Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Parada v. Garland (September 1, 2022) No. 19-60425 are as follows:

 

Case History

The Petitioners appeared in immigration court and conceded that they were subject to removal as charged.

 

The Petitioners applied for relief from removal before an Immigration Judge.

 

The Immigration Judge denied the Petitioners’ applications for relief and ordered the Petitioners removed from the United States.

 

The Petitioners appealed their removal orders to the Board of Immigration Appeals (“BIA”).

 

The BIA dismissed the Petitioners’ appeal and affirmed the decision of the Immigration Judge.

 

The Petitioners filed a motion to reopen.

 

The BIA denied the Petitioners’ motion to reopen.

 

The Petitioners filed a petition for review of the BIA’s decision denying the motion to reopen.

 

 

Facts

• The lead Petitioner (“the Petitioner”) and her minor daughter are natives and citizens of El Salvador who entered the United States on September 6, 2006, without being admitted or paroled.
• The Department of Homeland Security served the Petitioner with defective notices to appear (“NTA”) that did not specify the time and place of their initial removal hearing.
• Instead, they were later sent multiple Notices of Hearing (“NOH”) which ultimately led to a final hearing on the merits of the Petitioner’s application for asylum and other relief from removal on October 31, 2008.
• On October 31, 2008, the Immigration Judge issued a decision denying the Petitioner’s relief applications and ordered both Petitioners removed from the United States.
• The BIA affirmed the Immigration Judge’s decision and dismissed the Petitioner’s appeal.
• On September 18, 2018, the Petitioner filed a motion to reopen her removal proceedings based on Pereira v. Sessions, 138 S. Ct. 2105, at 2110 (2018) (holding that a defective NTA that does not contain the time and place of the initial removal hearing does not trigger the stop time rule relating to the accrual of 10 years of physical presence necessary to qualify for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, as amended (“the Act”)) to allow the Petitioners to apply for cancellation of removal.
• The BIA denied the motion to reopen, relying in part on Matter of Mendoza-Hernandez and Capula-Cortez, 27 I. & N. Dec. 520 (BIA 2019), in which it had ruled that subsequent service of an NOH with the time and place of removal proceedings cured the deficiencies in the NTA.

 

Held

Petition for review GRANTED

Case is REMANDED to the BIA

 

Rationale

 

The Petitioner

The Petitioner asserted that the NTAs, which lacked the time and date of the initial removal hearing, did not activate the stop time rule relating to the accrual of continuous physical presence.

Therefore, according to the Petitioner, the Petitioner and her daughter had accrued the necessary 10 years of physical presence since the time of their September 6, 2006 arrival in the United States, and removal proceedings should be reopened for the purpose of applying for cancellation of removal under section 240A(b) of the Act.

 

The Government

The government argued, however, that even if the Petitioner is correct about the failure of a defective NTA to activate the stop time rule, the removal order relating to the Petitioners became final in 2008 which cut off the physical presence of the Petitioners well short of 10 years.

 

Appellate Court Rationale

The Fifth Circuit Court of Appeal reasoned as follows:

• Denials of motions to reopen are reviewed “under a highly deferential abuse-of-discretion standard.” Barrios-Cantarero v. Holder, 772 F.3d 1019, at 1021 (5th Cir. 2014) (quoting Zhao v. Gonzales, 404 F.3d 295, at 303 (5th Cir. 2005)).
• Abuse of discretion occurs if the BIA’s decision “is capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies.”  Barrios-Cantarero v. Holder, at 1021.
• The United States Supreme Court held that a defective NTA lacking the time or place of removal proceedings does not trigger the so-called “stop-time rule” relating to the accrual of 10 years of physical presence necessary to qualify for cancellation of removal pursuant to section 240A(d)(1)(A) of the Act.  Pereira v. Sessions, 138 S. Ct. 2105, at 2110 (2018).
• The NTA must be served in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, at 1478, 1486 (2021).
• Therefore, the subsequent service multiple NOHs containing the time, place and date of the Petitioners removal hearings did not perfect or cure the previously served defective NTA.  Niz-Chavez v. Garland.
• With regard to the government’s argument that the 2008 final removal order cut off the Petitioners’ physical presence, the “[t]ext is the alpha and the omega of the interpretive process.”  United States v. Maturino, 887 F.3d 716, at 723 (5th Cir. 2018).
• The text of section 240A(d)(1) of the Act does not mention a final removal order as an event that triggers the stop time rule regarding the accrual of physical presence.  See Quebrado Cantor v. Garland, 17 F.4th 869, at 873 (9th Cir. 2021).
• In summary, one of two keys must fit before the stop-time rule can be unlocked: service of a valid NTA or commission of an enumerated offense.
• Neither of these events has occurred.
• Thus, the Petitioners’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical presence requirement for cancellation of removal.

 

Commentary

As noted by the Fifth Circuit Court of Appeal, in Parada v. Garland (September 1, 2022) No. 19-60425, the United States Supreme Court held that service of a defective NTA which does not contain the time and place of initial hearing does not trigger the stop time rule relating to accrual of physical presence necessary to qualify for cancellation of removal under section 240A(d)(1) of the Act.  Pereira v. Sessions, at 2110.

 

Cancellation of Removal

It might be useful to briefly describe the cancellation of removal physical presence requirement for readers who are unfamiliar with cancellation of removal in immigration proceedings.

Section 240A(d)(1) of the Act describes the criteria for cancellation of removal.

Specifically, to qualify for cancellation of removal, the applicant must prove (in addition to other criteria) that the applicant has been continuously physically present in the United States for at least 10 years immediately preceding the application date.

Since the date of service of a valid NTA cuts off accrual of physical presence, the easiest way to calculate whether an applicant for cancellation of removal can establish the required 10 years of continuous physical presence is to subtract the date of arrival from the date of service of the NTA.  If the difference is less than 10 years the cancellation of removal application must be denied as a matter of law.

Pereira v. Sessions impacted immigration law practice by disallowing the cut off of physical presence accrual in the United States if the NTA did not contain the time and place of the initial removal hearing.

Consequently, physical presence continues to accrue subsequent to the service of a defective NTA which allows applicants who would otherwise be disqualified by the cut off of physical presence accrual to qualify as a matter of law for cancellation of removal.

 

The BIA

In the aftermath of Pereira v. Sessions, the BIA determined that a deficient NTA that does not include the time and place of an alien's initial removal hearing is perfected on the date of subsequent proper service by the immigration court of a Notice of Hearing (“NOH”) that supplies the missing information.  Thus, a subsequent properly served NOH containing the time and place of hearing triggers the “stop-time” rule of section 240A(d)(1)(A) of the Act to cut off accrual of physical presence.  Matter of Silvestre Mendoza-Hernandez and Rufina Capula-Cortes, 27 I&N Dec. 520 (BIA 2019).  See also Erika Jisela Yanez-Pena v. William P. Barr, (5th Cir. February 28, 2020) Case No. 19-60464; Gilberto Garcia-Romo v. William P. Barr (6th Cir. 2019) Case No. 18-3857.

 

Circuit Court Split

At least two other circuit court of appeals did not endorse the dual document trigger of the physical presence cut off.  See Banuelos v. Barr, 953 F.3d 1176, at 1178–79 (10th Cir. 2020); Guadalupe v. Att’y Gen. U.S., 951 F.3d 161, at 165 (3d Cir. 2020).  More precisely, in cases adjudicated within the jurisdictions of the 10th and 3rd Circuit Court of Appeals a properly served NOH containing the time and place of hearing could not cure a deficient NTA that does not include the time and place of an alien’s initial hearing.  Consequently, no cut off of physical presence based on service of an NTA could occur once the DHS served a deficient NTA in the 10th and 3rd Circuit Court of Appeals.  The deficient NTA could not be cured.

 

Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021)

To resolve the split interpretation of law among the circuit courts, the United States Supreme Court held, not only that a defective NTA which does not contain the time and place of initial hearing does not trigger the stop time rule under section 240A(d)(1) of the Act, but the defective NTA cannot be perfected or cured by subsequent service of a proper NOH containing the missing time and place of the initial hearing.

 

The Previous Stop Time Rule

Before Parada v. Garland, the BIA had determined that the specific list of circumstances that cut off physical presence in section 240A(d) of the Act is not exclusive.  Matter of Romalez, 23 I&N Dec. 423, at 429 (BIA 2002).

For example, when an alien is given a voluntary return pursuant to 240B(b)(1) of the Act or is refused admission after being afforded a formal documented procedure under threat of being placed in immigration court proceedings, the alien’s return to a country outside the United States is deemed to cut off continuous physical presence, even though this circumstance is not listed under section 240A(d) of the Act.  Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).  See also McClovin v. INS, 648 F.2d 935 (4^th Cir. 1981).

Other activities connected with departure that have resulted in the cut-off of continuous physical presence are alien smuggling and sham marriage.  See Matter of Contreras, 18 I&N Dec. 30 (BIA 1981) and Matter of Herrera, 18 I&N Dec. 4 (BIA 1981), respectively.

 

Challenge to Existing Precedent

Based on the rationale of the Fifth Circuit Court of Appeal in Parada v. Garland, this precedent appellate decision might serve as a means to challenge the validity of existing BIA precedential decisions that reach outside of the text of section 240A(d) of the Act to identify a trigger for the cut off of physical presence.

For example, section 240A(d)(2) of the Act provides that:

An alien shall be considered to have failed to maintain continuous physical presence in the United States . . . if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. 

Since departure under the threat of deportation, voluntary return, refusal of admission, alien smuggling and sham marriages are not mentioned as events that activate the stop time rule relating to the accrual of physical presence in the text of section 240A(d) of the Act, litigants in immigration court proceedings might succussfully frame an argument that Matter of Romalez, Matter of Avilez-Nava, Matter of Contreras and Matter of Herrera should be overruled.

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