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A Defective NTA is a Valid Charging Instrument

 

The Fifth Circuit Court of Appeal not only reaffirmed that a defective Notice to Appear (“NTA”) remains valid as a charging instrument in removal proceedings.  It also reaffirmed that a respondent in removal proceedings must show more than the continuation of a trend, incremental change, individual incidents or changed personal circumstances subsequent to the time of a previous removal hearing to establish a material change in country conditions for the purpose of justifying an exception to the ninety day time limit for filing motions to reopen under 8 C.F.R. § 1003.2(c)(2).

The procedural history, facts of record, holding and rationale in Blas Eduardo Garcia v. Garland (March 14, 2022) No. 19-60793 are as follows:

 

Case History

In September 2018, the Petitioner filed a motion to reopen with the Board of Immigration Appeals (“BIA”).

The BIA denied the motion.

The Petitioner then filed a second motion to reopen.

The BIA denied the second motion.

The Petitioner filed two petitions for review relating to the denials of each motion.

 

Facts

The Petitioner is a native and citizen of Mexico who first entered the United States in 1994.

The Petitioner received administrative voluntary departure in 2001 and subsequently returned to the United States without having been admitted or paroled.

In 2004, the DHS sent a defective NTA to the Petitioner charging that he was subject to removal under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended (“the Act”) as an alien who is present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than designated by the Attorney General.

The NTA did not include the time and place of the Petitioner’s initial removal hearing.  Instead, the NTA listed “a date to be set” and “a time to be set.”

In 2007 an Immigration Judge ordered the Petitioner removed from the United States.

The BIA affirmed the removal order in 2008.

The Petitioner was deported in 2010 and thereafter returned without inspection.

In September 2018, the Petitioner filed a motion to reopen with the BIA. He argued in part that, under both Pereira v. Sessions, 138 S. Ct. 2105 (2018), and the plain meaning of section 239(a)(1)(G)(i) of the Act, his NTA was deficient for failing to state the time and date of his removal proceedings.

The BIA denied the motion, concluding in part that it was time-barred and that reopening the proceedings under Pereira v. Sessions was foreclosed by Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019).

Then, the Petitioner filed a second motion to reopen seeking to apply for asylum and withholding of removal based on changed country conditions in Mexico.

According to the Petitioner, he was recently diagnosed with HIV and was receiving antiviral treatment. He argued that country conditions and his own personal circumstances had changed since 2007 and that because of his diagnosis, he would be perceived as a member of the LGBT community and would accordingly face a substantial risk of persecution and/or torture on account of his membership in the particular social groups of: (1) “[h]omosexuals in Mexico (imputed)”; (2) “[i]ndividuals in Mexico who are HIV positive”; and (3) “HIV positive men in Mexico.”

The BIA denied the Petitioner’s second motion, concluding that the motion to reopen was untimely and that the evidence Garcia submitted failed to demonstrate the kind of materially changed country conditions after the time of his 2007 removal hearing that would warrant an exception to the time limit for motions to reopen.

The BIA also determined that the Petitioner had “not made a prima facie showing that he would suffer mistreatment amounting to persecution in Mexico on account of a protected ground so as to make him eligible for asylum or withholding of removal” and that he had “not made a prima facie showing that he will more likely than not be tortured by, at the instigation of, or with consent or acquiescence of” the Mexican government.

The Petitioner filed two petitions for review contesting the denial of each motion to reopen.

 

Held

Petitions for Review DENIED

Rationale

With regard to his first motion to reopen, the Petitioner asserted that:

  1. Based on Pereira v. Sessions, 138 S. Ct. 2105 (2018), his NTA was deficient for failing to contain the time and date of his initial removal proceeding; and,
  2. according to the plain meaning of section 239(a)(1)(G)(i) of the Act, the immigration court lacked jurisdiction to conduct removal proceedings, in spite of 8 C.F.R. § 1003.15(b) and 1003.18(b) which conflict with statutory text.

With regard to his second motion to reopen, the Petitioner asserted that the BIA should not have denied it because he had established changed country conditions in Mexico that justify an exception to the ninety day filing deadline under 8 C.F.R. § 1003.2(c)(2).

The Fifth Circuit Court of Appeal, in Blas Eduardo Garcia v. Garland (March 14, 2022) No. 19-60793, reasoned as follows:

First Motion to Reopen

  • In Pereira v. Sessions, the United States Supreme Court held that a defective NTA that does not provide the time and place of removal proceedings, and thus does not comply with the requirements set forth in section 239(a) of the Act, does not stop the 10-year continuous-presence clock set forth in section 240A(d)(1) of the Act (the “stop-time rule”). Pereira v. Sessions, at 2109-10.
  • In Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the United States Supreme Court determined that a subsequent notice of the time and place of the initial removal hearing could not cure or correct a defective NTA that does not provide the time and place of removal proceedings for the purpose of stopping the 10-year continuous-presence clock set forth in section 240A(d)(1) of the Act (the “stop-time rule”).  Niz-Chavez v. Garland, at 1478, 1482, 1486.
  • In Pierre-Paul v. Barr, 930 F.3d 684, at 689-90 (5th Cir. 2019), noting that the regulations, not section 239(a) of the Act, “govern what a notice to appear must contain to constitute a valid charging document,” the Fifth Circuit Court of Appeal held that a defective NTA constituted a valid charging document even without the time, date, or place of the initial hearing.
  • In Maniar v. Garland (5th Cir. May 20, 2021) No. 18-60667, the Fifth Circuit Court of Appeal reiterated the holding in Pierre-Paul v. Barr that the regulations, not section 239(a) of the Act, govern what an NTA must contain to constitute a valid charging document.
  • In in Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021), the Fifth Circuit Court of Appeal addressed rescission of in absentia orders under section 240(b)(5)(C)(ii) of the Act and determined that only statutes that refer to section 239(a) of the Act implicate the textual analysis undertaken by the Supreme Court in Niz-Chavez v. Garland.  The Fifth Circuit Court of Appeal went on to distinguish Maniar v. Garland.  Specifically, the Fifth Circuit Court of appeal pointed out that the provision at issue in Maniar v. Garland does not reference section 239(a) of the Act notice requirements, which led to its conclusion that a single notice that did not include the date, time, and place of the initial hearing was a valid charging document because it met the regulatory requirements.
  • Ultimately, the above cited case law forecloses the Petitioner’s argument that a defective NTA that does not provide the time and place of removal proceedings, and thus does not comply with the requirements set forth in section 239(a) of the Act, is a valid charging document and does not deprive the immigration court of jurisdiction.

 

Second Motion to Reopen

  • To show changed country conditions, petitioners must draw “a meaningful comparison” between the conditions in their home country at the time of the motion to reopen and those at the time of the removal hearing. Nunez v. Sessions, 882 F.3d 499, at 508 (5th Cir. 2018) (citing Ramos-Lopez v. Lynch, 823 F.3d 1024, at 1026 (5th Cir. 2016)).
  • A petitioner must show more than “the continuation of a trend,” “incremental change” or “individual incidents, without evidence that they are part of a larger material change.” Nunez v. Sessions, at 508-09.
  • Factual findings are reviewed for substantial evidence.  Thus, the BIA’s factual findings will be accepted “unless the evidence is so compelling that no reasonable fact finder could fail to find otherwise.” Lopez-Gomez v. Ashcroft, 263 F.3d 442, at 444 (5th Cir. 2001).  The applicant’s burden is to demonstrate that the evidence compels a contrary conclusion. Zhao v. Gonzales, 404 F.3d 295, at 306 (5th Cir. 2005).
  • The 2018 United States Country Report on Mexico mentions violence targeting LGBT persons in its preamble while the 2007 preamble does not. However, comparison of the preambles of the reports is not a meaningful comparison between the country conditions in 2018 and 2007.
  • The Petitioner did not provide evidence that the country reports themselves show more than the continuation of a trend of discrimination and violence against LGBT individuals in Mexico.
  • The 2018 report does not contain information specific to the treatment of HIV positive individuals.
  • The Petitioner did not show how any of the other submitted documents, alone or taken together, draw a meaningful comparison between the conditions in Mexico for his asserted social groups at the time of his motion to reopen and those at the time of his removal hearing.
  • The Petitioner’s diagnosis of HIV taken alone is a change in personal circumstances, but does not qualify as changed country conditions without also providing sufficient evidence of related changed country conditions. Nunez v. Sessions, 882 F.3d 499, at 509 & n.12 (5th Cir. 2018).

 

Commentary

Generally, "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary."  See section 242(b)(4)(B) of the Act.  Also, the Fifth Circuit Court of Appeal reviews denials of motions to reopen “under a highly deferential abuse-of-discretion standard.”  Fuentes-Pena v. Barr, 917 F.3d 827, at 829 (5th Cir. 2019).   Specifically, a BIA motion to reopen decision will not be disturbed “so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.”  Yu Zhao v. Gonzales, 404 F.3d 295, at 304 (5th Cir. 2005). 

Sometimes the standard for appellate review dominates the process of review and dictates the outcome.

The primary lesson appears obvious and even trite.  It is preferable to win the battle of persuasion in the foot hills of the trial court than to fight the battle of persuasion in the thin mountain air of the appellate court.

 

Jurisdiction

According to the BIA:

Every court of appeal that has considered the question has agreed that a "Notice to Appear" that lacks information required by section 239(a) of the Act is sufficient to vest the Immigration Court with subject matter jurisdiction. Ali v. Barr, 924 F.3d 983, at 986 (8th Cir. 2019); see also Gonçalves Pontes v. Barr, 938 F.3d 1, at 5–7 (1st Cir. 2019); Banegas-Gomez v. Barr, 922 F.3d 101, at 110–12 (2d Cir. 2019); Nkomo v. Att’y Gen. of U.S., 930 F.3d 129, at 133–34 (3d Cir. 2019); United States v. Cortez, 930 F.3d 350, at 358–62 (4th Cir. 2019); Maniar v. Garland, 998 F.3d 235, at 242 (5th Cir. 2021); Santos-Santos v. Barr, 917 F.3d 486, at 489–91 (6th Cir. 2019); Ortiz-Santiago v. Barr, 924 F.3d 956, at 958, 962–64 (7th Cir. 2019); Karingithi, 913 F.3d at 1161–62; Lopez-Munoz v. Barr, 941 F.3d 1013, at 1015–18 (10th Cir. 2019); Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, at 1153–57 (11th Cir. 2019).

See Matter of Arambula-Bravo, 28 I&N Dec. 388, at 391-92 (BIA 2021).

For practical purposes, it is difficult to find much more to say about the chances for terminating removal proceedings based on lack of jurisdiction arising from a defective NTA.

 

Changed Circumstances

Regulations regarding motions to reopen are framed negatively and authorize reopening only when minimum conditions are met.  INS v. Wang, 450 U.S. 139 (1981).  See also INS v. Abudu, 485 U.S. 94 (1988).

One primary exception to time and number bars is a motion to reopen to apply for asylum under section 208 of the Act, withholding of removal under section 241(b)(3) of the Act, or withholding of removal under the Convention Against Torture based on changed circumstances in the country of nationality or the country to which removal has been ordered.  However, the changed circumstances must be material and not available or could not have been discovered or presented at the previous hearing.  See 8 C.F.R. § 1003.23(b)(4). 

Changes in an alien’s personal circumstances (e.g. the birth of children) in the United States will not, without more, justify a motion to reopen to pursue a successive application based on changed circumstances as described in section 208(a)(2)(D) of the Act.  See Wang v. Board of Immigration Appeals, 437 F.3d 270, at 273 (2nd Cir. 2006); Zheng v. Mukasey, 509 F.3d 869 (8th Cir. 2007). 

The Fifth Circuit Court of Appeal, however, might consider a hybrid changed circumstances claim if significant change in personal circumstances can be linked to a change in country conditions:

Because Garcia has not been able to show changed country conditions on appeal, we do not reach the question of whether he would be able to present a “hybrid” changed conditions claim. See, e.g., Rodriguez v. Garland, 990 F.3d 1205, 1209-10 (9th Cir. 2021) (“[W]hile changes in personal circumstances may be relevant to a motion to reopen based on changed country conditions, a petitioner cannot succeed on such a motion that ‘relies solely on a change in personal circumstances,’ without also providing sufficient evidence of related changed country conditions.” (citing Chandra v. Holder, 751 F.3d 1034, 1037 (9th Cir. 2014))).

See Blas Eduardo Garcia v. Garland pp. 8, 9 & note 3 (March 14, 2022) No. 19-60793.

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