BIA tries to restrict Supreme Court holding of Pereira

Last Updated

September 26, 2018

Pereira v. Sessions and Matter of Bermudez-Cota – The Basics

In late August, the Board of Immigration Appeals, or BIA, issued a precedential decision, Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), which interprets the scope of the recent Supreme Court decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Bermudez-Cota limits the application of Pereira’s holding to the stop-time rule in cancellation of removal cases. Bermudez-Cota’s narrow interpretation of Pereira is certain to lead to further federal litigation.

In Pereira, the U.S. Supreme Court addressed the effect of a Notice to Appear, or NTA, that does not state the time or date of the hearing, as required by the Immigration and Nationality Act, or INA, on the respondent’s case for cancellation of removal. Writing for an 8-1 majority, Justice Sotomayor looked to the plain language of the INA and found that “[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under [USC] section 1229(a)’ and therefore does not trigger the stop-time rule.” 138 S. Ct. at 2110. The Supreme Court accordingly found that the initial NTA served on Mr. Pereira did not trigger the “stop-time” rule for cancellation of removal purposes and remanded the case for further proceedings.

Since the Supreme Court’s decision on June 21, 2018, many immigration practitioners have moved to terminate removal proceedings, citing the broad language of Pereira, and arguing that if the putative NTA was defective, the immigration court never acquired jurisdiction over the case. Some immigration judges have granted dismissal in these cases, some have requested written briefing, and others have rejected the argument, finding that Pereira only relates to the stop-time rule. For a more in-depth analysis of the Pereira decision and its possible consequences, see American Immigration Council and CLINIC, Practice Advisory, Strategies and Considerations in the Wake of Pereira v. Sessions, (July 20, 2018).

The Department of Homeland Security, or DHS, has argued that Pereira should only apply to the stop-time rule and that the fact that the Supreme Court remanded the case rather than dismissing it should be seen as proof that the Justices considered the immigration court to have jurisdiction over the case. Of course, the issue presented to the Supreme Court was narrow, and did not include the jurisdictional issue, so the Court’s silence on the issue should not be read as taking a position on it. In a highly unusual step, DHS appealed as a group dozens of cases with different counsel and different facts in which termination had been granted. Mr. Bermudez-Cota’s case was already on appeal before the BIA, and, while it was pending, he moved the BIA for termination.

In Bermudez-Cota, the BIA unsurprisingly sides with DHS, finding that Pereira should be read narrowly and that DHS’s filing of NTAs without the information required in INA § 239(a) does not divest the immigration court of jurisdiction. The BIA relies on 8 CFR § 1003.14(a), which states that jurisdiction vests with the court when a charging document is filed. Since the regulation does not specify that the charging document must contain the time and place of the hearing, the BIA reasons that there is no jurisdictional problem. Of course, this reasoning will likely lead to arguments in federal court that the regulations are ultra vires; the Supreme Court just ruled, albeit in the specific context of the stop-time rule, that the INA requires an NTA to include the place and time of the hearing in order to be a charging document. Since the Supreme Court’s decision relied on the clear and unambiguous language of INA § 239(a), the BIA’s interpretation of a regulation that is ultra vires to the statute should not be entitled to Chevron deference, which favors agency interpretation of ambiguous terms.  

Bermudez-Cota then discusses decisions from the Fifth, Seventh, Eighth, and Ninth Circuits that pre-dated the Supreme Court’s ruling in Pereira, and holds:

Accordingly, a notice to appear that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Act, so long as a notice of hearing specifying this information is later sent to the alien. Bermudez-Cota, 27 I&N Dec. at 447.

Significantly, the BIA finds Pereira to be “distinguishable” from Bermudez-Cota because, unlike Mr. Pereira, Mr. Bermudez-Cota received the subsequent hearing notice and appeared in court. Thus, the BIA reasons, “The respondent in this case clearly was sufficiently informed to attend his hearings.” Id. at 443. DHS has been urging immigration judges to read Bermudez-Cota broadly, even in the context of cancellation of removal cases, to consider an immigration court-issued Notice of Hearing to “complete” the NTA and thereby trigger the stop-time rule, in spite of the broad language in Pereira.

In Bermudez-Cota, the BIA further distinguishes Pereira in that Mr. Pereira was applying for cancellation of removal, and reasons that the question before the Supreme Court regarding the stop-time rule was “narrow.” Id. In what appears to be a caution to zealous immigration practitioners, the BIA notes, “[the Supreme Court] did not indicate that proceedings involving similar notices to appear, including those where cancellation of removal, asylum, or some other form of relief had been granted, should be invalidated or that the proceedings should be terminated.” Id. at 444.

The Bermudez-Cota decision is not well-reasoned as the BIA skirts the statutory interpretation issue addressed in Pereira. There is simply no logic to the BIA’s conclusion that the unambiguous requirements of INA § 239(a) would only apply in the context of the cancellation stop-time rule. If the BIA rushed to issue Bermudez-Cota because of concerns about the practical jurisdictional implications of Pereira, then it should be equally concerned about the practical implications of providing its overburdened immigration judges with two different interpretations of the same statutory language.


Pereira v. Sessions and Matter of Bermudez-Cota  Some Takeaways

Bermudez-Cota will clearly not be the last word on Pereira or the effect of an NTA that does not specify the time and place of the hearing on jurisdictional issues. In fact, because Mr. Bermudez-Cota was granted voluntary departure and was not pursuing other relief in immigration court, he can immediately appeal the decision to the Ninth Circuit rather than having to wait for the case to go through a remand to the immigration judge. It is likely that the jurisdictional issue will have to be settled by the Supreme Court in the future. In the meantime, practitioners should consider the following:

  • Preserve the Termination Argument. Even if individual immigration judges disagree with the holding in Bermudez-Cota, or believe that it contradicts Pereira, they are obligated to follow BIA precedent that is on point. However, practitioners should continue to make motions to terminate before the immigration court to preserve the record for appeal while expecting a denial of the motion.
  • Continue to put Pereira arguments on the record. As discussed above, the jurisdictional issue is far from resolved. In cases where the respondent would benefit from termination,  it is therefore very important for practitioners to preserve the argument that the case should be terminated for potential federal court appeal in the respondent’s case and because the law could change in the future.
  • A defective NTA does not trigger the stop-time rule for cancellation. The BIA and immigration judges are bound by Bermudez-Cota and Pereira v. Sessions. Therefore, an NTA that does not include the place and time of a hearing does not trigger the stop-time rule for cancellation purposes.
  • A Notice of Hearing with the date and time of hearing does not trigger the stop-time rule. The only narrow question before the BIA in Bermudez-Cota is whether the putative NTA in that case vested the court with jurisdiction. The Board held that the NTA, combined with the notice of hearing, did vest the court with jurisdiction. The issue of the effect of the notice of hearing on the stop-time rule is not before the BIA in this case, so practitioners should continue to make broad arguments based on the Pereira holding that only a proper NTA that complies with INA § 239(a) can trigger the stop-time rule. Although several circuits decisions allow the notice of hearing to be combined with the NTA to stop time in cancellation cases, those decisions pre-date Pereira and were contemplated by the Supreme Court.
  • Highlight how the BIA distinguished the facts of Bermudez-Cota from those of Pereira in in Absentia Notice Cases. The Board found it significant that Mr. Bermudez-Cota received the notice of hearing with the date and time for immigration court and appeared and participated in his proceedings. Practitioners should distinguish cases where the respondent did not receive the notice of hearing and argue that the facts are more similar to Pereira than to Bermudez-Cota, and that Bermudez-Cota did not address motions to reopen and therefore does not foreclose reopening based on a defective NTA.
  • Continue to raise Pereira arguments that are not foreclosed by Bermudez-Cota. In addition to the stop-time rule in cancellation, and potential jurisdictional arguments, Pereira raises other issues that practitioners should continue to argue. These arguments include the continuing accrual of time in the United States for purposes of requesting voluntary departure; immigration judges should not issue in absentia orders in cases with defective NTAs; criminal prosecutions for 8 USC § 1326 illegal re-entry may be subject to challenge if the prior removal order was issued after service of a defective NTA; and grounds of inadmissibility based on prior removal orders may be subject to challenge if the prior removal order was issued after service of a defective NTA.
  • For more information on these strategies and others, see American Immigration Council and CLINIC, Practice Advisory, Strategies and Considerations in the Wake of Pereira v. Sessions, (July 20, 2018) and National Immigration Project and Immigrant Defense Project, Practice Advisory, Challenging the Validity of Notices to Appear Lacking Time-and-Place Information (July 16, 2018).