Zimmer's Books

by William K. Zimmer, in Immigration Matters

The procedural history, facts of record, holding and rationale in Jesus Humberto Castillo-Gutierrez v. Garland (August 5, 2022) No. 20-60492 are as follows:

 

Case History

The Petitioner appeared in immigration court and conceded that he was subject to removal as charged.

 

An Immigration Judge denied the Petitioner’s application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, as amended (“the Act”).

 

The Petitioner appealed the Immigration Judge’s decision to the Board of Immigration Appeals (“BIA”).

 

The BIA affirmed the decision of the Immigration Judge.

 

The Petitioner filed a petition for review of the BIA’s decision.

 

Facts

• The Petitioner is a citizen of Mexico, who entered the United States in 1990 with a border-crossing card.  Except for one subsequent visit to Mexico, the Petitioner continued to live in the United States.
• On August 21, 2014, the Department of Homeland Security (“DHS”) served a defective notice to appear (“NTA”) that did not contain the time and place of the initial removal hearing to the Petitioner.
• On September 2, 2014, the Petitioner appeared at his removal hearing and conceded that he was subject to removal as charged.
• The Petitioner then filed an application for cancellation of removal based on exceptional and extremely unusual hardship to his children if the government removed him from the United States.
• After a hearing on the merits of the Petitioner’s cancellation of removal application, an Immigration Judge determined that the Petitioner did not qualify for cancellation of removal.
• In particular, the Immigration Judge determined that the Petitioner had not proven by a preponderance of the evidence that he had been a person of good moral character for the previous ten years and because he had not proven that his children would suffer exceptional and extremely unusual hardship if he were removed to Mexico.
• The Petitioner appealed to the BIA contending that the NTA was defective under recent United States Supreme Court precedent and that the Immigration Judge had erred by determining that he had failed to establish good moral character and exceptional and extremely unusual hardship to his children in the event of his removal from the United States.
• The Petitioner, however, did not argue in his brief to the BIA that his NTA was defective.
• The BIA agreed with the Immigration Judge that the Petitioner had not met his burden of proving that his children would suffer exceptional and extremely unusual hardship as the result of his removal, but did not reach the issue of good moral character.
• In spite of the Petitioner’s failure to brief his position relating to his defective NTA, the BIA still reached the merits of the Petitioner’s argument, characterizing it as a contention that “the Immigration Judge did not acquire jurisdiction over these proceedings because [Castillo-Gutierrez’s] Notice to Appear (NTA) was defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018).”
• Ultimately, the BIA rejected the Petitioner’s argument that a defective NTA that does not contain the time and place of the initial removal hearing deprives the Immigration Judge of jurisdiction.

 

Held

DISMISSED in part (regarding the challenge to the hardship determination)

DENIED in part (regarding the challenge to the Immigration Judge's jurisdiction)

 

Rationale

The Petitioner raised the following arguments in his petition for review:

1. The NTA is invalid because it contained a “material misrepresentation.”
2. The Immigration Judge did not acquire jurisdiction over his removal proceedings because his NTA was defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018) for failing to contain the time and place of his initial removal hearing.
3. The BIA erred in determining that he had not met his burden to show that his removal would cause exceptional and extremely unusual hardship for his children.

The Fifth Circuit Court of Appeal reasoned as follows:

 

Material Misrepresentation

• The Petitioner’s contention that the NTA was invalid because it contained a “material misrepresentation,” was never considered by the BIA and was not “fairly present[ed] to the BIA.” Omari v. Holder, 562 F.3d 314, at 321 (5^th Cir. 2009).
• Therefore, this argument remains unexhausted, which deprives an appellate court of jurisdiction to consider it.  See section 242(d)(1) of the Act.

 

Immigration Judge’s Jurisdiction

• Although the Petitioner failed to properly perfect his jurisdictional argument based on a defective NTA to the BIA by failing to brief it, “if the BIA considers the merits of an issue that is not explicitly raised by the petitioner, that issue is exhausted.” Dominguez v. Sessions, 708 F. App’x 808, at 811 (5th Cir. 2017) (citing Lopez-Dubon v. Holder, 609 F.3d 642, at 644 (5th Cir. 2010))
• Therefore, the Fifth Circuit Court of Appeal has jurisdiction to review the Petitioner’s argument that the Immigration Judge did not acquire jurisdiction.
• The regulations, not section 239(a)(1), govern what a notice to appear must contain to constitute a valid charging document.  Pierre-Paul v. Barr, 930 F.3d 684, at 693 (5th Cir. 2019). 
• The United States Supreme Court holdings in Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) are not inconsistent with the jurisdictional holding in Pierre-Paul v. Barr because neither case addressed jurisdiction. 
• In particular, Pereira v. Sessions addressed effect of a defective NTA on the stop time rule for the calculation of physical presence in the context of cancellation of removal and Niz-Chavez v. Garland established the principle that a defective NTA which did not contain the time and place of the initial removal hearing could not be subsequently cured or perfected by a hearing notice that supplied the missing information.
• In short, the Petitioner’s argument that the Immigration Judge did not acquire jurisdiction based on a defective NTA that did not contain the time and place of the initial removal hearing is foreclosed by Pierre-Paul v. Barr.  See also Maniar v. Garland, 998 F.3d 235, at 242 n.2 (5th Cir. 2021); Garcia v. Garland, 28 F.4th 644, at 647 (5th Cir. 2022).

 

Hardship Review

• As a matter of law, “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 240A.”  See section 242(a)(2)(B)(i) of the Act.
• This jurisdictional bar is subject to an exception which provides that nothing in the Act “shall be construed as precluding review of constitutional claims or questions of law.” See section 242(a)(2)(D).
• The Fifth Circuit Court of Appeal had previously held that the BIA’s hardship determination is not subject to the jurisdictional bar in section 242(a)(2)(B)(i) of the Act (both because it falls within the statute’s exception for “questions of law” and because the jurisdictional bar applies only to “the adjudicator’s ‘discretionary authority.’”  See Trejo v. Garland, 3 F.4th 760, at 766–77 (5th Cir. 2021) (quoting Montero-Martinez v. Ashcroft, 277 F.3d 1137, at 1142 (9th Cir. 2002)).
• However, the United States Supreme Court determined that “judgment” in section 242(a)(2)(B)(i) of the Act means any authoritative decision, and that the 242(a)(2)(B)(i) prohibition of appellate review encompasses any and all decisions relating to the granting or denying of discretionary relief.  Patel v. Garland, 142 S. Ct. 1614, at 1622 (2022).
• Since a hardship determination relating to a cancellation of removal application is an authoritative decision, Patel v. Garland makes clear that the BIA’s determination relating to the Petitioner’s children falls within the scope of section 242(a)(2)(B)(i) of the Act and is beyond appellate review and subject to dismissal.

 

Commentary

The Fifth Circuit Court of Appeal, in Jesus Humberto Castillo-Gutierrez v. Garland (August 5, 2022) No. 20-60492, provides a review of its recent case law that applies and assimilates the United States Supreme Court Decisions in Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).

Perhaps, a summary of relevant rulings and other relevant immigration law information will provide clarity.

 

Pereira v. Sessions, 138 S. Ct. 2105 (2018)

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 cancellation of removal under section 240A(d)(1) of the Act.

 

Cancellation of Removal

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 the 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.

Since cancellation of removal is a discretionary form of relief, statutory eligibility to apply for cancellation of removal did not and does not guarantee an applicant’s success.

 

Immediate Repercussion of Pereira v. Sessions

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.

At least two other circuit court of appeals, however, 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.

Based on Niz-Chavez v. Garland, the Fifth Circuit Court of Appeal determined that, under section 240(b)(5)(C)(ii) of the the Act, an in absentia removal order may be rescinded upon a motion to reopen filed at any time if the subject of such order demonstrates receipt of a defective NTA that does not contain the time and place of the initial hearing in accordance with section 239(a)(1)(G)(i) of the Act.  Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021).

In short, the Fifth Circuit Court of Appeal reasoned in Rodriguez v. Garland that: 

1. Both the rescission of an in absentia order provision and the stop-time rule provision specifically reference the notice requirements of section 239(a) of the Act.  See sections 240(b)(5)(C)(ii) and 240A(d)(1) of the Act.
2. Therefore, the Niz-Chavez v. Garland separate interpretation of the notice requirements of section 239(a) of the Act applies in the in absentia context.

At this point the reader might be wondering what any of these cases have to do with Immigration Judge jurisdiction.  Please continue reading.

 

Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019)

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 Pierre-Paul v. Barr, the Fifth Circuit Court of Appeal specifically noted that: 

1. Jurisdiction vests and proceedings before an Immigration Judge commence when a "charging document" is filed with the immigration court.  See 8 C.F.R. § 1003.14(a).
2. The regulations define "charging document" as "the written instrument which initiates a proceeding before an Immigration Judge" and includes NTAs along with other types of charging documents.  See 8 C.F.R. § 1003.13.
3. The regulations provide that the government "shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable."  See 8 C.F.R. § 1003.18(b).

Maniar v. Garland, 998 F.3d 235 (5th Cir. 2021)

In Maniar v. Garland, 998 F.3d 235, at 242 n.2 (5th Cir. 2021), 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 Maniar v. Garland, 998 F.3d 235, 242 n.2 (5th Cir. 2021), 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.

The Fifth Circuit Court of Appeal explained in Maniar v. Garland and in Jesus Humberto Castillo-Gutierrez v. Garland, at p.5-6, that Niz-Chavez v. Garland did not undermine Pierre-Paul v. Barr’s holding that the regulations, rather than the statute, govern what a notice to appear must contain. 

Therefore, the Fifth Circuit Court of Appeal adheres to its original ruling in Pierre-Paul v. Barr that NTAs lacking the time and place of the initial removal hearing are not defective for the purpose of establishing jurisdiction of Immigration Judges to conduct removal proceedings.

 

Immigration Judge Jurisdiction According to the BIA

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).

Thus, a properly filed defective NTA vests the Immigration Judge with jurisdiction to hold removal proceedings.

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.

 

Appellate Court Jurisdiction

In Jesus Humberto Castillo-Gutierrez v. Garland (August 5, 2022) No. 20-60492, the Fifth Circuit Court of Appeal for the first time in a precedent decision applies the holding of the United States Supreme Court in Patel v. Garland, 142 S. Ct. 1614 (2022).

The Fifth Circuit of Appeal declared in Castillo-Gutierrez v. Garland that:

the BIA’s determination that a citizen would face exceptional and extremely unusual hardship is an authoritative decision which falls within the scope of § 1252(a)(2)(B)(i) and is beyond our review.”

So what does “authoritative decision” mean?

 

Patel v. Garland, 142 S. Ct. 1614 (2022)

On May 16, 2022, the United States Supreme Court concluded that in matters relating to immigration law, section 242(a)(2)(B) of the Act, as modified by section 242(a)(2)(D) of the Act, deprives appellate courts of jurisdiction to review findings of fact by administrative decision makers in the adjudication of relief applications pursuant to sections 212(h) (waiver of inadmissibility arising from criminal behavior or convictions), 212(i) (waiver of inadmissibility based on fraud), 240A (cancellation of removal), 240B (voluntary departure), and 245 of the Act (adjustment of status), as well as any other discretionary decision or action by the United States Attorney General or DHS that is not a ground for a constitutional claim or a question of law raised in a petition for review.

Obviously, cancellation of removal under section 240A is on the list of relief applications for which Congress eliminated appellate review, except for constitutional claims or questions of law.  See sections 242(a)(2)(B)(i) and 242(a)(2)(D) of the Act, respectively.

The United States Supreme Court made reference to Webster’s Third New International Dictionary 1223 (1993) (“a formal utterance or pronouncing of an authoritative opinion after judging,” or “an opinion so pronounced”) as part of its rationale, counter to the government’s argument that appellate review was limited to only discretionary decisions, that “judgement” as used in the text of section 242(a)(2)(B) of the Act broadly included any determination relating to the granting of relief under the enumerated statutes.  Patel v. Garland, at 1622.

 

Jesus Humberto Castillo-Gutierrez v. Garland (August 5, 2022) No. 20-60492

Therefore, the Fifth Circuit Court of Appeal concluded that Patel v. Garland abrogated its previous holding in Trejo v. Garland, 3 F.4th 760, at 766–77 (5th Cir. 2021) that the BIA’s hardship determination is not subject to the jurisdictional bar in section 242(a)(2)(B) of the Act.  Castillo-Gutierrez v. Garland, at p.7.

In other words, the assumption of jurisdiction in Trejo v. Garland because the hardship determination falls within the statute’s exception under section 242(a)(2)(D) of the Act for “questions of law” and because the jurisdictional bar applies only to “the adjudicator’s ‘discretionary authority to determine who among the eligible persons should be granted discretionary relief’” will no longer be implemented.    

In a nutshell, any final administrative decision relating to sections 212(h) (waiver of inadmissibility arising from criminal behavior or convictions), 212(i) (waiver of inadmissibility based on fraud), 240A (cancellation of removal), 240B (voluntary departure), and 245 of the Act (adjustment of status), as well as any other decision or action by the United States Attorney General or the DHS that is authorized under the Act (i.e. an “authoritative decision”) will be insulated from appellate review, unless the aggrieved party can frame an appellate claim based on the United States Constitution or a question of law.

 

Appellate Jurisdiction in The Presence of Unilateral Agency Limitations 

Aside from asserting that an administrative decision maker used the wrong legal standard (which might require a motion to reconsider to exhaust the claim in accordance with section 242(d)(1) of the Act), a legal position in favor of jurisdiction for appellate review might be made in a circumstance where the administrative decision comes within the scope of Kucana v. Holder, 558 U.S. 233 (2010).  See Omari v. Holder, 562 F.3d 314, at 320-21 (5th Cir. 2009) (motion to reconsider necessary for jurisdiction only when the BIA’s decision “itself results in a new issue and the [Board] has an available and adequate means for addressing” it).

The United States Supreme Court explained in Patel v. Garland, “that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute.”  Kukana v. Holder, at 247.  In particular, the United States Supreme Court observed that Kukana v. Holder addressed whether the Attorney General could unilaterally proscribe review of decisions “declared discretionary by the Attorney General himself through regulation.” Kukana v. Holder, at 237.  See Patel v. Garland, at 1624-25. 

It seems, therefore, that in the absence of statutory authority that entrusts the grant or denial of relief in immigration proceedings to the discretion of the Attorney General, appellate review is available and is not proscribed.

 

Substantial Evidence Standard

Appellate review of fact finding, however, will be based on the substantial evidence standard. 

The substantial evidence standard based on section 242(b)(4)(B) of the Act is articulated in Revencu v. Sessions, 895 F.3d 396, at 401 (5th Cir. 2018) (reversal of BIA factual findings is only appropriate if the evidence compels a contrary conclusion).  See also Morales v. Sessions, 860 F.3d 812, at 817 (5th Cir. 2017) (An appellate court will uphold an adverse credibility finding “unless it is clear[] from the totality of the circumstances” that a “reasonable adjudicator would be compelled to conclude to the contrary.”). 

Obviously, the substantial evidence standard creates a heavy burden which seemingly must be carried up-hill from the perspective of any petitioner.

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