provision requiring “Notice to Appear” with the provision requiring “Notice of Hearing”.
The Notice to Appear is issued by the Department of Homeland Security to an alien placing them in removal proceedings. That Notice is not issued by the court. It is issued by the DHS. That Notice contains a space for a date, time, and place of the immigration court hearing. That date and time is most often left blank, because it is then up to the immigration court to issue an actual “Notice of Hearing” which would intimate the respondent of the date and time of the hearing at the immigration court. Once the DHS files the Notice to Appear with the Immigration court, then the Immigration Court sends a Notice of Hearing to the alien stating the date, time and place of the alien’s hearing before the Immigration Court.
Therefore, the Supreme Court held in Pereira v. Sessions that a Notice to Appear which did not include the date and time of a respondent’s actual appearance before the immigration court was a defective notice to appear. Therefore, such a defective notice to appear could not trigger the “stop time” rule barring a respondent from applying for cancellation of removal for nonpermanent residents for failing to accrue the necessary 10 years of time in the United States prior to the service of a “Notice to Appear”.
By contrast, a “Notice of Hearing” is a Notice issued by the immigration court which is sent to the alien at the last known address of the alien (typically, the address on the Notice to Appear), advising the alien of the date and time of the hearing. The Notice of Hearing is not issued by the Department of Homeland Security, it is issued by the immigration court.
However, in Mendoza-Hernandez / Capula-Cortes, the BIA decided to turn on its head the clear meaning of these terms, and held instead that a simple service of a “Notice of Hearing” to the alien also triggered the “stop time” clock, thus barring the non-LPR alien from applying for Cancellation of Removal.
The BIA’s decision is clearly and patently wrong. Despite the BIA’s convoluted gymnastics attempting to justify its decision, the decision is simply a matter of political expediency: in this warped view of immigration under the Trump administration, even the BIA has been co-opted as a (partly willing) cosponsor of the Trump administration’s anti-immigrant policies. However, this decision goes breathtakingly far: not only does the decision abrogate the rule of law, as set forth in the statutes and the regulations, but it further goes against a binding Supreme Court decision, issued in matter of Pereira v. Sessions. Such a breathtaking leap of jurisprudential license is scary for the future of the independence of the immigration courts. If the immigration courts can be bent to the extent that they have in attempting to carve out exceptions to Pereira v. Sessions, then it follows suit that other decisions and other regulations will soon be mowed down on the slippery slope of the BIA’s incorrect and patently false decision making process.
Until another case comes up in a circuit court, and thereafter there is a split within the circuits, causing the matter to go up to the Supreme Court, Matter of Mendoza-Hernandez / Capula-Cortes will remain in effect. It behooves the seasoned immigration practitioner to challenge the incorrect holding of this case at every step of the way, laying the grounds for a successful appeal to the circuit courts, and thereafter, potential for argument before the Supreme Court once again.
For specific rulings on how Mendoza-Hernandez / Capula-Cortes would work within a particular respondent’s federal circuit, please consult the actual case law (not the case law selectively cited in the BIA decision), to determine if the “stop time” rule still applies or does not in a respondent’s particular circuit.
For further on this legally clear but politically loaded topic, stay tuned!
© Farhad Sethna, Attorney, 2019
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.