Top of the Ninth: BIA Certification and Pereira

Top of the Ninth: BIA Certification and Pereira

While the Board of Immigration Appeals (BIA) may have found that Pereira is a very limited decision that has nothing to do with anything, the district courts have been finding that the Notices to Appear (NTA) that lack the date and time of the hearing do not confer jurisdiction on the immigration courts. Last week, the District Court of Nevada (in one of my favorite cases ever) dismissed an illegal reentry indictment under 8 U.S.C. § 1326 finding that the immigration court that ordered issued the removal order never had jurisdiction over the case because the NTA was defective. I recommend that everyone continue arguing Pereira and that everyone read these district court decisions that decimate the Government’s arguments and the BIA’s decision in Bermudez-Cota. In Ninth Circuit news, the Ninth held that it had no jurisdiction to review the BIA’s discretionary decision not to certify a claim to itself for review; because, well, it’s discretionary.


The Ninth Circuit Lacks Jurisdiction to Review the Decision of the BIA Declining to Certify a Case to Itself

The Ninth Circuit held that it lacked jurisdiction to review the decision of the BIA declining to certify a case to itself. The entire case revolves around the interpretation of 8 C.F.R. § 1003.1(c). I think it’s a little easier to understand the law in this case if you understand the facts.

Asif Idrees is a Pakistani national. In 1997, the Government charged him under INA § 212(a)(6)(A)(i) as a noncitizen present in the United States without permission. Mr. Idrees admitted the charge, conceded removability, and applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) found that Mr. Idrees was a member of a terrorist organization in Pakistan (the Muttahida Qaumi Movement) and was statutorily ineligible for asylum and withholding. The IJ found that Mr. Idrees was not credible and that he did not prove that he was eligible for CAT protection. The IJ ordered Mr. Idrees removed to Pakistan. Mr. Idrees appealed the IJ’s decision but only challenged the adverse credibility determination. On June 28, 2005, the BIA dismissed Mr. Idrees’s appeal. Mr. Idrees did not file a petition for review with the Ninth Circuit.

On April 3, 2006, Mr. Idrees filed a Motion to Reopen with the BIA arguing ineffective assistance of counsel and arguing that he was now prima facie eligible for adjustment of status. Mr. Idrees argued that his prior counsel’s ineffective representation prevented him from timely filing an immediate relative petition and from timely appealing the 2005 removal order. The BIA agreed that the prior counsel was ineffective as to the immediate relative petition but concluded that prior counsel was not ineffective in failing to appeal, because Mr. Idrees did not retain him to file the appeal. Instead, Mr. Idrees had hired another lawyer to handle the removal issues. The BIA reopened the case for the limited purpose of allowing Mr. Idrees to apply for adjustment of status and they remanded the case to the IJ.

The IJ continued the case several times to allow USCIS to adjudicate the adjustment application. (ICE had withdrawn its charge under INA § 212(a)(6) and lodged a new charge under INA § 212(a)(7)(A)(i) asserting that Mr. Idrees was an arriving alien. Under the regulations, a noncitizen in proceedings must file their adjustment application with the IJ, but a noncitizen who the Government classifies as an arriving alien must file their adjustment application with USCIS. 8 C.F.R. § 1245.2.) While his adjustment application was pending, Mr. Idrees filed a new asylum application based on changed circumstances. Mr. Idrees explained that he is a practicing Muslim married to a practicing Christian and that he would be persecuted in Pakistan based on his mixed marriage. In November 2012, USCIS denied his adjustment application finding that the marriage was fraudulent. The case went to hearing before the IJ and in May 2013, the IJ found that Mr. Idrees was ineligible for adjustment of status, or asylum relief, and that he was not eligible for protection under CAT. The IJ ordered Mr. Idrees removed to Pakistan.

Mr. Idrees appealed the IJ’s decision to the BIA arguing that the IJ should have certified his claim for ineffective assistance of counsel to the BIA for consideration. The BIA denied the case noting that it had already rejected Mr. Idrees’s ineffective assistance of counsel claim in it’s 2006 order reopening the case. The BIA affirmed the IJ’s removal order and Mr. Idrees petitioned for review.

The question before the Ninth Circuit was, did it have jurisdiction to consider whether the BIA improperly denied Mr. Idrees’s motion for certification of his claim for ineffective assistance of counsel? The regulations grant the BIA authority to accept a procedurally improper appeal by certification. Mr. Idrees argued that the BIA and the IJ erred by not exercising their discretion to certify Mr. Idrees’s ineffective assistance of counsel claim. The regulation provides as follows:

Jurisdiction by certification. The Commissioner, or any other duly authorized officer of the Service, any Immigration Judge, or the Board may in any case arising under paragraph (b) of this section certify such case to the Board. The Board in its discretion may review any such case by certification without regard to the provisions of § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the Board regarding the case, including the opportunity request oral argument and to submit a brief.

8 C.F.R. § 1003.1(c).

The Ninth Circuit noted that judicial review under the Administrative Procedure Act is limited to the review of final agency actions that are not statutorily precluded from review or committed to agency discretion. 5 U.S.C. § 701(a). The Ninth Circuit joined the Second, Eighth, and Tenth Circuits in holding that the decision of whether to certify a claim under 8 C.F.R. § 1003.1(c) is committed to agency discretion. Therefore, the Ninth does not have jurisdiction to review it. But Mr. Idrees did not go down without a fight. He argued that the denial of the opportunity to be heard on his ineffective assistance of counsel claim violated his due process rights. The Ninth held, “We reject this argument because “abuse of discretion challenges to discretionary decisions, even if recast as due process claims do not constitute colorable constitutional claim.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007).” Idrees v. Whitaker, No. 15-71573, slip op. at *9-10 (9th Cir. Dec. 13, 2018).

Idrees v. Whitaker, No. 15-71573 (9th Cir. Dec. 13, 2018).

A Notice to Appear that Lacks the Time and Date of the Hearing Does Not Confer Jurisdiction on the Immigration Court

Another district court, this time from Nevada, has found that a putative NTA that lacks the time and date of the hearing does not confer jurisdiction on the immigration court. Accordingly, the immigration judge’s removal order is invalid, and the noncitizen cannot be prosecuted for illegal reentry under 8 U.S.C. § 1326.

On February 7, 2018, DHS found Raul Soto-Mejia in California and served him with an NTA that lacked the date and time of the hearing. On February 12, 2018, DHS filed the NTA with the immigration court in Adelanto, California. On February 27, 2018, EOIR issued a Notice of Hearing notifying Mr. Soto-Mejia that his hearing was scheduled on March 7, 2018 at 1:00 pm. The Notice of Hearing did not reference the nature or basis of the legal issues or charges for the removal proceedings. It also did not reference any particular NTA. On March 7, 2018, Mr. Soto-Mejia appeared at the hearing and was ordered removed from the United States. On March 8, 2018, the Government removed Mr. Soto-Mejia. Mr. Soto-Mejia came back to the United States and was ordered removed again on March 19, 2018. The March 19, 2018 order reinstated the prior order. The Government then charged Mr. Soto-Mejia criminally for illegal reentry under 8 U.S.C. § 1326.

Mr. Soto-Mejia moved to dismiss the criminal case in district court arguing that the prosecution derived from a defective proceeding. He argued that the immigration court never had jurisdiction over the immigration case because the Notice to Appear was defective and failed to confer jurisdiction on the immigration court. The Government countered with several argument; each of which the district court dismissed. Everyone should be studying this case and using the district court’s arguments in their own Pereira motions. The Government made the following arguments in opposition to Mr. Soto-Mejia’s motion. The District Court judge dismissed all of the arguments. (1) The Government argues that Mr. Soto-Mejia waived his jurisdictional argument. The Government claims that the issue was one of personal jurisdiction rather than subject matter jurisdiction. By not raising a jurisdictional objection in the immigration court and by appearing in immigration court, the Government argues that Mr. Soto-Mejia conceded jurisdiction and waived the jurisdictional argument. (2) The Government argues that the immigration court’s jurisdiction is determined by the federal regulations and that the NTA in this case contained the necessary information under the regulations to vest the immigration court with jurisdiction. (3) The Government argues that the Supreme Court’s holding in Pereira is limited to cases in which the court must determine the validity of an NTA only as it relates to the “stop-time rule.” (4) The Government argues that there is no prejudice to Mr. Soto-Mejia because the Notice of Hearing and Mr. Soto-Mejia’s appearance at the hearings cured the defect in the NTA. “The Court rejects all of the government’s argument.United States v. Soto-Mejia, No. 2-18-cr-00150-RFB-NJK, slip op. at *3 (D.Nev. Dec. 7, 2018) (emphasis added).

So, let’s go through each of the District Court’s holds because they are awesome! First, the District Court finds that the Supreme Court’s holding in Pereira is applicable and controlling. Under the plain language of the regulations, jurisdiction of the immigration court “vests” only when a charging document is filed with the immigration court. A Notice to Appear is a charging document under 8 C.F.R. § 1003.13. Here’s the argument: “Relying on the reasoning of Pereira, this Court finds that the definition of a “Notice to Appear” is controlled by statute and not regulation, as the Supreme Court expressly rejected in Pereira the regulation-based interpretation by the Board of Immigration Appeals in Matter of Camarillo, 25 I.&N. Dec. 644 (BIA 2011). Pereira, 138 S. Ct. at 2111-14. And, pursuant to Pereira, a Notice to Appear must include the time and location for the hearing.” Soto-Mejia, slip op. at *4. As the NTA lacked the time and date of the hearing, the immigration court never had jurisdiction over the case.

Next, the District Court rejects the Government’s argument that Mr. Soto-Mejia waived his jurisdictional argument by not bringing it earlier and by participating in immigration proceedings. The District Court notes that the Government is conflating the concept of personal jurisdiction with subject matter jurisdiction. “Subject matter jurisdiction is a limitation on “federal power” that “cannot be waived” so “a party does not waive the requirement [of subject matter jurisdiction] by failing to challenge jurisdiction early in the proceedings.” Ins. Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 702-03 (1982). Moreover, the plain language of the regulation establishing the immigration court’s jurisdiction explicitly notes that an immigration court’s authority only “vests” with the filing of a “charging document” and the regulation makes no reference to a waiver exception to this requirement for subject matter jurisdiction. 8 C.F.R. § 1003.14 (a).” Soto-Mejia, slip op. at *4.

The District Court rejects the Government’s argument that the holding in Pereira is limited to cases determining the applicability of the stop-time rule. The Supreme Court in Pereira “unambiguously proclaimed: “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).” Pereira, at 2113-14.” Soto-Mejia, slip op. at *5 (emphasis in the original). “There is no basis to assume or conclude that the definition of a “Notice to Appear” under Section 1229(a) would be different without reference to the stop-time rule.” Id.

The District Court rejected the Government’s argument that a putative NTA could be cured by the Notice of Hearing. The District Court notes that the argument is contrary to the plain text of the regulation. Section 1003.14(a) states that an immigration court’s jurisdiction only vests with the filing of a charging document. A Notice of Hearing is not one of the charging documents referenced in Section 1003.13. A Notice of Hearing cannot commence an immigration proceeding by subsequently providing a time and location for a removal hearing. Consequently, if the immigration court’s jurisdiction never arose because the NTA was invalid, then there are no proceedings in which a Notice of Hearing Could be filed. There is nothing to cure. BRAVO!!!!!!!

And, then, as if I could not love this case anymore, the District Court plunges the stake into the heart of the Government’s arguments. As I am reading this case, I am imagining Bram Stoker describing the moment when Van Helsing and his crew kill Dracula:

But, on the instant, came the sweep and flash of Jonathan's great knife. I shrieked as I saw it shear through the throat; whilst at the same moment Mr. Morris's bowie knife plunged in the heart.

It was like a miracle, but before our very eyes, and almost in the drawing of a breath, the whole body crumbled into dust and passed from our sight.

Bram Stoker, Dracula, Ch. 27. To be clear, the District Court does not quote Dracula. But I am imaging the knife slitting the throat while the second knife is plunged into the heart of the Government’s Pereira arguments as I am reading this case. It’s that awesome.

Back to the decision. The District Court further destroys the Government’s argument that the Notice of Hearing cures the defective NTA by listing the time and date of the hearing. The District Court notes that the Notice of Hearing does not reference a specific Notice to Appear; it does not reference a specific NTA; and it does not contain information about the legal issues or charges which serve as a basis for the removal proceedings. The only common identifying information is the A number. So, if an individual had multiple potential charges or legal issues related to their immigration status, the Notice of Hearing could not inform them what charges were at issue in the upcoming hearing and the Notice of Hearing could be filed months or years after the NTA. “As a Notice of Hearing, like the one here, is not explicitly connected to a particular Notice to Appear and the associated charges, the Court finds that it cannot serve to ‘cure’ a defective Notice to Appear such as in this case.” Soto-Mejia, slip op. at *6. Did I mention how much I love this case?

Here’s the ending:

For the reasons stated, the Court finds that the March 7 and the March 19 deportation orders are void due to the immigration court’s lack of jurisdiction. As these orders are void, the Court finds that the Government cannot establish a predicate element – the prior removal or deportation of Soto-Mejia – of the sole offense in the Indictment. The Indictment in this case must therefore be dismissed.

Soto-Mejia, slip op. at *7. We must all be making Pereira motions in EVERY. SINGLE. CASE - no matter where the case is procedurally; because no one can waive subject matter jurisdiction.

U.S. v. Soto-Mejia, No. 2:18-cr-00150-RFB-NJK (D. Nev. Dec. 7, 2018).


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