Zimmer's Books

United States Supreme Court Decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018) does not apply to an OSC



On November 17, 2021, the Fifth Circuit Court of Appeal published a decision in which it considered the notice requirements of a charging document issued to initiate deportation proceedings and served before the September 30, 1996 change in law effected by passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) Pub. L. No. 104–208, 110 Stat. 3009 (1996).

The procedural history, facts of record, holding and rationale in Shahid Ashan Maradia, aka Shahid Maredia, aka Saiycdali Momin, (5th Cir. November 17, 2021) No. 20-60714 are as follows:

 

Case History

On August 6, 1996, an Immigration Judge conducted an in absentia hearing upon the Petitioner’s failure to appear for his immigration hearing and issued a deportation order.

In 2011, the Petitioner moved to reopen his immigration proceedings.

The Immigration Judge denied the Petitioner’s motion.

The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s decision, but the Petitioner did not file a petition for review.

In 2019, the Petitioner filed a second motion to reopen his immigration proceedings.

The BIA denied the Petitioner’s second motion to reopen.

The Petitioner timely filed a petition for review of the BIA’s denial of his second motion to reopen.

 

Facts

The Petitioner is a native and citizen of India, who entered the United States without inspection in 1996.

The former Immigration and Naturalization Service (“INS”) personally served the Petitioner with an Order to Show Cause (“OSC”) alleging and charging that he is subject to deportation under section 241(a)(1)(B) of the former Immigration and Nationality Act (i.e. entry without inspection).

The OSC listed the Petitioner’s address as a particular apartment on “Landend Street.”  The OSC did not include the time and date of his initial immigration hearing, but it informed the Petitioner that if he changed his address, he “must report” the change to the immigration court.

The Petitioner did not file a change-of-address notice with the immigration court. Consequently, the court sent a notice with the date, time, and location of his hearing to the “Landend” address.  

The Petitioner did not appear at the hearing.  So on August 6, 1996, the Immigration Judge conducted an in absentia hearing and issued a deportation order to the Petitioner.

In his motion to reopen filed 15 years later in 2011, the Petitioner asserted that he lacked notice of the deportation hearing.  Specifically, the Petitioner argued that he had “moved from the Landend address” a month before the notice was sent.

The Immigration Judge justified the in absentia deportation order, in part, by determining that the Petitioner had received sufficient written notice because the notice of hearing was sent to his “last known address” that the Petitioner had provided to the court and he “did not inform the Court of his change in address.”

Eight years later, in 2019, the Petitioner filed a second motion to reopen, again alleging that he did not receive notice; and, in addition, that the former INS officer had written down the wrong street address, “Landend Street,” and that the correct street address was “Lands End Street.”  

Furthermore, the Petitioner argued that reopening was warranted in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018).

The BIA denied the Petitioner’s second motion to reopen, concluding that the motion was time and number barred under 8 C.F.R. § 1003.2(c)(2) (i.e. only one motion to reopen is allowed and it must be filed within 90 days of the final administrative decision, unless lack of notice can be established in accordance with 8 C.F.R. § 1003.2(c)(3)).

Even if the Petitioner’s motion was not barred, the BIA held that reopening his deportation proceedings is not warranted under Pereira because that case concerned a materially different statute than the one relevant to the Petitioner’s immigration proceedings.

The Petitioner timely petitioned for review the BIA’s denial of his second motion to reopen.

 

Held

Petition for Review DENIED

Rationale

The Petitioner provided two reasons for alleging abuse of discretion by the BIA in denying his motion to reopen:

  1. That the number and time bars to his motion to reopen did not apply because he did not receive notice of his immigration hearing under 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2).  See section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, as amended (“the Act”).
  2. That failure to include the date and time of his deportation hearing in his OSC constituted a lack of notice, according to Pereira v. Sessions, 138 S. Ct. 2105 (2018).

The Fifth Circuit Court of Appeal addressed the Petitioner’s two challenges as follows:

  1. Exception to number and time bars based on lack of notice -
  • The BIA had concluded, under 8 C.F.R. §§ 1003.2(c)(2) and 1003.23(b)(4)(iii)(A)(2) (the former regulation providing for time and number bars to motions to reopen and the latter regulation providing for an exception to time and number bars based on lack of notice), that the Petitioner’s second motion was time and number barred because the Immigration Judge had denied his initial motion to reopen for lack of notice and the BIA had dismissed his subsequent appeal of that denial.
  • The Petitioner did not contest the Immigration Judge’s legal determination or factual findings that it was his burden to inform the immigration court of the correct address and he failed to do so.  Furthermore, he cannot do so in his current petition for review, because he did not file a petition for review of the denial of his first motion to reopen alleging lack of notice within thirty days. See section 242(b)(1) of the Act (imposing a thirty-day deadline to petition for review a BIA order).
  • Finally, the Petitioner continuously stated that the address he had stayed at was the “Landend address,” not the “Lands End” address that he asserted in his petition for review.  Therefore, the factual record does not compel an opposite conclusion.  See section 242(b)(4)(B) of the Act (agency’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”).

See Shahid Ashan Maradia, aka Shahid Maredia, aka Saiycdali Momin, at pp. 4, 5, and n.5 (5th Cir. November 17, 2021) No. 20-60714.

  1. Applicability of Pereira v. Sessions, 138 S. Ct. 2105 (2018) –
  • In Pereira, the Supreme Court addressed the requirement for a notice to appear (“NTA”) in removal proceedings under section 239 of the Act and held that section 239 of the Act requires the time and place of the proceedings be included in the NTA. Pereira, 138 S. Ct. at 2109–10.
  • Pereira, however, is inapplicable because it deals with a different statute. The relevant statute is the now-repealed section 242B of the former 1952 Immigration and Nationality Act, as amended. 
  • The Petitioner’s deportation proceedings began and ended before September 30, 1996, when Congress passed IIRIRA and repealed former section 242B of the Act.
  • Section 242B of the former Act provided that in deportation proceedings “written notice shall be given in person to the alien . . . in the order to show cause or otherwise, of . . . the time and place at which the proceedings will be held.”  [emphasis added]  See section 242B(a)(2)(A)(i) of the former Act.
  • Furthermore, the United States Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) makes clear that section 242B of the Former Act did not require the time and place of a deportation hearing to be in an OSC.
  • All other circuits that have addressed this issue have held that the Pereira notice requirement does not apply to an OSC issued in accordance with section 242B of the former Act.

See Shahid Ashan Maradia, aka Shahid Maredia, aka Saiycdali Momin, at pp. 6, 7.

 

Commentary

Obviously, the primary principle to carry away from Shahid Ashan Maradia, aka Shahid Maredia, aka Saiycdali Momin, (5th Cir. November 17, 2021) No. 20-60714 is that an OSC does not need to contain the time and place of the initial hearing to serve as proper notice that will support an in absentia deportation order.

Believe it or not, some deportation proceedings initiated prior to September 30, 1996, when Congress passed the IIRIRA, are still pending.  The central issue involving an OSC used to initiate deportation proceedings before September 30, 1996 in Shahid Ashan Maradia, aka Shahid Maredia, aka Saiycdali Momin, (5th Cir. November 17, 2021) No. 20-60714 is proof that such proceedings still exist.  

Eventually, like everything else in the material world, these deportation proceedings will fall away like autumn leaves as the seasons turn.

Those who are interested in law relating to reasonable hearing notice in the context of in absentia proceedings that existed before the September 30, 1996 might want to read Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993).

Former section 242B(a)(1) of the Act provided that written notice to appear may be mailed "to the alien or to the alien's counsel of record."   Notice of a change in time or place of deportation proceedings could also be mailed "to the alien or to the alien's counsel of record."   See former section 242B(a)(2) of the Act.   See also sections 545(a) and 545(g) of the Immigration Act of 1990.  Interim regulations implementing these provisions became effective on June 13, 1992.  See 57 Fed. Reg. 11568 (1992).  The final rules were published January 13, 1994.  See 59 Fed. Reg. 1896 (1994).   

Under former section 242B(c)(1) of the Act, an alien who does not appear at his or her hearing, after written notice of the time and place of the removal  hearing has been provided according to former section 242B(a)(2) of the Act "to the alien or the alien's counsel of record," "shall be ordered deported" in absentia if the Government establishes the alien is subject to deportation.

Rescission of an in absentia removal order could only be achieved by establishing exceptional circumstances, inadequate notice, or that the alien was in Federal or State custody.  See former section 242B(b)(3)(B) of the Act.  As noted in Shahid Ashan Maradia, aka Shahid Maredia, aka Saiycdali Momin, however, “written notice shall be given in person to the alien . . . in the order to show cause or otherwise, of . . . the time and place at which the proceedings will be held.”  [emphasis added]  See former section 242B(a)(2)(A)(i) of the Act.

Notice by the Government and Immigration Court was deemed sufficient if sent to the most recent address provided by the respondent.  See former section 242B(c)(1) of the Act;  Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995).

Immigration practitioners should never forget, however, that motions to reopen have the dubious honor of being described as “disfavored.”  Fredy Omar Gonzalez Hernandez, aka Fredy Omar Gonzalez v. Garland, at 8 (5th Cir. August 13, 2021) No. 19-60274.

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).

Some things never seem to change.

Copyright © Zimmer's Books.

Created with Pub Site