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No.
IN THE
Ouprente Court of the ?Unita( Statefi
ERICK ADRIAN ROMAN-VEGA,
Petitioner,
vs.
MERRICK GARLAND, ATTORNEY GENERAL
Respondent.
On Petition for a Writ of Certiorarito the United States Court of Appeals
for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
Monica Eav GlickenFraser Donald MuirPUBLIC LAW CENTER601 Civic Center Drive WestSanta Ana, CA [email protected]@publiclawcenter.orgTelephone: (714) 541-1010
Jason Moberly CarusoCounsel of Record
Shaia AraghiNEWMEYER & DILLON LLP895 Dove Street, Fifth FloorNewport Beach, CA 92660jason.caruso@ndllcomTelephone: (949) 854-7000
Counsel for Petitioner
August 27, 2021
QUESTIONS PRESENTED
8 U.S.C. § 1229(a)(1) provides that in removal proceedings pursuant to 8 U.S.C.
§ 1229a, "written notice (in this section referred to as a 'notice to appear') shall be
given in person to the" non-citizen, "specifying the following: . . . (G)(i) The time and
place at which the proceedings will be held."
In Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018), this Court held that a
‘`putative notice to appear that fails to designate the specific time or place of the non-
citizen's removal proceedings is not a 'notice to appear under 8 U.S.C.A. § 1229(a) . .
"' In Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021), this Court went further,
holding that the government cannot satisfy section 1229(a)'s requirements via
successive documents providing the requisite information in a piecemeal fashion;
rather, the term "a notice to appear" as used in section 1229(a) requires a single
initiating document.
Despite the clear directives of section 1229(a), Pereira, and Niz-Chavez, the
government continues to maintain that it can properly initiate and vest jurisdiction
in immigration court removal proceedings, based on notices to appear that that do
not comply with section 1229(a). The government has done so in reliance on 8 C.F.R.
§§ 1003.14 and 1003.15(b); it asserts that these regulations, not the statute, dictate
the exercise of its jurisdiction and content requirements for the initiation of removal
proceedings. See Matter of Bermudez-Coca, 27 I. & N. Dec. 441, 444-45 (BIA 2018).
The government has also asserted that defects in notices to appear are mere
procedural, "claim-processing" issues that do not affect immigration court
jurisdiction. See Matter of Rosales Vargas & Rosales Rosales, 27 I. & N. Dec. 745,
751-52 (BIA 2020).
The questions presented in this case are:
Whether the government can properly initiate and vest jurisdiction in
immigration court removal proceedings if it failed to commence proceedings with a
self-contained notice to appear containing all elements required by section 1229(a);
and
Whether the government can properly rely on 8 C.F.R. §§ 1003.14 and
1003.15(b)'s lack of "time and place" notice requirements to initiate and vest
jurisdiction in immigration court removal proceedings where it failed to first serve a
single, self-contained notice to appear that complies with section 1229(a)'s content
requirements; and
What the remedy should be for non-citizens whose removal proceedings were
not initiated via a self-contained notice to appear complying with section 1229(a).
ii
PARTIES TO THE PROCEEDING
All parties appear in the caption of this case on the cover page.
RELATED PROCEEDINGS
United States Court of Appeals for the Ninth Circuit: Roman-Vega v. Garland,
No. 19-71743 (Apr. 1, 2021). On May 21, 2021, Petitioner filed in the Ninth Circuit
proceeding 1) a Petition for Panel / En Banc Rehearing, 2) a Motion to Accept Late-
Filed Petition for Panel / En Banc Rehearing, and 3) a Motion to Stay Mandate
Pending Adjudication of Petition for Panel / En Banc Rehearing and Submission of
Petition for Writ of Certiorari. As of this petition's filing, the Ninth Circuit has not
issued its mandate, but also has not issued a ruling on these submissions.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED
OPINIONS BELOW 1
JURISDICTION 1
STATUTORY AND REGULATORY PROVISIONS INVOLVED 1
INTRODUCTION 4
STATEMENT 5
A. The government may only initiate section 1229a removalproceedings based on a self-contained notice to appearcontaining all elements required by section 1229(a); otherwise,jurisdiction never vests 5
B. The government cannot properly rely on its regulations' lack ofmandatory "time and place" notice requirements in derogation ofsection 1229(a) 19
C. The Courts of Appeals and the BIA are divided regarding theanalysis and ramifications of the government's use of notices toappear lacking time or place information. 24
D. Mr. Roman-Vega's removal proceedings should have beenterminated due to the defects in his initiating notice to appear 29
REASONS FOR GRANTING THE WRIT 31
I. The Court should grant certiorari to resolve important questionsregarding defects in the initiation of removal proceedings,and under what analysis objections to the same shouldbe analyzed 31
Resolution of this issue is particularly important because theBIA and the Courts of Appeals' approaches to this issue arebased upon a misconception regarding the jurisdictional impactof defective notices to appear 36
This case is a clean vehicle to resolve the foregoing circuit conflictand clarify the proper analysis of defective notices to appear 40
CONCLUSION 43
APPENDIX A: Court of Appeals Decision la
- iv -
TABLE OF CONTENTS(continued)
Page
APPENDIX B: (Board of Immigration Appeals Decision) 3a
APPENDIX C: (Immigration Judge Decision) 6a
APPENDIX D: (Immigration Judge Ruling re Motion to Terminate) 29a
APPENDIX E: (Relevant Statutes and Regulations) 31a
TABLE OF AUTHORITIES
Federal Cases
Page(s)
Aguilar Fermin v. Barr,958 F.3d 887 (9th Cir. 2020) 25,31,34
Aid Assn for Lutherans v. U.S. Postal Serv.,321 F.3d 1166 (D.C. Cir. 2003) 24
Ali v. Barr,924 F.3d 983 (8th Cir. 2019) 25
Arbaugh v. Y & H. Corp.,546 U.S. 500 (2006) 13, 14,31
Banegas Gomez v. Barr,922 F.3d 101 (2d Cir. 2019) 26,32
Bowles v. Russell,551 U.S. 205 (2007) 11
Cebollero-Bertran v. Puerto Rico Aqueduct and Sewer Auth.,4 F.4th 63 (1st Cir. 2021) 12
Christensen v. Harris Cty.,529 U.S. 576 (2000) 23
City of Arlington v. FCC,569 U.S. 290 (2013) 10
Contreras-Bocanegra v. Holder,678 F.3d 811 (10th Cir. 2012) 20
De La Rosa v. Garland,2 F.4th 685 (7th Cir. 2021) 28,34,35,42
Fort Bend County v. Davis,139 S. Ct. 1843 (2019) 15
Goncalves Pontes v. Barr,938 F.3d 1 (1st Cir. 2019) 25
Gonzales v. Thomas,547 U.S. 183 (2006)
Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011)
Henderson v. United States,568 U.S. 266 (2013)
31,
42
40
41
Hernandez-Perez v. Whitaker,911 F.3d 305 (6th Cir. 2018) 26
INS v. Nat'l Ctr. For Immigrants' Rights, Inc.,
502 U.S. 183 (1991) 19
Karingithi v. Whitaker,913 F.3d 1158 (9th Cir. 2019) 25,34
Key Med. Supply, Inc. v. Burwell,764 F.3d 955 (8th Cir. 2014) 24
Kirklin v. United States,883 F.3d 993 (7th Cir. 2018) 41
Kisor v. Wilkie,139 S. Ct. 2400 (2019) 23
Kucana v. Holder,558 U.S. 233 (2010) 21,40
Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682 (1949) 24,33,34
Leedom v. Kyne,358 U.S. 184 (1958) 24
Louisville & Nashville RR Co. v. Mottley,
211 U.S. 149 (1908) 11, 33,40
Maniar v. Garland,998 F.3d 235 (5th Cir. 2021) 28,32
Manrique v. U.S.,137 S. Ct. 1266 (2017) 42
Martin v. Occupational Safety & Health Review Commtn,
499 U.S. 144 (1991) 39
vii
Martinez-Garcia v. Ashcroft,366 F.3d 732 (9th Cir. 2004) 23
Martinez-Perez v. Barr,947 F.3d 1273 (10th Cir. 2020) 27
Matter of Aguilar-Mendez,28 I.&N. Dec. 262 (BIA 2021) 28
Matter of Andrade and Carbajal Ayala,
27 I. & N. Dec. 557 (BIA 2019) 22,24,27,37
Matter of Bermudez Cota,27 I. & N. Dec. 441 (BIA 2018) 9,18,22,30
Matter of Camarillo,25 I. & N. Dec. 644 (BIA 2011) 8
Matter of L-E-A-,28 I.&N. Dec. 304 28
Matter of Matter of Rosales Vargas & Rosales Rosales,
27 I & N. Dec. 745 26,27,28,32,35
Matter of Ordaz,26 I. & N. Dec. 637 (BIA 2015) 8
McGirt v. Oklahoma,140 S. Ct. 2452 (2020) 40
Mead Corp. v. Tilley,490 U.S. 714 (1989) 20
Mohasco Corp. v. Silver,447 U.S. 807 (1980) 20,22
Niz-Chavez v. Garland,141 S. Ct. 1474 (2021)
Nkomo v. Att'y Gen.,
passim
930 F.3d 129 (3d Cir. 2019) 25
Ortiz-Santiago v. Barr,924 F.3d (7th Cir. 2019) 7, 14, 15, 27,34
Pereira v. Sessions,138 S. Ct. 2105 (2018). 4, 9,30, 39,41
viii
Perez-Sanchez v. U.S. Att'y Gen.,935 F.3d 1148 (llth Cir. 2019) 27
Pierre-Paul v. Barr,930 F.3d 684 (5th Cir. 2019) 27, 28
Popa v. Holder,571 F.3d 890 (9th Cir. 2009) 41
Prestol Espinal v. Att'y Gen. of the U.S.,653 F.3d 213 (3d Cir. 2011) 21
Reed Elsevier, Inc. v. Muchnik,559 U.S. 154 (2010) 11, 13
Rhode Island v. Massachusetts,37 U.S. 657 (1838) 10
Santos-Santos v. Barr,917 F.3d 486 (6th Cir. 2019) 26
Saqr v. Holder,580 F.3d 414 (6th Cir. 2009) 20
Scheerer v. U.S. Att'y Gen.,445 F.3d 1311 (llth Cir. 2006) 21
Schneider v. Chertoff,450 F.3d 944 (9th Cir. 2006) 21
Sebelius v. Auburn Regional Medical Center,568 U.S. 145 (2013) 14
Shalala v. Guernsey Memorial Hospital,514 U.S. 87 (1995) 39
Simpson v. U.S. Attorney General, F.4th , 2021 WL 3377498 (7th Cir. Aug. 4, 2021) 28
United States v. Bastide-Hernandez,3 F.4th 1193 (9th Cir. 2021) 25, 32
United States v. Cortez,930 F.3d 350 (4th Cir. 2019) 27
United States v. El Shami,434 F.3d 659 (4th Cir. 2005) 40
ix
United States v. Kwai Fun Wong,575 U.S. 402 (2015) 14
United States v. Mendoza,963 F.3d 158 (1st Cir. 2020) 25
United States v. Vanness,85 F.3d 661 (D.C. Cir. 1996) 10
Constitutions
U.S. Const. Art. I, § 8 and Art. III, § 2 35
Federal Statutes
45 U.S.C. § 153 21
6 U.S.C. § 521 40
8 U.S.C. § 1103 40
8 U.S.C. § 1229 passim
8 U.S.C. § 1229a passim
8 U.S.C. § 1252 8,9, 10, 11
8 U.S.C. § 1326 61
8 U.S.C. § 1224 16
8 U.S.C. §1231 33
28 U.S.C. § 1331 20, 31
28 U.S.C. § 1332 20, 31
Federal Regulations
8 C.F.R. § 239.2 37
8 C.F.R. § 242.1 6
8 C.F.R. § 1003.13 6, 23, 39
8 C.F.R. § 1003.14 passim
8 C.F.R. § 1003.15 28
8 C.F.R. § 1003.18 8, 28
8 C.F.R. § 1239.2 37
Federal Rules
Fed. R. Civ. P. 12(h)(3) 19
Other Authorities
62 Fed. Reg. (1997) 7,8, 9
68 Fed. Reg. 9830 (Feb. 23, 2003) 19
Brief of Former BIA Chairman and Immigration Judge Paul WickhamSchmidt as Amicus Curiae Supporting Petition, Pereira v. Sessions,138 S. Ct. 2105 (No. 17-459), 2018 WL 1156645 9
Pereira's Aftershocks,61 WILLIAM AND MARY L. REV. 1 (2018) 39
Refugee Roulette: Disparities in Asylum Adjudication,60 STAN. L. REV., 295 (2007) 6, 7
xi
PETITION FOR A WRIT OF CERTIORARI
Petitioner Erick Adrian Roman-Vega respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of Appeals for the Ninth
Circuit.
OPINIONS BELOW
The decision of the court of appeals is unreported, and by that same order the
Ninth Circuit denied Petitioner's request that the case be heard initially en banc.
(Pet. App. la-2a & n. 1.) The decisions of the Board of Immigration Appeals (Pet.
App. 3a) and the immigration judge (Pet. App. 6a, 29a) are unreported.
JURISDICTION
The judgment of the Court of Appeals for the Ninth Circuit was entered on
April 1, 2021. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
The petition is timely, pursuant to this Court's orders issued March 19, 2020 and July
19, 2021.
STATUTORY AND REGULATORY PROVISIONS INVOLVED
8 U.S.C. § 1229(a) provides in relevant part:
In removal proceedings under section 1229a of this title, written notice
(in this section referred to as a "notice to appear") shall be given in
person to the [non-citizen] . . . specifying the following: . . .
(G)(i) The time and place at which proceedings will be held.
8 C.F.R. § 1003.13 provides in relevant part:
Charging Document means the written instrument which initiates a
proceeding before an Immigration Judge. . . . For proceedings initiated
after April 1, 1997, these documents include a Notice to Appear . . . .
8 C.F.R. § 1003.14(a) provides in relevant part:
Jurisdiction vests, and proceedings before an Immigration Judge
commence, when a charging document is filed with the Immigration
Court by the Service. The charging document must include a certificate
showing service on the opposing party pursuant to § 1003.32 which
indicates the Immigration Court in which the charging document is
filed.
8 C.F.R. § 1003.15(b) provides in relevant part:
The Order to Show Cause and Notice to Appear must also include the
following information:
(1) The nature of the proceedings against the alien;
(2) The legal authority under which the proceedings are conducted;
(3) The acts or conduct alleged to be in violation of law;
(4) The charges against the alien and the statutory provisions alleged to
have been violated;
(5) Notice that the alien may be represented, at no cost to the
government, by counsel or other representative authorized to appear
pursuant to 8 CFR 1292.1;
2
(6) The address of the Immigration Court where the Service will file the
Order to Show Cause and Notice to Appear; and
(7) A statement that the alien must advise the Immigration Court
having administrative control over the Record of Proceeding of his or her
current address and telephone number and a statement that failure to
provide such information may result in an in absentia hearing in
accordance with § 1003.26.
8 C.F.R. § 1003.18(b) provides in relevant part:
In removal proceedings pursuant to section 240 of the Act, the Service
shall provide in the Notice to Appear, the time, place and date of the
initial removal hearing, where practicable. If that information is not
contained in the Notice to Appear, the Immigration Court shall be
responsible for scheduling the initial removal hearing and providing
notice to the government and the alien of the time, place, and date of
hearing.
The full text of sections 1229, 1229a, 1003.13, 1003.14, 1003.15, and 1003.18
are reproduced in Appendix E, post, at 31a-48a.
3
INTRODUCTION
This case concerns a conflict among the circuits and the Board of Immigration
Appeals ("BIA") that is the next chapter of this Court's decision in Niz-Chavez. This
Court's decisions in Pereira and Niz-Chavez have raised critical questions regarding
what is required to properly initiate and vest jurisdiction in immigration courts in
removal proceedings. A circuit conflict has arisen regarding the analysis of objections
to defects in the initiation of removal proceedings.
Removal proceedings pursuant to section 1229a are initiated by the
Department of Homeland Security ("DHS"), via the filing of a notice to appear with
an immigration court. Section 1229(a) specifies the required contents for a valid
notice to appear, including specification of, "The time and place at which the
proceedings will be held." Jurisdiction does not vest in the immigration court until
that notice to appear is filed. 8 C.F.R. § 1003.14(a).
In Pereira, this Court rejected the government's practice of initiating removal
proceedings with notices to appear that specified neither the time nor place of the
proceeding. Pereira, 138 S. Ct. at 2113. In Niz-Chavez, this Court went further,
holding that an initially invalid notice to appear cannot be cured by issuing
subsequent documents. Niz-Chavez, 141 S. Ct. at 1382, n. 2.
Taken together, these decisions and the plain language of section 1229(a) raise
a further question: can a removal proceeding be lawfully initiated without a section
1229(a)-compliant notice to appear? As elaborated below, the circuits and the BIA
are split as to whether such non-compliance is even a cognizable defect, and those
4
circuits that recognize it is a cognizable defect analyze objections to defective notices
to appear differently.
This Court should grant certiorari to resolve this conflict. The conflict is based
on deep-seated and fundamentally different conceptions of the source of immigration
court jurisdiction, and which rules apply (regulations versus the statute). Resolution
of the conflict will definitively inform those subject to removal proceedings how (and
in fact, whether) objections can be raised to defects in the initiation of those
proceedings. Resolution of this issue will have nationwide consequences on the
orderly operation of the immigration system and prevent the availability of relief
from solely turning on the location where removal proceedings are initiated.
STATEMENT
A. The government may only initiate section 1229a removal proceedings
based on a self-contained notice to appear containing all elements
required by section 1229(a); otherwise, jurisdiction never vests.
Statutory Background and Institution of the Notice to Appear
1. Section 1229a provides immigration judges the sole and exclusive
responsibility to conduct proceedings for deciding the inadmissibility or deportability
of non-citizen. 8 U.S.C. § 1229a(a)(1) & (3). In removal proceedings pursuant to
section 1229a, "written notice (in this section referred to as a 'notice to appear') shall
be given in person to the" non-citizen, "specifying the following: . . . (G)(i) The time
and place at which the proceedings will be held." Current regulations state that
5
proceedings before an immigration judge commence when that notice to appear is
filed with the immigration court by DHS. 8 C.F.R. §§ 1003.13 & 1003.14(a).1
The "notice to appear" was created as part of the Illegal Immigration Reform
and Immigrant Responsibility Act ("IIRIRA"), Pub L. 104-208, Div. C, 110 Stat. 3009-
546. Prior to 1996, what were then called "deportation proceedings" were initiated
with "an 'order to show cause."' See 8 U.S.C. § 1252b(a)(1) (1994). The statute defined
that document as "written notice . . . specifying" particular information about the
proceedings, including information like the "acts of conduct alleged to be in violation
of the law," the "charges against the [non-citizen] and the statutory provisions alleged
to have been violated," and the fact that the "[non-citizen] may be represented by
counsel." Id.
Notably, however, the "order to show cause" did not need to identify "the time
and place at which the proceedings will be held"; that information could be provided
"in the order to show cause or otherwise." 8 U.S.C. § 1252b(a)(2)(A). This led to a
two-step notice process, in which the government first served a non-citizen with an
"order to show cause," and the immigration court subsequently sent the time and
place of proceedings. See 8 C.F.R. § 242.1(b), 3.18 (1996).
1 The Executive Office of Immigration Review ("EOIR"), which encompasses the immigration courts,is part of the U.S. Department of Justice. Prior to 1983, immigration courts were organized under thelegacy Immigration and Naturalization Service ("INS"), the same agency that employed trial attorneyswho opposed immigrant's claims in immigration courts. See Jaya Ramji-Nogales et al., RefugeeRoulette: Disparities in Asylum Adjudication, 60 STAN. L. REV., 295, 325 (2007). Legacy INS ceased toexist under that name in 2003, when most of its functions were transferred to new entities within thethen-newly formed DHS. Now, counsel for the government in immigration proceedings are employedby Immigration and Customs Enforcement, a branch of DHS, an agency distinct from the Departmentof Justice. Id. at 325-26.
6
In creating the "notice to appear" in IIRIRA, however, Congress rejected this
flexibility and jettisoned the previously contemplated two-step notice process. Since
there were concerns that existing notice procedures led to unnecessary disputes about
whether non-citizens received certain notices (see H.R. Rep. No. 104-469, pt. I, at 122,
159 (1996)), IIRIRA abandoned the option of sending a hearing notice after the initial
notice document, and instead required that the "time and place at which the
proceedings will be held" be included in the "notice to appear" itself. See 8 U.S.C. §
1229(a)(1)(G)(i). The "notice to appear" definition was otherwise practically identical
to the prior "order to show cause" definition. Compare 8 U.S.C. § 1252b(a)(1) (1994)
with 8 U.S.C. § 1229(a)(1)(A)-(F).
Regarding the differences between the pre-1996 Order to Show Cause and the
post-IIRIRA Notice to Appear, and the ramifications of the shift:
The Order to Show Cause had to include largely the sameinformation as the later [Notice to Appear], except that itdid not need to specify the time and place of the hearing.See [8 U.S.C. § 1252b(a)(1) (1995)]. Instead . . . the statuteallowed the time and place to be communicated to a non-citizen 'in the order to show cause or otherwise.' Id.(emphasis added). When Congress enacted IIRIRA, itcombined the separate provision in section 1252b(1)(2)(A)with the other substantive requirements of the Order toShow Cause, and it came up with the Notice to Appear. The`or otherwise' language disappeared.
See Ortiz-Santiago v. Barr, 924 F.3d 965, 962 (7th Cir. 2019).
This Court, in Niz-Chavez, likewise noted:
[T]he year after Congress adopted IIRIRA the governmentproposed a rule to create "the Notice to Appear, Form 1-862,replacing the Order to Show Cause, Form 1-221." See 62Fed. Reg. 449 (1997). In the preamble to its proposed rule,the government expressly acknowledged that "the
7
language of the amended Act indicat[es] that the time andplace of the hearing must be on the Notice to Appear."
Niz-Chavez, 141 S. Ct. at 1484 (emphasis added).
2. The government initially recognized Congress's rejection of the two-step
removal proceeding notice process. Shortly after IIRIRA was enacted, legacy INS and
the EOIR jointly issued a proposed rule to implement the new "notice to appear"
provision. A preamble to the regulations explained, in a section entitled "The Notice
to Appear (Form I-862)," that the rule "implements the language of the amended Act
indicating that the time and place of the hearing must be on the Notice to
Appear" (emphasis added), and recognized that the government would need
"automated scheduling" to issue notices to appear with the required time-and-place
information. 62 Fed. Reg. 449. Consistent with that recognition, the BIA
subsequently explained that a "notice to appear" is a "single instrument," Matter of
Ordaz, 26 I. & N. Dec. 637, 640 n.3 (BIA 2015), and that subsequent notices, like
"notice[s] of hearing," are not "a constituent part of a notice to appear." Matter of
Camarillo, 25 I. & N. Dec. 644, 648 (BIA 2011).
The government, however, explicitly refused to do what it conceded section
1229(a) required. The regulations that legacy INS and EOIR ultimately adopted
now codified at 8 C.F.R. § 1003.18—specifically authorized the very two-step process
that IIRIRA rejected, stating that the "notice to appear" only needed to include "the
time, place and date of the initial removal hearingl] where practicable" (emphasis
added).
8
The new regulation led to a "byzantine" process with extended delays and the
potential for various errors. See Brief of Former BIA Chairman and Immigration
Judge Paul Wickham Schmidt as Amicus Curiae Supporting Petition at *4, Pereira,
138 S. Ct. 2105 (No. 17-459), 2018 WL 1156645.
At one time, the EOIR and DHS developed an "Interactive Scheduling System"
which enabled DHS to access the immigration courts' Master Calendar availability
and issue initial "notices to appear" with times and dates included for actual available
hearing dates. Id. at *6. However, this system has apparently gradually fallen into
disuse, despite the fact that the coordination permitted by that system would have
been beneficial for all involved. Id. at *7-*8.
Ultimately, the regulatory exception swallowed the statutory rule. Though the
regulatory preambles show that the exception was only intended to apply in unusual
circumstances like "power outages" or "computer crashes/downtime," see 62 Fed. Reg.
449, by 2017 the government had begun omitting the time-and-place information
from "almost 100 percent" of its putative notices to appear. See Pereira, 138 S. Ct. at
2111. And, eventually, the BIA purported to approve this practice in Matter of
Bermudez Cota, 27 I. & N. Dec. 441, 445, 447 (BIA 2018), where the BIA held that
"[j]urisdiction vests, and proceedings before an [immigration judge] commence" upon
the filing of a "charging document," whether or not that charging document notes the
time and place of initial hearing. This decision is directly contrary to the plain
language of section 1229(a) (notice to appear shall include, "The time and place at
which the proceedings will be held").
9
The Notice to Appear Is A Document with Jurisdictional Implications
3. The government's compliance with the requirements of section 1229(a) is a
statutory condition for the government's proper initiation of and exercise of
jurisdiction over removal proceedings. A notice to appear serves more than one
function: its filing is necessary to commence a removal proceeding under section
1229a, and current regulation provides that "jurisdiction vests" upon the filing of that
document. 8 C.F.R. § 1003.14(a).
The term "jurisdiction" is subject to many meanings, depending on the context.
See, e.g., United States v. Vanness, 85 F.3d 661, 663, n.2 (D.C. Cir. 1996)
("Jurisdiction' is a word of many, too many, meanings"). This Court has instructed
that "a rule should not be referred to as jurisdictional unless it governs a court's
adjudicatory capacity, that is, its subject-matter or personal jurisdiction." Id. This
Court has cautioned, however, that the endeavor to determine what is "jurisdictional"
versus "nonjurisdictional" in the case of agency adjudicatory proceedings is a "mirage"
that obscures the real question of "whether the agency has stayed within the bounds
of its statutory authority." City of Arlington v. FCC, 569 U.S. 290, 297 (2013).
Any court action taken without this prescribed limitation is an extrajudicial
act. See Rhode Island v. Massachusetts, 37 U.S. 657, 714 (1838); see Fed. R. Civ. P.
12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action"). This is the domain of subject-matter
jurisdiction—what this Court enshrined when it held that courts have a duty to
10
ensure that their jurisdiction "defined and limited by statute, is not exceeded."
Louisville & Nashville RR Co. v. Mottley, 211 U.S. 149, 150 (1908).
In removal proceedings where the government has failed to comply with
section 1229(a)'s notice requirements, subject matter jurisdiction never vests in the
immigration court. Subject-matter jurisdiction for any court whether for an Article
III court, an Article I "legislative court," or even an administrative tribunal—refers
to the adjudicatory authority, or competence of the court to act. See Reed Elsevier,
Inc. v. Muchnik, 559 U.S. 154, 160 (2010); Bowles v. Russell, 551 U.S. 205, 213 (2007)
(noting that "the notion of 'subject-matter jurisdiction obviously extends to 'classes of
cases . . . falling within a court's adjudicatory authority') (internal citations omitted).
That authority is always derived from, and dependent on, the enabling
legislation that the legislature has promulgated "delineating the classes of cases" that
the court can hear. Reed Elsevier, 559 U.S. at 160. Just as Congress set the
parameters of the authority vested in Article III courts in various statutory grants of
original jurisdiction (see e.g., 28 U.S.C. §§ 1331 & 1332), it did the same for
immigration courts via sections 1229 and 1229a. The language is clear in delineating
the classes of cases an immigration court can hear: "An immigration judge shall
conduct proceedings for deciding the inadmissibility or deportability of [a non-
citizen]." See 8 U.S.C. § 1229a(a)(1). And such cases are initiated by a notice to
appear that complies with section 1229(a), which must be served before the
proceedings can commence and the jurisdiction of the immigration courts is invoked.
8 U.S.C. § 1229(a).
11
IIRIRA's text and structure also confirm that a section 1229(a)-compliant
notice to appear is required to initiate removal proceedings under section 1229a and
for the immigration court's exercise of jurisdiction. Cebollero-Bertran v. Puerto Rico
Aqueduct and Sewer Auth., 4 F.4th 63, 70 (1st Cir. 2021) (explaining that courts
consider the statutory condition's text, context, and relevant historical treatment to
determine if a limitation is jurisdictional or a claim processing rule) (cleaned up). To
start, the statutory definition of a "notice to appear" falls under 8 U.S.C. § 1229, which
is entitled "Initiation of Removal Proceedings." The next section, section 1229a, is
entitled "Removal Proceedings" and authorizes an immigration judge to "conduct
proceedings for deciding the inadmissibility or deportability" of a person in the United
States. Read together, an immigration judge's authority under section 1229a vests
only when a statutorily compliant notice to appear initiates the proceedings. IIRIRA
further confirms Congress's intent: providing that the notice to appear under section
1229 "confer[s] jurisdiction on the immigration judge." Pub. L. No. 104-208, 110 Stat.
3009-626.
This Court has characterized the notice to appear as a "case-initiating
document," observing that "[a] notice to appear serves as the basis for commencing
a grave legal proceeding." Niz-Chavez, 141 S. Ct. at 1482 (emphasis added). Niz-
Chavez confirms that a notice to appear serves this function only when compliant
with the statute. See id. at 1482, n.2 (explaining that a notice "must contain the
catalogue of information Congress has said [an individual] is entitled to receive in
that document") (emphasis added). This Court has expressed little sympathy for the
12
government's prior assertions that it could attempt to avoid the plain language of
section 1229(a) and attempt to segment the notice required to commence such
proceedings. See id. at 1484 (rejecting the government's contention that compliance
with its "self-serving regulations" could suffice to meet the agency's statutory
obligations).
Niz-Chavez thus confirms that a notice to appear that includes the information
required by section 1229(a) is necessary to confer jurisdiction. Put another way, Niz-
Chavez makes clear that filing a self-contained and statutorily compliant notice to
appear with the immigration court, after proper service of that document, is a
condition precedent to the initiation of removal proceedings that is, necessary to
convey "jurisdiction" and to invoke the authority the statute affords the immigration
court.
Defects in The Notice to Appear Are Not a Mere "Claim-Processing" Issue
4. Non-compliance with section 1229(a) is a jurisdictional defect, not a mere
"claim-processing" issue. This Court has set forth the general approach to distinguish
jurisdictional defects from non-jurisdictional "claim-processing" issues:
If the Legislature clearly states that a threshold limitationon a statute's scope shall count as jurisdictional, thencourts and litigants will be duly instructed and will not beleft to wrestle with the issue. But when Congress does notrank a statutory limitation on coverage as jurisdictional,courts should treat the restriction as nonjurisdictional incharacter.
Arbaugh v. Y. & H. Corp., 546 U.S. 500, 515-516 (2006) (citation and footnote
omitted). However, this Court has frequently wrestled with the distinction. See Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010) and Arbaugh, 546 U.S., at 503.
13
For instance, in Arbaugh, the question was whether the "fifteen or more employees"
limitation for Title VIII claims was jurisdictional. Id. The Court held that it was not.
Id. at 504.
The requirements of section 1229(a) are not among the type of "claim-
processing rules" at issue in cases such as Sebelius v. Auburn Regional Medical
Center, 568 U.S. 145, 154 (2013) (provision of Medicare statute setting 180-day limit
for filing appeals to Provider Reimbursement Review Board not jurisdictional) and
United States v. Kwai Fun Wong, 575 U.S. 402, 420 (2015) (time limitations under
Federal Tort Claims Act were non-jurisdictional and therefore subject to equitable
tolling). Similarly, in Arbaugh, the Court considered a rule (the 15-employee
limitation) for relief to be part of the ingredients for a claim, and therefore the issue
in that case was properly considered a claims-processing issue, not a matter of
jurisdiction. Arbaugh, 546 U.S. at 514-16. Here, the notice to appear requirement is
not in the realm of "claims for relief' ingredients; it instead concerns whether the
congressionally-defined jurisdiction of the immigration court has been triggered. See
8 U.S.C. §§ 1229a(a) & 1229(a)(1).
Nevertheless, some courts have found that there is a specific distinction
between Congress's grant of subject matter jurisdiction to the immigration courts,
and the separate statutory requirements for notices to appear, which, they argue, are
not expressly treated as jurisdictional requirements. The Seventh Circuit adopted
this position in Ortiz-Santiago when it pointed to Arbaugh and its progeny and
concluded that section 1229(a) "says nothing about the agency's jurisdiction." Ortiz-
14
Santiago v. Barr, 924 F.3d 956, 963 (7th Cir. 2019). The Seventh Circuit further
disregarded the jurisdictional language in section 1003.14, concluding "when the
agency creates rules for its adjudicatory proceedings, it must act within the limits
that Congress gave it." Id. The Seventh Circuit explained that the charge-filing
requirement, while mandatory, does not have any effect on the immigration courts'
jurisdiction.
The Seventh Circuit's "claim-processing" approach to notice to appear defects
is seductive, but erroneous. In Fort Bend County v. Davis, the Court further clarified
the types of errors that are jurisdictional. 139 S. Ct. 1843, 1846 (2019). The Court
held that jurisdiction "describe the classes of cases a court may entertain (subject-
matter jurisdiction) or the persons over whom a court may exercises adjudicatory
authority (personal jurisdiction)." Id. Congress can enact jurisdictional
requirements, the Court recognized, "by incorporating them into a jurisdictional
provision," such as Congress has done with the amount-in-controversy requirement
for federal court diversity jurisdiction. Id. at 1849 (citing 28 U.S.C. § 1332(a)). In
short, when Congress "clearly states" that a requirement is jurisdictional, the courts
should treat it as such. Likewise, "when Congress does not rank a prescription as
jurisdictional, courts should treat the restriction as nonjurisdictional in character."
Id. at 1850 (cleaned up).
Here, section 1229(a) is explicitly jurisdictional. DHS initiates removal
proceedings pursuant to section 1229a when it files the appropriate initiating
document containing the elements set forth in section 1229(a). It would be a statutory
15
impossibility for an immigration judge to order the removal of a non-citizen under
section 1229a if a complete charging document was never filed. 8 U.S.C. §
1229a(a)(3).2 The charging document loses its essential character and ceases to
become a charging document if it does not contain its statutorily-required elements.
8 U.S.C. § 1229(a). If the notice to appear does not comply, the immigration judge is
thus statutorily barred from ordering the removal of a non-citizen under section
1229a. See, e.g., Niz-Chavez at 1485 (government first required to file "a compliant
notice to appear" to initiate removal proceedings).
To be sure, Congress did create limited statutory exceptions to section
1229(a)(1). See 8 U.S.C. §§ 1229(a)(2)(B) & 1229a(b)(5)(b) (where non-citizen fails to
provide address as required by statute, the government need not provide notice). The
existence of these statutory exceptions to section 1229(a)(1) does not mean section
1229(a)(1) is a mere claim-processing rule. Rather, it confirms the jurisdictional
nature of these requirements, since Congress has the sole authority to create, define,
and limit agency jurisdiction. Accord U.S. Const. Art. I, § 8 and Art. III, § 2.
Taking the claim-processing argument to its conclusion, if section 1229(a) were
but a claim-processing rule, an immigration judge could order the removal of a non-
citizen from the United States even when no notice to appear has been filed with the
immigration court. Niz-Chavez made it clear that this is not what Congress intended
when it promulgated section 1229(a). See Niz-Chavez at 1479 ("in IIRIRA, Congress
2 Illustrating the importance of he notice to appear in removal proceedings pursuant to section 1229a,
the separate but related statutes regarding expedited removal and reinstatement of removal orders
contain no "notice to appear" requirement. 8 U.S.C. §§ 1224 & 1231(a)(5).
16
took pains to describe exactly what the government had to include in a notice to
appear, and . . . the time and place of the hearing were among them.").
To illustrate this point, suppose a non-citizen without lawful immigration
status presented themself to an immigration judge and, in the absence of any
charging document having been filed or served, the non-citizen admitted to the
immigration judge that they are removable and inadmissible.3 In the absence of the
filing of a notice to appear or other charging document, would the immigration judge
have jurisdiction to grant the non-citizen's request to be ordered removed? In other
words, do non-citizens have the power to forfeit the requirement of the filing of a
charging document? If non-citizens can affirmatively place themselves in removal
proceedings in the absence of a charging document, then the claim-processing
argument would have more force. If, however, non-citizens lack the power to
affirmatively place themselves in removal proceedings in the absence of a charging
document, then the filing of a charging document must be a jurisdictional
requirement.
5. This legal absurdity hits at the fundamental issue in the BIA's
interpretation of this Court's holding in Pereira. In Bermudez-Coca, the BIA held
that "a notice to appear that does not specify the time and place of a [non-citizen]'s
initial removal hearing vests an Immigration Judge with jurisdiction over the
removal proceedings and meets the requirements of [8 U.S.C. § 1229(a)], so long as
3 E.g., cancellation of removal under 8 U.S.C. § 1229b(b)(4) under the Violence Against Women Actand cancellation of removal under 8 U.S.C. § 1229b(b)(1) for non-legal permanent residents are bothforms of immigration relief available only to non-citizens in removal proceedings under section 1229a.
17
a notice of hearing specifying this information is later sent to the [non-
citizen]." 27 I. & N. at 447 (emphasis added).
The BIA thereby acknowledged that the immigration judge lacks subject-
matter jurisdiction over removal proceedings when a non-compliant notice to appear
is used to commence such proceedings: under this conception, jurisdiction only vests
upon the filing of a putative notice to appear and a subsequent notice of hearing.
Bermudez-Cota, 27 I. & N. Dec. at 447. Effectively, the BIA would allow the
immigration court to confer jurisdiction upon itself when it provides a notice of
hearing to the non-citizen, thereby retroactively repairing the notice to appear. In
any event, this conception is fundamentally at odds with the BIA's own regulations:
"Jurisdiction vests, and proceedings before an Immigration Judge commence, when a
charging document is filed with the Immigration Court" by DHS. 8 C.F.R. §
1003.14(a).
This conception also cannot be reconciled with this Court's decision in Niz-
Chavez: a notice to appear does not comply with section 1229(a) unless it contains all
the elements required by that statute. 141 S. Ct. at 1482, n. 2. After Niz-Chavez, the
BIA can no longer rely on the two-step notice to appear process, thereby foreclosing
the BIA from relying on a two-step notice procedure to convey jurisdiction to an
immigration judge.
The only notice to appear that can commence jurisdiction in the immigration
courts is a notice to appear that is fully compliant with section 1229(a). Non-
18
compliance with section 1229(a) is a jurisdictional problem; it is not a claim-
processing issue.
B. The government cannot properly rely on its regulations' lack of
mandatory "time and place" notice requirements in derogation of
section 1229(a).
The History and Operation of EOIR Regulations
1. EOIR, which encompasses immigration courts, is part of the U.S.
Department of Justice. As such, Congress has decreed that the EOIR is "subject to
the direction and regulation of the Attorney General," including regulations
promulgated by the Attorney General. 6 U.S.C. § 521(a) (2018); 8 U.S.C. § 1103(g)(2).
EOIR has invoked its statutory authority under IIRIRA to promulgate regulations
concerning the scope of its authority. See 8 C.F.R. § 1003.14(a). Indeed, the authority
citation in the Federal Register for section 1003.14 references three statutes (8 U.S.C.
§ 1103, 1229 & 1229a), see 68 Fed. Reg. 9830, 9832 (Feb. 23, 2003).
The relevant subsection of section 1003.14(a) is based most directly on section
1229. No other statutory provision defines or further delineates the notice to appear
requirement; section 1229(a) does so expressly. Indeed, the title of the section—
"Initiation of Removal Proceedings"—was the heading Congress used in section 239
of the Immigration and Nationality Act (Pub. L. No. 104-208, 110 Stat. 3009-587
(1996)). The title underscores that it is the central authority on which section
1003.14, which itself is captioned "Jurisdiction and commencement of proceedings,"
is based. 8 C.F.R. § 1003.14; see also INS v. Nat'l Ctr. For Immigrants' Rights, Inc.,
19
502 U.S. 183, 189 (1991) ("[T]he title of a statute or section can aid in resolving an
ambiguity in the legislation's text"); Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989)
("[A]ny possible ambiguity is resolved against respondents by the title of [the
statute]"). In other words, the agency clearly intended to mirror Congress's intent in
treating the notice to appear as the charging document that is required to initiate
removal proceedings. Without the requisite notice to appear, the immigration court
cannot act.
The plain text of the regulation informs its interpretation. The first full
sentence of 8 C.F.R. § 1003.14(a) is "Jurisdiction vests, and proceedings before
an Immigration Judge commence, when a charging document is filed . . . ."
(emphasis added), which confirms that the requirement is one of subject-matter
jurisdiction. See Saqr v. Holder, 580 F.3d 414, 421 (6th Cir. 2009) (holding that
" c̀ommence' is a term of art which defines when jurisdiction vests in an Immigration
Court."). On its face, section 1003.14(a) concerns whether a particular case is
properly before an immigration court. Without this propriety, an immigration court
lacks authority to render any decisions regarding the issues raised.
However, an agency cannot properly amend its jurisdiction or the conditions
precedent thereto in contradiction of Congress's statutory authorization. See
Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980) ("We must also reject any
suggestion that the [agency] may adopt regulations that are inconsistent with the
statutory mandate. As we have held on prior occasions, its 'interpretation' of the
statute cannot supersede the language chosen by Congress"); Contreras-Bocanegra v.
20
Holder, 678 F.3d 811, 819 (10th Cir. 2012) (en banc); Prestol Espinal v. Att'y Gen. of
the U.S., 653 F.3d 213, 218 (3d Cir. 2011); Schneider v. Chertoff, 450 F.3d 944, 954-
55 (9th Cir. 2006); Scheerer v. U.S. Att'y Gen., 445 F.3d 1311, 1318-19 (11th Cir. 2006).
Indeed, this Court has been swift to quash attempts by executive agencies to
vary their congressionally-delegated jurisdiction. In Union Pacific Railroad Co. v.
Brotherhood of Locomotive Engineers & Trainmen General Committee of Adjustment,
the Court held that administrative agencies (there, the National Railroad
Adjustment Board) cannot alter their own jurisdiction by regulation or by judicial
decision. 558 U.S. 67, 71-72 (2009). There, Congress had vested the Board with
subject matter jurisdiction to adjudicate grievances of railroad employees that remain
unresolved after internal dispute resolution procedures. Id. at 71. A separate statute
imposed a settlement conference requirement on the parties. Id. at 72. Union Pacific
rejected the Board's view that the failure to satisfy the conference requirement
divested the Board of jurisdiction: "By presuming authority to declare procedural
rules 'jurisdictional,' the panel failed to conform, or confine itself, to matters
[Congress placed] within the scope of [the Board's] jurisdiction." Id. at 71 (quoting 45
U.S.C. § 153). By the same token, EOIR cannot eliminate a jurisdictional condiction
imposed by Congree.
EOIR Regulations Cannot Absolve Statutory Defects in Notices to Appear
2. Both EOIR and DHS have long agreed that the "issuing, serving, and filing
[of] a Notice to Appear (Form I-862)" (or one of two other "charging documents" not
at issue here) are necessary to "vest[] jurisdiction over a [non-citizen's] removal
21
proceedings with the Immigration Court." Matter of Andrade and Carbajal Ayala, 27
I. & N. Dec. 557, 558 (BIA 2019).
Indeed, in Matter of Bermudez-Cota, the BIA acknowledged that under 8
C.F.R. § 1003.14(a), "Wurisdiction vests . . . before an Immigration Judge . . . when a
charging document is filed with the Immigration Court." 27 I. & N. Dec. at 444.
Unfortunately, beyond that the specific finding, the BIA in Bermudez-Cota left the
safe harbor of the statutory regime and sailed into stormier waters. The BIA,
substituting the statutory requirements with those of the regulation, found that
"Nile regulation does not specify what information must be contained in a 'charging
document' at the time it is filed with an Immigration Court, nor does it mandate that
the document specify the time and date of the initial hearing before jurisdiction will
vest." Id. at 445. As a result, the BIA determined that it would be reasonable to
interpret "charging document" as two different documents, that could be served
sequentially: (1) a notice to appear without the time and place of removal proceedings,
followed by (2) a notice of hearing from the immigration court with the time and place
of removal proceedings. Id. 445-47.
There is a critical flaw in this analysis. This Court held in Niz-Chavez that a
notice to appear without time and place information could not stand under section
1229(a). 141 S. Ct. at 1486. And because it is Congress's statutory authorization that
ultimately controls, the BIA cannot rely on regulations that in effect delete
requirements from the statute. See Mohasco, 447 U.S. at 825. Given this Court's
holding as to what is statutorily required of a notice to appear, and given the
22
definition provided by section 1003.13, if the government relies on a notice to appear
as a charging document to initiate removal proceedings pursuant to section
1003.14(a), it must do so via a self-contained, initiating document that contains time
and place information, as required by section 1229(a).
The BIA's contrary interpretation is plainly erroneous in light of the Supreme
Court's analysis of section 1229(a), and does not merit deference given its
inconsistency with the unambiguous definition of charging document set out in the
regulation itself. See Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) ("Auer deference is
not the answer to every question of interpreting an agency's rules . . . . [T]he
possibility of deference can arise only if a regulation is genuinely ambiguous. And
when we use that term, we mean it genuinely ambiguous, even after the court has
resorted to all the standard tools of interpretation"); see also Christensen v. Harris
Cty., 529 U.S. 576, 588 (2000).
Current regulations delimit the jurisdiction of immigration courts, providing
that "Wurisdiction vests . . . when a charging document is filed with the Immigration
Court." 8 C.F.R. § 1003.14(a). Those regulations define a "charging document" as the
"written instrument which initiates a proceeding before an Immigration Judge . . .
includ[ing] a Notice to Appear." 8 C.F.R. § 1003.13 (2018); see also Martinez-Garcia
v. Ashcroft, 366 F.3d 732, 735 (9th Cir. 2004) ("The only charging document available
after April 1, 1997, is the Notice to Appear"). If, as this Court clearly held in Niz-
Chavez, a document is not a notice to appear if it does not contain and time and place
information (141 S. Ct. at 1486), then such a purported notice to appear is not a valid
23
charging document. And, without a valid charging document, jurisdiction never vests
in the immigration court.
In other words, any action by an immigration court absent a valid notice to
appear is ultra vires, as it exceeds the court's congressionally-delegated power. Ultra
vires federal action is subject to challenge. Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 689-90 (1949); Aid Ass'n for Lutherans v. U.S. Postal Serv., 321
F.3d 1166, 1173 (D.C. Cir. 2003). Judicial intervention is appropriate when an agency
has plainly violated an unambiguous and mandatory legal requirement. Leedom v.
Kyne, 358 U.S. 184, 188-189 (1958); Key Med. Supply, Inc. v. Burwell, 764 F.3d 955,
962 (8th Cir. 2014).
In sum, a removal proceeding initiated without a section 1229(a)-compliant
notice to appear is an extra-jurisdictional proceeding. The issuance and filing of the
statutorily-compliant notice is a bright-line requirement, before which (and without
which) the immigration court has no jurisdiction to act. See Matter of Andrade, 27 I.
& N. Dec. at 558. The regulations cannot purport to provide otherwise.
C. The Courts of Appeals and the BIA are divided regarding the analysis
and ramifications of the government's use of notices to appear lacking
time or place information.
A rift has arisen among various Courts of Appeals and the BIA regarding how
defects in notices to appear are analyzed, and whether and in what manner the non-
citizen can seek relief for defectives notices to appear. This rift has reached the point
where the First, Third, Eighth, and Ninth Circuits take the position that initiatory
24
notices to appear that lack time and place information are simply not defective, and
non-compliant notices do not have any effect on an immigration judge's jurisdiction.
The Second and Sixth Circuits occupy a middle ground: a defective notice to appear
nevertheless confers jurisdiction so long as a hearing notice subsequently supplies
the missing information. However, the BIA and the Fourth, Fifth, Seventh, Tenth,
and Eleventh Circuits have taken an altogether different approach, analyzing defects
in notices to appear under a "claim-processing" theory: notices to appear that lack
hearing time or place information may be subject to challenge (and potential
termination of proceedings) in appropriate cases.
1. Since this Court's decision in Pereira, the First, Third, Eighth, and Ninth
Circuits have held that the regulations at sections 1003.14 and 1003.15, not section
8 U.S.C. § 1229, govern immigration court jurisdiction, that the regulations do not
require time or place information for jurisdiction to vest, and that notices to appear
lacking such information are not defective. Goncalves Pontes v. Barr, 938 F.3d 1, 5-7
(1st Cir. 2019); United States v. Mendoza, 963 F.3d 158 (1st Cir. 2020); Nkomo v. Att'y
Gen., 930 F.3d 129, 134 (3d Cir. 2019); Ali v. Barr, 924 F.3d 983 (8th Cir. 2019);
Karingithi v. Whitaker, 913 F.3d 1158, 1161-62 (9th Cir. 2019); Aguilar Fermin v.
Barr, 958 F.3d 887, 895 (9th Cir. 2020). The Ninth Circuit's decision in United States
v. Bastide-Hernandez, 3 F.4th 1193, 1196 (9th Cir. 2021) exemplifies this approach:
[W]e now hold that the regulation means what it says, andcontrols. The only logical way to interpret and applyKaringithi and Aguilar Fermin is that the jurisdiction ofthe immigration court vests upon the filing of [a notice toappear], even one that does not at that time inform the[non-citizen] of the time, date, and location of the hearing.
25
If this were not the case, upon the filing of [a notice toappear] jurisdiction would vest, but then would unvest ifthe [notice to appear] lacked required time, date, andlocation information, only to once again revest if asubsequent curative [notice of hearing] provided thatmissing information. Jurisdiction is not so malleable.Jurisdiction, for all its subtle complexities, is notephemeral. It either exists or it does not.
This approach is doomed at the outset: Karingithi and Aguilar Fermin are both
predicated on the BIA's decision in Bermudez-Cota, which is itself undermined by
both the plain language of section 1229(a) as interpreted by Niz-Chavez. Indeed, the
BIA itself is moving away from this analytical approach. Matter of Rosales Vargas,
27 I & N. Dec. at 751-52.
In contrast, the Second and Sixth Circuits have held that the regulations
govern jurisdiction, but that a defective notice to appear nevertheless confers
jurisdiction so long as a hearing notice subsequently supplies the missing
information. Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019); Hernandez-Perez
v. Whitaker, 911 F.3d 305 (6th Cir. 2018); Santos-Santos v. Barr, 917 F.3d 486 (6th
Cir. 2019). This approach is patently in tension with Niz-Chavez's foreclosure of
notice-by-installment theories. 141 S. Ct. at 1485-86. It is also predicated on the
unsupportable notion that after the filing of the notice to appear, the immigration
court is in a jurisdictional quantum super-position, which is then resolved by the
immigration court once it issues a further notice document. This is untenable.
The BIA and the Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits have
held that section 1229(a)'s requirements and/or the regulations governing
immigration court "jurisdiction," are claim-processing rules, not true jurisdictional
26
provisions. Matter of Rosales Vargas & Rosales Rosales, 27 I. & N. Dec. 745, 747 (BIA
2020) ("We conclude that the regulations at issue are 'claim-processing' or 'internal
docketing' rules, which do not implicate subject matter jurisdiction"); Perez-Sanchez
v. U.S. Att'y Gen., 935 F.3d 1148, 1150 (11th Cir. 2019) ("[T]he regulations set forth
a claim-processing rule as opposed to a jurisdictional one. We recognize § 1229(a)(1)
as setting out a claim processing rule as well"); United States v. Cortez, 930 F.3d 350,
359 (4th Cir. 2019) (agreeing that 8 C.F.R. § 1003.14(a), the regulations governing
when immigration jurisdiction vests, "is a procedural claim-processing rule without
jurisdictional implications"); Pierre-Paul v. Barr, 930 F.3d 684, 691 (5th Cir. 2019)
("8 C.F.R. § 1003.14 is not jurisdictional but is a claim-processing rule"); Ortiz-
Santiago v. Barr, 924 F.3d 956, 958 (7th Cir. 2019) ("failure to comply with the statute
dictating the content of a Notice to Appear is not one of those fundamental flaws that
divests a tribunal of adjudicatory authority. Instead, just as with every other claim-
processing rule, failure to comply with that rule may be grounds for dismissal of the
case"); Martinez-Perez v. Barr, 947 F.3d 1273, 1278 (10th Cir. 2020) (agreeing that
"the requirements relating to notices to appear are non-jurisdictional, claim-
processing rules").
In Matter of Rosales Vargas, the BIA subsequently found that beyond the
missing time and place information, that termination was not required where the
immigration court's address—information specifically required by section
1003.15(b)(6)—was not included in the notice to appear and could be remedied by a
subsequent hearing notice. 27 I. & N. Dec. 745, 750 (BIA 2020) ("We should read 8
27
C.F.R. § 1003.15(b)(6) in conjunction with 8 C.F.R. § 1003.18(b), which provides that
the notice to appear should provide the 'time, place and date of the initial removal
hearing, where practicable'").
Further, the BIA shifted its justification from its prior decision in Bermudez-
Cota, concluding that though the regulations used the word "jurisdiction," they are
actually "claim-processing' or 'internal docketing' rules, which do not implicate
subject matter jurisdiction." Id. at 747. The BIA recognizes that a "claim-processing
rule may be challenged in a timely manner," but suggested that even a timely
challenge requires a showing of prejudice, which the respondents in that case had not
demonstrated. Id. at 753-54.
Since this Court's decision in Niz-Chavez, the BIA and the Fifth, Seventh, and
Eleventh Circuits have all issued decisions confirming their position that even if a
notice to appear does not comply with section 1229(a), such errors remain a mere
claim-processing issue. Matter of L-E-A-, 28 I.&N. Dec. 304, 306, n. 3 (A.G. 2021);
Matter of Aguilar-Mendez, 28 I.&N. Dec. 262, 267 (BIA 2021); Maniar v. Garland,
998 F.3d 235, 242 (5th Cir. 2021)4; De La Rosa v. Garland, 2 F.4th 685, 687 (7th Cir.
2021); Simpson v. U.S. Attorney General, F.4th , 2021 WL 3377498 (7th Cir.
Aug. 4, 2021). This claim-processing theory is untenable for the reasons discussed in
section A ante; notice to appear defects are not mere claim-processing issues.
4 Maniar stated that the panel was adhering to prior Fifth Circuit precedent in Pierre-Paul v. Barr,
930 F.3d 684, 691 (5th Cir. 2019), which called section 1003.14 a claim.-processing rule. (Ma.njar, 998
F.3d at 242, n. 2.) However, Maniar itself does not use the term "claim-processing," so it is unclear
whether the Fifth Circuit is drifting from that framework.
28
D. Mr. Roman-Vega's removal proceedings should have been terminated
due to the defects in his initiating notice to appear.
1. Mr. Roman-Vega is a native and citizen of Mexico. He came to the United
States in 1997, and has not left since. A.R. 261, 790. He attended both high school
and some college in the United States. He is married to a United States citizen,
Yolanda Caban Roman, and has three step-children. Pet. App. 12a.
2. On August 8, 2011, DHS issued Mr. Roman-Vega a document entitled
"Notice to Appear." Pet. App. 6a; A.R. 921. The document did not specify the time or
place he was required to appear, stating instead that the hearing would be held "on
a date to be set at a time to be set." A.R. 921. The first master calendar hearing in
Mr. Roman-Vega's case was held on September 12, 2011. Pet. App. 7a. Based on
then-existing law, Mr. Roman-Vega conceded service of the notice to appear, and
indicated he would seek an adjustment of status based on his marriage to his Ms.
Caban. Pet. App. 7a.
On November 28, 2012, Mr. Roman-Vega again appeared and presented his
application for relief. A.R. 168, 519. On that same date, DHS indicated that it
intended to file a Form 1-261, Additional Charges of Inadmissibility/Deportability, by
the following hearing. A.R. 168. On July 2, 2018, almost six years later, after
multiple delays, DHS informed the immigration judge that the Form 1-261 had never
been filed. A.R. 208. Hearing this, the immigration judge advised Mr. Roman-Vega's
counsel to file a motion to terminate based on Pereira, 138 S. Ct. 2105. A.R. 211. On
July 3, 2018, DHS filed the Form 1-261, alleging new factual allegations and a new
29
charge of removability in lieu of those set forth in the original notice to appear. A.R.
919.
On July 2, 2018, the immigration judge prompted Mr. Roman-Vega's counsel
to file a motion to terminate proceedings in light of Pereira. A.R. 211-212. On August
16, 2018, Mr. Roman-Vega's counsel filed such a motion, arguing that the notice to
appear initiating the removal proceedings was defective. A.R. 211, 851-57, 845. The
immigration judge in fact agreed that, "a putative notice to appear that fails to
designate the time or place of the non-citizen's removal proceedings is not a notice to
appear under section 1229(a)," citing Pereira. A.R. 845 (cleaned up). However, the
immigration judge found that the BIA had "held otherwise" in Bermudez-Cota: that
a notice to appear "meets the requirements of [section 1229(a)], so long as a notice of
hearing specifying this information is later sent to the [non-citizen]." Id., citing
Bermudez-Cota, 27 I. & N. Dec. at 447.
The BIA upheld this determination, in reliance on Bermudez-Cota and
Karangithi for the proposition that "jurisdiction properly vests with the Immigration
Court when a respondent receives a separate hearing notice" with hearing time and
place information, even if not included in the initiating notice to appear. Pet. App.
3a.
The Ninth Circuit summarily dismissed in part and denied in part Mr. Roman-
Vega's petition for review. Pet. App. 2a. Concerning Mr. Roman-Vega's motion to
terminate, the court reasoned his arguments were "foreclosed by [Ninth Circuit]
30
precedent" in Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020). Pet. App.
la.
3. Were this court to hold that the defects in Mr. Roman-Vega's notice to
appear were of jurisdictional significance, the appropriate remedy would be
termination of his removal proceedings. See Arbaugh, 546 U.S. at 514 ("when a
federal court concludes that it lacks subject-matter jurisdiction, the court must
dismiss"); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011)
("Objections to subject-matter jurisdiction . . . may be raised at any time"). However,
even if this Court were to hold that the defects in the notice to appear were but a
"claim-processing" issue under the approach of the BIA and the Fourth, Fifth,
Seventh, Tenth, and Eleventh Circuits, Mr. Roman-Vega should and would have
prevailed on his August 2018 motion to terminate for the reasons elaborated below.
REASONS FOR GRANTING THE WRIT
I. The Court should grant certiorari to resolve important questions
regarding defects in the initiation of removal proceedings, and under
what analysis objections to the same should be analyzed.
The clear circuit conflict concerning the core questions presented in this case -
- what a notice to appear need contain to properly initiate removal proceedings, and
the analysis and ramifications of the government's reliance on defective notices to
initiate such proceedings -- cannot be resolved without this Court's intervention and
guidance. Indeed, at least one circuit has suggested that Niz-Chavez is a portent of
further decisions from this Court that may resolve the conflict. Maniar, 998 F.3d 235,
242, n.2.
31
1. There is a clear circuit conflict concerning the fundamental question of when
the immigration court's jurisdiction even vests. The First, Third, Eighth, and Ninth
Circuits have taken the position that jurisdiction vests in the immigration court upon
the filing of the notice to appear, whether or not it contains the time, date, or location
of the non-citizen's removal hearing. See, e.g., Bastide-Hernandez, 3 F.4th at 1196.
Similarly (at least as far as the fundamental question of when jurisdiction vests is
concerned), the BIA and the Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits
generally take the position that the content requirements for notices to appear are
mere "claim-processing" issues that do not impact jurisdiction. See, e.g., Matter of
Rosales Vargas, 27 I. & N. Dec. at 747.
However, the Second and Sixth Circuits take a fundamentally opposed
approach: "a [notice to appear] that omits information regarding the time and date of
the initial removal hearing is nevertheless adequate to vest jurisdiction in the
Immigration Court, at least so long as a notice of hearing specifying this
information is later sent to the alien." Banegas, 922 F.3d at 101 (emphasis
added). Under this conception, jurisdiction essentially retroactively vests in the
immigration court, so long as the non-citizen eventually receives notice of their
removal hearing. Also under this conception, in the interim period between the
issuance of the defective notice to appear and the subsequent notice of hearing, a
Schrodinger's cat situation is created, where the immigration court simultaneously
does and does not have jurisdiction, depending on whether a notice of hearing is later
issued.
32
The question of when a court obtains jurisdiction is an undisputedly important
foundational question. Without jurisdiction, the immigration court cannot take
affirmative action, and its only appropriate course is to dismiss the proceeding.
Larson, 337 U.S. at 689-90; Louisville & Nashville RR Co., 211 U.S. at 154. It would
be deeply anomalous for immigration courts located in different circuits to come to
different conclusions as to when their jurisdiction is triggered in otherwise identical
removal proceedings, simply by dint of where they are located. Particularly since the
question when jurisdiction vests with the immigration court imposes limitations on
a non-citizen's ability to seek other immigration relief. See, e.g., 8 C.F.R. § 1003.14(b)
("When an Immigration Judge has jurisdiction over an underlying proceeding, sole
jurisdiction over applications for asylum shall lie with the Immigration Judge").
This conflict cannot be resolved without this Court's intervention, given the
fundamental disagreement between these mutually exclusive conceptions of
jurisdiction. There is no indication that the circuits utilizing either the majority or
minority approach to analyze when jurisdiction vests are ready reverse their own
published authority on the point. It is inevitable that this Court will have to
eventually definitively weigh in on this fundamental question of when the jurisdiction
of the immigration courts is invoked.
2. This fundamental circuit split then leads to another: whether proceedings
initiated by a defective notice to appear should be terminated, and under what
analysis. The Seventh Circuit has held and then recently re-affirmed its position that
section 1229(a) controls this analysis, not the government's regulations at sections
33
1003.14 and 1003.15. It held that section 1229(a)(1)'s requirements "are mandatory
claims-processing rules for which noncompliance will result in relief upon a timely
objection." De La Rosa, 2 F.4th at 687, citing Ortiz-Santiago, 924 F.3d 956. It appears
to stand alone in this regard, despite the Seventh Circuit's assessment that this Court
"recently ratified [this] position" in Niz-Chavez, via its holding that "section 1229(a)
requires a single, complete Notice to Appear . . . with all the required information"
and that removal proceedings initiated by a defective notice to appear should be
terminated upon timely objection. Id. at 687-88.
The First, Third, Eighth, and Ninth Circuits have answered this question
differently: defects in notices to appear are not an impediment to the immigration
courts' exercise of its jurisdiction and ability to act; pursuant to sections 1003.14 and
1003.15 of the regulations and the BIA's own interpretation of them, notices to appear
lacking time and/or place information are not defective. See, e.g., Karingithi, 9 F.3d
at 1161-62 and Aguilar Fermin, 958 F.3d at 895.
BIA and the Fourth, Fifth, Tenth, and Eleventh Circuits have joined the
Seventh Circuit, generally holding that defects in notices to appear are subject to
challenge as "claim-processing" defects. This approach is exemplified by the Seventh
Circuit's recent decision in De La Rosa, wherein the court held that a non-citizen who
raises a timely objection a notice to appear that does not comply with section 1229(a)
should be granted, whether or not the error was prejudicial. De La Rosa, 2 F.4th at
688. However, it is worth noting that even courts utilizing the "claim-processing"
approach are divided as to whether a non-citizen must demonstrate prejudice in order
34
to obtain relief (versus whether a timely objection is all that is required). See Matter
of Rosales Vargas, 27 I. & N. Dec. at 753-54.
This conflict yields even more glaringly anomalous results. Under the
approach of the First, Third, Eighth, and Ninth Circuits, a non-citizen's objection
regarding the lack of time and place information in a notice to appear stands to be
met with the response that such missing information is not even a defect, that the
immigration court can still act, and that circuit precedent dictates rejection of the
objection. A.R. 845; Pet. App. 2a & 3a-4a. By contrast, under the BIA and the Fourth,
Fifth, Seventh, Tenth, and Eleventh Circuits' approach, a non-citizen's objection to
the government's non-compliance with notice to appear content requirements w///
result in relief, provided the objection is both timely and prejudice is shown (but
again, the Seventh Circuit has made clear that an objection need only be timely to
warrant relief). De La Rosa, 2 F.4th at 688.
This conflict yields situations where one similarly-situated non-citizen's
removal proceedings would be terminated simply upon timely objection, another
would have to make a timely objection and show prejudice, and yet another would
have no grounds to object at all, purely based upon where their removal proceedings
were initiated. The analysis and resolution of objections to defects in the initiation
of such a "grave legal proceeding" as the removal of a non-citizen should not turn on
such arbitrary considerations as in which circuit the proceedings arise. Niz-Chavez,
141 S. Ct. at 1482.
35
II. Resolution of this issue is particularly important because the BIA and
the Courts of Appeals' approaches to this issue are based upon a
misconception regarding the jurisdictional impact of defective
notices to appear.
The circuit conflict discussed above is particularly critical because it stems
from fundamental differences (and in fact, misconceptions) regarding when and
whether a purported notice to appear confers jurisdiction on the immigration court.
1. A notice to appear that does not comply with section 1229(a) does not confer
jurisdiction on the immigration court. As this Court has held, the notice to appear is
the "case-initiating" document in removal proceedings. Niz-Chavez, 141 S. Ct. at
1478, 1482. This document "must contain" the information set forth in section
1229(a)(1) in order to constitute a valid notice to appear, and must be self-contained.
Id. at 1482, n. 2. The very structure of section 1229(a) confirms that a compliant
notice to appear is required to appropriately initiate removal proceedings: it is only
after DHS properly initiates the proceeding by filing a "compliant notice to appear"
that the non-citizen may then be issued a supplemental notice re-scheduling the
hearing, if needed. Id. at 1485, citing 8 U.S.C. § 1229(a)(2).
The BIA has acknowledged that DHS's filing of a notice to appear with the
immigration court marks a critical juncture: with the filing of the notice to appear,
"jurisdiction vests" with the immigration court. "The language of 8 C.F.R. §§ 239.2
and 1239.2 marks a clear boundary between the time prior to commencement of
proceedings, where a DHS officer has decisive power to cancel proceedings, and the
36
time following commencement, where the officer merely has the privilege to move for
dismissal of proceedings." Matter of Andrade and Carbajal Ayala, 27 I. & N. Dec. at
558. Once a case is properly initiated and jurisdiction vests, decision-making
authority is conferred upon the immigration court, and jurisdiction cannot simply be
wrested away by DHS, even upon an unopposed request. Id.
Niz-Chavez makes clear that this "clear boundary" before commencement of
removal proceedings pursuant to section 1229a cannot be crossed by a notice to
appear that does not comply with section 1229(a). This is confirmed by the very
structure of these statutes: the statutory definition of a "notice to appear" appears in
section 1229, which is entitled "Initiation of Removal Proceedings." Section 1229a is
itself entitled, "Removal Proceedings." Any other holding would do violence to the
clear Congressional mandate that notices to appear contain the elements required by
section 1229(a), and would also do violence to the distinction between DHS and the
immigration courts, which are (and for due process reasons must be) separately
constituted governmental apparatuses.
2. Even if the Court were to hold that the immigration courts' jurisdiction is
dictated by regulation, not by section 1229(a), the same result obtains. Section
1003.14(a) of the regulations provide that jurisdiction vests, and proceedings before
an immigration judge commence, upon the filing of a notice to appear. By
contraposition, if a "notice to appear" is not filed, no jurisdiction vests, and no
proceeding has commenced. As this Court confirmed in Niz-Chavez, "each case-
initiating document [i.e., a notice to appear] must contain the catalogue of
37
information Congress has said the defendant or respondent is entitled to receive in
that document"; otherwise, the document is not a notice to appear. Niz-Chavez, 141
S. Ct. 1482, n. 2 (emphasis added). By the plain language of the regulation, the
immigration court does not have jurisdiction unless the removal proceeding is
commenced with a valid notice to appear containing all elements required by section
1229(a).
The government has attempted to circumvent this clear statutory mandate by
relying on portions of the regulations that purport to eliminate the components
required for a valid notice to appear. Section 1003.15(b) of the regulations is missing
section 1229(a)'s statutory requirement that a valid notice to appear shall include
"the time and place at which [removal] proceedings will be held. Section 1003.18(b)
then purports to provide that the government need only include "time, place and date
of the initial removal hearing" in the notice to appear "where practicable." These
regulations are the very types of "self-serving regulations" that advance
administrative convenience at the expense of statutory requirements, which this
Court has consistently rejected. See Niz-Chavez, 141 S. Ct. 1485 and Pereira, 138 S.
Ct. at 2118. The government cannot implement regulations that derogate from
Congress's clear statutory mandates.
Nor can the government rely on its own unreasonable interpretations of its
regulations to suit its aims. Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 95
(1995); Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150-
51 (1991) (agency interpretation of regulations only ever deferred to where
38
"reasonable" and "so long as the interpretation sensibly conforms to the purpose and
wording of the regulations"). The BIA's own regulations describe the charging
document required to initiate removal proceedings as a "Notice to Appear," 8 C.F.R.
§ 1003.13 (emphasis added) and jurisdiction vests upon its filing with the
immigration court. 8 C.F.R. § 1003.14(a). The BIA has no reasonable basis to
differently interpret its regulations regarding what constitutes a "notice to appear"
when this Court has already held that a document is not a notice to appear unless it
contains the elements required by section 1229(a), including time and place
information.
3. Some have raised concerns that the Court's adoption of the jurisdiction
argument would overwhelm the agencies and/or the courts with claims by non-
citizens and others to reopen otherwise final removal proceedings. See Lonny
Hoffman, Pereira's Aftershocks, 61 WILLIAM AND MARY L. REV. 1, 36 (2018). However,
this Court has observed that, "Unlawful acts, performed long enough and with
sufficient vigor, are never enough to amend the law. To hold otherwise would be to
elevate the most brazen and longstanding injustices over the law, both rewarding
wrong and failing those in the right." McGirt v. Oklahoma, 140 S. Ct. 2452, 2482
(2020). If non-citizens have been the subject of removal proceedings with
jurisdictional defects, then objections to such proceedings should be considered on
their merits, and the appropriate remedy implemented.
Existing mechanisms are already well-suited to consider such objections,
whether they come in the form of discretionary motions to reopen removal
39
proceedings (Kucana v. Holder, 558 U.S. 233, 242 (2010)) or via collateral attacks to
deportation orders pursuant to 8 U.S.C. § 1326(d), which are subject to significant
limitations and are strictly circumscribed. See United States v. El Shami, 434 F.3d
659, 664 (4th Cir. 2005). EOIR or the BIA could also use their authority to issue
regulations for the orderly consideration of such objections. See Amicus Brief of the
University of Houston Law Center Immigration Clinic Responding to BIA Amicus
Invitation No. 21-20-07, at 9-10.
III. This case is a clean vehicle to resolve the foregoing circuit conflict and
clarify the proper analysis of defective notices to appear.
1. As to the jurisdictional issue, Mr. Roman-Vega's case is clearly a clean
vehicle. If the immigration court never obtained jurisdiction over Mr. Roman-Vega's
removal proceedings, an objection on those grounds "may be raised at any time" and
should be sustained. Henderson, 562 U.S. at 435; see also Louisville & Nashville RR
Co., 211 U.S. at 150.
2. Even if this Court were to hold that defects in a notice to appear were not a
jurisdictional defect, but are rather a "claim-processing" issue, Mr. Roman-Vega's
case is still a clean vehicle. Despite the defects in the notice to appear issued to Mr.
Roman-Vega in 2011 and upon which his removal proceedings were initiated, he
appeared at the subsequently scheduled hearing held on September 12, 2011,
scheduled pursuant to a separate notice of hearing. Pet. App. 7a; A.R. 916. Given
this Court's decision in Pereira had not yet been handed down, the law was "quite
settled that DHS need not put a date certain on the Notice to Appear in order to make
40
that document effective." Pereira, 138 S. Ct. at 210 (cleaned up); see Popa v. Holder,
571 F.3d 890, 896 (9th Cir. 2009).
Mr. Roman-Vega timely objected to his notice to appear. He could not have
moved to terminate his removal proceeding pursuant to Pereira until that decision
was handed down, and the state of the law was such that there was no indication that
an objection regarding the defect in Mr. Roman-Vega's notice to appear was
warranted in 2011, when his proceedings were first initiated. Nor could Mr. Roman-
Vega have reasonably foreseen this Court's pronouncements in Niz-Chavez that
notices to appear "must contain" the information set forth in section 1229(a)(1) in
order to constitute a valid notice to appear, and cannot be supplemented by a later
notice. 141 S. Ct. at 1482, n. 2. See Kirklin v. United States, 883 F.3d 993, 997 (7th
Cir. 2018) (in context of effective assistance of counsel, attorney "not require[d] to
anticipate every eventual change in the law" and it is reasonable to assume existing
precedent will be followed); Henderson v. United States, 568 U.S. 266, 276 (2013) (a
court must generally apply the law in effect at the time its decision is rendered).
When considering Mr. Roman-Vega's motion to terminate, the immigration
court did not consider (and based on existing precedent did not have occasion to
consider) whether the objection should have been sustained under a "claim-
processing" analysis. See Pet. App. 29a. The immigration court did not consider the
timeliness of the objection.5 Id.; see De La Rosa, 2 F.4th at 687. Since neither the
Timeliness would apparently be the only valid inquiry, given that, "[b]y definition, mandatory claims-processing rules . . . are not subject to harmless-error analysis." Manrique v. U.S., 137 S. Ct. 1266,1274 (2017).
41
immigration court nor the BIA has passed upon that factual issue, even if a "claim-
processing' approach applies, Mr. Roman-Vega's case should still be reversed and
remanded for consideration of the timeliness of his objection. Gonzales v. Thomas,
547 U.S. 183, 186 (2006).
* * *
The instant case is the product of the government's conscious, systematic
choice to ignore the fundamental requirement to initiate a removal proceeding: filling
out and filing a pre-printed form with the time and place of the hearing where the
non-citizen's fate will be decided. Rather than acknowledge and comply with
Congress's statutory requirements, the government has chosen to attempt to
minimize its obligations via self-serving regulation. That is simply not permitted.
The Court should therefore grant this petition, provide guidance on how these notice
to appear defects should be analyzed, and what the consequences for the defects
should be.
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
42
CONCLUSION
Mr. Roman-Vega's petition for a writ of certiorari should be granted.
Monica Eav GlickenFraser Donald MuirPUBLIC LAW CENTER601 E. Civic Center Drive WestSanta Ana, CA [email protected]: (714) 541-1010
Respectf lly submitted,
By:
on Moberly CarusoCounsel of Record
haia Araghi7/pi NEWMEYER & DILLION LLP895 Dove Street, Fifth FloorNewport Beach, California 92660jason.caruso@ndlicomTelephone: (949) 854-7000
Counsel for Petitioner
August 27, 2021
43
la
APPENDIX A
Case No. 19-71743
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
ERICK ADRIAN ROMAN-VEGA
Petitioner,
v.
ROBERT M. WILKINSON, Acting Attorney General,
Respondent.
ORDER
FILED: April 1, 2021MOLLY C. DWYER, Clerk
BEFORE: M. SMITH, BADE, and BUMATAY, Circuit Judges.
Erick Adrian Roman-Vega seeks review of the Board of Immigration Appeals'("BIA") order denying termination and affirming the immigration judge's denial ofadjustment of status as a matter of discretion.'
We review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785,791-92 (9th Cir. 2005).
Petitioner's contention that the immigration judge lacked jurisdiction overhis proceedings is foreclosed by our precedent. See Aguilar Fermin v. Barr, 958F.3d887, 895 (9th Cir. 2020) ("the lack of time, date, and place in the NTA sent to[petitioner] did not deprive the immigration court of jurisdiction over her case").
We lack jurisdiction to review the discretionary denial of adjustment ofstatus. See 8 U.S.C. § 1252(a)(2)(B)(i); Torres-Valdivias v. Lynch, 786 F.3d 1147,1151 (9th Cir. 2015). The petition does not raise a colorable legal or constitutionalclaim as to the denial of adjustment of status over which we retain jurisdiction. See
I No judge has requested a vote to hear this case initially en banc within the time allowed by GO5.2(a). The petition for initial hearing en banc (Docket Entry No. 12) is therefore denied.
2a
8 U.S.C. § 1252(a)(2)(D); Bazua-Cota v. Gonzales, 466 F.3d 747, 748-49 (9th Cir.2006).
The motion to dismiss this petition for review in part (Docket Entry No. 8) isgranted. The motion for summary disposition in part (Docket Entry No. 8) isgranted because the questions raised are so insubstantial as not to justify furtherproceedings. See 9th Cir. R. 3-6(a) (stating standard for summary disposition); seealso United States v. Hooton, 693 F.2d 857 (9th Cir. 1982).
The temporary stay of removal remains in place until issuance of themandate. The motion for a stay of removal is otherwise denied. All other pendingmotions are denied as moot.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3a
APPENDIX B
U.S. Department of Justice Decision of the Board of Immigration AppealsExecutive Offices for Immigration Review
Falls Church, Virginia 22041
File: A200-977-579 — Los Angeles, CA
Date: Jun. 13, 2019
In re: Erick Adrian ROMAN-VEGA a.k.a. Erick Roman a.k.a. Erick Vega
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Erika Vejar, Esquire
ON BEHALF OF DHS: Tracy NguyenAssistant Chief Counsel
APPLICATION: Termination; adjustment of statement under section 245(a) ofthe Act
The respondent appeals from the Immigration Judge's January 9, 2019,decision denying his application for adjustment of status under section 245(a) of theImmigration and Nationality Act, 8 U.S.C. § 1255(a). The respondent argues thatjurisdiction is not proper in this case and, in the alternative, that the ImmigrationJudge erred in denying his application for adjustment of status. The respondent'sappeal will be dismissed.
We review the findings of fact, including the determination of credibility,made by the Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. §1003.1 (d)(3)(i). We review all other issues, including issues of law, discretion, orjudgment, under a de novo standard. 8 C.F.R. § 1003.1(d)(3)(ii).
We conclude that jurisdiction is proper in this case. The respondent arguesthat proceedings should be terminated based on in Pereira v. Sessions, 138 S. Ct.2105 (2018), because the Notice to Appear (Ex. 1) in his case did not specify the dateand time of his initial removal hearing. See Respondent's Br. at 16-23. However, theBoard and the United States Court of Appeals for the Ninth Circuit, in whosejurisdiction this case arises, have held that jurisdiction properly vests with theImmigration Court when a respondent receives a separate hearing notice consistent
4a
with the regulation contained at 8 C.F.R. § 1003.18(b). Karangithi v. Whitaker, 913F.3d 1158 (9th Cir. 2019); Matter of Bermudez-Cota, 27 I&N Dec. 441,444 (BIA2018). The record reflects that, subsequent to service of the Notice to Appear, therespondent received a hearing notice that informed him of the date, time, andlocation of removal proceedings. Furthermore, the respondent appeared inimmigration court. We are not persuaded that Karangithi v. Whitaker and Matter ofBermudez-Cota were wrongly decided and we conclude that jurisdiction is proper inthis case.
We adopt and affirm the Immigration Judge's denial of the respondent'sapplication for adjustment of status as a matter of discretion (IJ at 15-19). SeeMatter of Arai, 13 I&N Dec. 494 (BIA 1970); see also Matter of Marin, 16 I&N Dec.581 (BIA 1978) (discussing factors relevant to a discretionary determination). Theequities presented by the respondent do not outweigh the negative factors in thiscase (IJ at 19). The respondent concedes that he has been convicted of DrivingUnder the Influence four times and does not dispute the Immigration Judge'sfindings concerning these offenses (IJ at 7-13; Respondent's Br. at 12). Therespondent's most recent conviction was incurred in 2015 after the respondent hadbeen released from custody on bond during the pendency of these removalproceedings (IJ at 17). The respondent's blood-alcohol content was measured at .21%, significantly in excess of the legal limit (IJ at 17). While the respondent hastaken steps towards rehabilitation, and presented testimony that he has been soberfor 4 years, the Immigration Judge also noted that the respondent previouslycompleted alcohol treatment and rehabilitation programs before again drivingunder the influence (IJ at 16-17). Further, notwithstanding the respondent'sassurances as to future conduct, the respondent faces a pending criminal charge foroperating a vehicle without a required breathalyzer ignition interlock device (IJ at17; Ex. 12 at 58). We have considered the respondent's arguments concerning thefavorable factors presented. See Respondent's Br. at 12-16. However, we concludethat the equities presented in this case do not outweigh the respondent's dangerousand repetitive drinking and driving crimes. See Matter of Siniauskas, 27 I&N Dec.207 (BIA 2018) (discussing the seriousness of drunk driving); Matter of Arai, 13I&N Dec. 494, 496 (BIA 1970) (stating that an applicant for adjustment of statusmay need to demonstrate unusual or even outstanding equities where negativefactors are present). Accordingly, we affirm the denial of the respondent'sapplication for adjustment of status.
We additionally adopt and affirm the Immigration Judge's discretionarydenial of voluntary departure under section 240B(b) of the Act, 8 U.S.C. §1229c(b)(IJ at 19). See Maller of Arguelles, 22 I&N Dec. 811, 817 (BIA 1999); 8C.F.R. § 1240.26(c). The Immigration Judge appropriately concluded that adiscretionary grant of voluntary departure is not warranted in this case as theequities presented are outweighed by the respondent's criminal record.
5a
ORDER: The respondent's appeal is dismissed.
FOR THE BOARD
6a
APPENDIX C
UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURTLOS ANGELES, CALIFORNIA
File: A205-000-967
In the Matter of:
ROMAN-VEGA, Erick Adrian
Respondent.
DETAINED
IN REMOVAL PROCEEDINGS
CHARGES: Section 237(a)(1)(B) of the Immigration and Nationality Act (INA), asamended: after admission as a nonimmigrant under section 101 (a)(l 5)of the INA, remained in the United States for a time longer thanpermitted
APPLICATIONS: Adjustment of status; Voluntary Departure
ON BEHALF OF THE RESPONDENT: Anahid Chalikian, EsquireLaw Office of Alex Galvez510 West 6th Street, Suite 410Los Angeles, California 90014
ON BEHALF OF THE DEPARTMENT: Tracy Nguyen, EsquireU.S. Department of Homeland Security300 North Los Angeles Street, Suite8108Los Angeles, California 90012
DECISION AND ORDERS OF THE IMMIGRATION JUDGE
I. Procedural History
The Respondent is a thirty-year-old male, native and citizen of Mexico. OnAugust 8, 2011, the U.S. Department of Homeland Security (Department)personally served the Respondent with a Form 1-862, Notice to Appear (NTA). Exh.1. Therein, the Department alleged that the Respondent entered the United Statesat an unknown place on an unknown date, and was not then admitted or paroledafter inspection by an Inspection Officer. Id. Based on these factual allegations, theDepartment charged the Respondent with inadmissibility pursuant to section
7a
212(a)(6)(A)(i) of the INA. Id. Jurisdiction vested and removal proceedingscommenced when the Department filed the NT A with the Lancaster ImmigrationCourt on August 11, 2011, 8 C.F.R. § 1003.14(a) (2011).
The Respondent's first master calendar hearing was held on September 12,2011. On that date, the Respondent, through prior counsel, Alexander Morales,conceded service of the NTA, admitted allegations 1 and 2, denied allegations 3 and4, and denied the charge of inadmissibility. With respect to allegations 3 and 4, theRespondent alleged that he legally entered the United States on August 18, 2006 atthe San Ysidro, California port of entry. The Respondent indicated that he was inthe process of getting a copy of his Form 1-94, Arrival/Departure Record, and thathe would be seeking adjustment of status based on, a Form 1-130, Petition for AlienRelative (Form 1-130), filed on his behalf by his U.S. citizen wife. The Court advisedthe Respondent to consider requesting voluntary departure in the alternative andcontinued the matter to allow the Respondent to establish his time, place andmanner of entry.
On October 21, 2019, Mr. Morales, filed a motion to withdraw as the attorneyof record therein alleging that the Respondent, through his mother, RoxanaMorales, had dismissed him as the attorney of record. See Att'y's Mot (Oct.21,2011). On October 24, 2011, the Court granted Mr. Morales' motion. See IJ Order(Oct. 24, 2011).
On November 9, 2011, the Respondent appeared before the Court with newcounsel, Erika Roman, and requested that venue be changed from the LancasterImmigration Court to the Los Angeles Immigration Court since his family andwitnesses were in Santa Ana, California. The Court advised the Respondent'scounsel to make a change of venue motion in writing and continued the matter toallow her to file evidence of the Respondent's alleged legal entry and astatus update on the pending Form 1-130 petition.
On December 5, 2011, Immigration Judge David Burke granted theRespondent bond in the amount of 86,000, but required that venue remain at theLancaster Immigration Court. After the Respondent was released from immigrationcustody, he and Ms. Roman failed to appear at three consecutive hearings. At ahearing on March 5, 2012, the Respondent's counsel appeared before the Court andexplained that the Respondent was not present because the he was inrehabilitation, and it was her understanding that she only needed to update theCourt. Despite the Court's prior warnings, the Court did not order the Respondentremoved in abstentia. The Court granted another continuance, and requested proofthat the Respondent was in a residential rehabilitation program.
At a hearing on March 21, 2012, Immigration Judge Burke granted theRespondent's motion to transfer venue to the Los Angeles Immigration Court. On
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this date, the Court also observed that removability remained contested and thatremovability would need to be addressed by the Los Angeles Immigration Court.
On November 28, 2012, the Respondent appeared before Immigration Judge
Jan D. Latimore at the Los Angeles Immigration Court with new counsel, DavidFagen. On this date, the Respondent, through counsel submitted proof of hisapproved Form 1-130 petition and a Form 1-485, Application to Register Permanent
Residence or Adjust Status (Form 1-485). Additionally, the Department indicated
that it would file a Form 1-261, Additional Charges of Inadmisibility/Deportability,
by the following hearing. The Court requested an updated criminal history record
and continued the matter.
At a hearing on February 13, 2015, the Respondent, through counsel,
explained that he had a pending criminal charge for which he could serve jail time if
convicted at his pre-trial hearing in March. As such, the Court continued the matter
for an update on the status of his criminal proceedings. On September 14, 2015, the
Respondent's counsel informed the Court that Respondent was in criminal custody
and that his release date was September 30, 2015.
On December 15, 2016, the Court noted that the Respondent's pending
criminal charge had resulted in a felony conviction for driving under the influence
(DUI) for which he was given five years probation. Accordingly, Immigration Judge
Latimore indicated that she would not make a decision on the Respondent's removal
proceedings until November 2018, and reset the matter to December 13, 2017, for a
status update. On December 13, 2017, the Court set the matter for a merits hearing
and observed that the Respondent had a traffic ticket he did not pay and an
outstanding warrant.
On July 2, 2018, the Respondent failed to appear, and the Court proceeded in
abstentia, with the Respondent's counsel present. The Court inquired about
removability and noted that there was a border crossing card that had been
submitted. Exh. 2, Tab B. The Respondent's counsel indicated that he did not want
to plea for the Respondent since he was allegedly in the building. The Department
informed the Court that a Form 1-261 had not in fact been previously filed. An hour
and half after the Respondent's scheduled hearing, the Respondent appeared before
the Court. The Court told the Respondent that his tardiness was unacceptable and
advised the Respondent's counsel that the Court would likely grant a motion to
withdraw should he decide to file one. The Court additionally advised the
Respondent's counsel that he had until July 20, 2018, to file motion to terminate
based on Pereira v. Sessions, 138 S.Ct. 2105 (2018). On July 3, 2018, the
Department filed a Form 1-261, therein, alleging new factual allegations and a new
charge of removability in lieu of those set forth in the original charging document.
Exh. 1 A.
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Prior to the Respondent's scheduled hearing, he was retaken intoimmigration custody. Due to the Respondent's change of custody status, theRespondent's matter was transferred to the Los Angeles Detained ImmigrationCourt. On September 18, 2018, he appeared before Immigration Judge Nathan Ainawith new counsel, Admund Anciano. The Court observed that a motion to substitutecounsel had been filed by attorney Alex Galvez. The Respondent explained thatErika Roman had been his first attorney, but David Fagen had been handling hiscase for the past five years. Though his mother had hired Mr. Galvez, theRespondent indicated that he wished to continue being represented by Mr. Fagen.Based on the Respondent's testimony, the Court denied the motion, but allowed Mr.Galvez to represent the Respondent on behalf of Mr. Fagen that day. On this date,Immigration Judge Aina continued the matter and informed the Respondent thathe had to recuse himself since he has appeared as a trial attorney for theDepartment when his case was before Immigration Judge Burke.
On September 25, 2018, Mr. Fagen filed a motion to withdraw as counsel dueto the Respondent's lack-of cooperation over the past four years and the appearanceof another attorney on his behalf. See Att'y's Mot (Sept. 25, 2018). On the samedate, the Court found that good cause had been established and granted Mr. Fagen's motion to withdraw. IJ Order (Sept. 25, 2018).
On September 26, 2018, the Respondent appeared pro se before theundersigned immigration judge. 8 C.F.R. § 1240.1(b). After review of the record, theCourt observed that Erika Roman had never withdrawn as the attorney of recordand had not been substituted by another attorney. The Court continued the matterto allow the Respondent time to contact Ms. Roman and/or consult with anotherattorney. On October 2, 2018, Ms. Erika Roman filed a motion to withdraw ascounsel alleging that she had been substituted by the Respondent's prior counsel.See Att'y's Mot (Oct. 2, 2018). Finding, that good cause had been established, theCourt granted Mrs. Romans motion. IJ Order (Oct. 2, 2018).
At a hearing on October 3, 2018, the Respondent appeared before the courtand requested a continuance. The Respondent's sister explained that her family hadretained the services of Alex Galvez and they did not know why Mr. Galvez hadfailed to appear. The Court reset the matter to allow the Respondent and his familytime to contact Mr. Galvez, and advised the Respondent that it was the lastcontinuance.
On October 23, 2018, the Respondent, through counsel, entered pleadings.The Respondent noted that the Form 1-261 had his name backwards. After theCourt made the pen and ink change, the Respondent admitted factual allegation 3and 4 and conceded the new charge of removability. Exh. 1A. Based on the
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Respondent's admissions and concessions, the Court sustained the charge ofremovability.'
On October 23, 2018, the Department requested that the Respondent submita new medical exam, and submitted the United States Citizenship and ImmigrationServices' (USCIS) policy on reexamination in support of its request. Exh. 8. TheDepartment noted that the Respondent's medical report did not indicate whetherthe civil surgeon had been made aware of and considered the Respondent's criminalhistory, specifically his DUI convictions. The Court observed that the USCISmanual was not binding on the Court, nevertheless because the Respondentadmitted that he had not disclosed all of his arrests to the civil surgeon, the Courtrequested a reexamination.
On October 23, 2018, and November 30, 2018, the Respondent testified insupport of his application for relief. On November 2, 2018, the Court also heardtestimony from the Respondent's joint sponsor, Carmelo Martinez Achotla. OnDecember 11, 2018, the Respondent's mother, Roxana Roman, his sister, AbigailRoman, and his friend, Alex Murrillo, testified on his behalf. Finally, on December18, 2018, the Court took testimony from the Respondent's wife, Yolanda Caban. TheComt heard and considered testimony in support of the Respondent's application.Whether specifically mentioned or not, the Court has considered all testimony andevidence contained in the record to reach its decision.
On December, 18, 2018, the Respondent, through counsel, informed the Courtthat while his medical reexamination had been completed since November, hisattorney and family members had been unsuccessful in obtaining the report fromthe civil surgeon despite repeated efforts. Accordingly, the Respondent filed amotion for subpoena deuces tecum, which the Court granted. See Resp't's Mot. forSubpoena Deuces Tecum (Dec. 18, 2018). At a hearing on December 21, 2018, theRespondent filed a medical report with an attached letter from the civil surgeon.Exh. 15. The Court observed that the civil surgeon's letter was meant to serve as anaddendum, which indicated that upon reexamination the civil surgeon haddetermined that the Respondent has a Class B disorder. Id. Given the civilsurgeon's amended finding, the Court concluded that the Respondent was statutoryeligible for adjustment of status.
For the following reasons, the Court will DENY the Respondent's applicationfor adjustment of status and for voluntary departure.
The Court notes that a country of removal was never designated in this matter. Given theRespondent's admissions, the Court directs Mexico as the country of removal.
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II. Exhibits
Exhibit 1: Notice to Appear (Form 1-862)
Exhibit 1A:
Exhibit 22:
Exhibit 3:
Exhibit 4:
Exhibit 5:
Exhibit 6:
Exhibit 7:
Exhibit 8:
Exhibit 9:
Exhibit 10:
Exhibit 11:
Exhibit 12:
Exhibit 13:
Exhibit 143:
Exhibit 15:
Additional Charges of Inadmissibility/Deportability (FormI-261)
Application to Register Permanent Residence or AdjustStatus (Form 1-485), and supporting documents, Tabs A-Z
Criminal Conviction Records, Tab D
Supplemental Documents, Tab E
Department's submission of documents on the impact ofdriving under the influence, Tabs A-E
Supplemental documents, Tabs A-F
Report of Medical Examination and Vaccination Record(USCIS Form 1693)
United States Citizenship and Immigration Services'(USCIS) Policy Manual excerpt
Form I-485 fee receipt
FBI Criminal History Record
Incident report for case number 06-203448
Department's supplemental documents, Tabs F-J
Incident report for case number 10-202436
Supplemental documents, Tab G
2 The Court notes that a letterVictory Outreach was markedMarch 21, 2012. This letter wi3 The Court notes that exhibit
Report of Medical Examination and Vaccination Record(USCIS Form 1-693), and attached letter
written by Alfonso Ramirez discussing Respondent's progress atand admitted as "Exhibit 2" by Immigration Judge David Burke on11 be made part of Tab D of this exhibit.14 was marked for identification but was never admitted.
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III. Summary of Testimony
A. The Respondent's Testimony
The following is a summary of the Respondent's testimony, given under oathon October 23, 2018, and November 30, 2018. The Respondent is thirty years old.He came to the United States on September 7, 1997, and has not left since. Heattended school in the United States and graduated from Dana Hills High School inDana Point, California in 2006. The Respondent also completed two years of collegeat Saddleback College. He explained that he put college "on pause," but was close toobtaining his associates degree. The Respondent was working at Domino's Pizzawhile he was going to college. Prior to being taken into immigration custody, theRespondent was working for his father's painting business. He testified that hehelped his father prepare the houses and buildings he was going to paint. TheRespondent has worked with his father on and off for ten years. He has worked forhis father full-time for a year.
The Respondent is married to a United States citizen, Yolanda CabanRoman. He has three step-children, ages twenty-five, twenty-two, and twenty. TheRespondent and Yolanda got married June 3, 2011. At the time, his oldest step-child was eighteen or nineteen years old. The Respondent testified that he livedwith two of his step-children: Irving Torrez and Neysha Caban. He indicated thathe had a great relationship with them, especially Irving because as males theybonded more. The Respondent stated that he was "very disciplinary" with his step-children and that they respected him.
According to the Respondent, Irving is currently working at a medical facilityand has also been working full-time at "Pollo Loco" for the past three years. Irvingstill lives with the Respondent, however, because Irving commutes between OrangeCounty and Riverside County for work, he sometimes stays with a friend inRiverside County. The Respondent further testified that when Irving was seventeenyears old, he took him to get his driver license. The Respondent also bought a carfrom his father and transferred it to Irving for him to get to school and work.
The Respondent's mother became a lawful permanent resident (LPR) thisyear. He explained that his mother is his "world" and his best friend. She knows allhis secrets and has guided him through his ups and downs. The Respondent wishesthat he would have listened to his mother sooner. He knows that his mother suffersseeing him in detention, but he hopes to give her "peace" soon.
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The Respondent's older brother is two years older than him and is a DACAstudent.4 He also has a younger brother and a younger sister who are United Statescitizens. The Respondent described his sister Abigail, as his "angel." Abigail iscurrently a student at the University Of California, Riverside (UCR) and wants tobecome a doctor. The Respondent further testified that growing up, Abigail calledhim "the favorite brother" because he always listened to her and was always thereto comfort her when his parents were "a little too rough." Now that Abigail is incollege, the Respondent helped her by buying her a laptop. He also bought her aniPhone and an iPad. Abigail recently thanked the Respondent because she realizedthat he had gotten her all of her electronics. The Respondent stated that he woulddo anything for his sister in order to "get her where she wants to go."
The Respondent believes that because of him, his brothers have learned tonot drink and drive and to not associate with a "bad crowd." He has spoken to hisbrothers about drinking and driving and about his best friend's wife, Bani Duarte,who was recently incarcerated for driving under the influence and killing threeteenagers. The Respondent is thankful that he is alive and that he did not killanybody. He expressed guilt for not being able to teach his best friend's wife "howgood sobriety is." The Respondent, however, is happy that he will be part of his bestfriend's life and part of his children's life.
During direct examination, the Respondent acknowledged that he has fourconvictions for driving under the influence (DUI). He was arrested for his fourthDUI on November 12, 2014. He testified that he has been sober since that date. TheRespondent explained that his last DUI finally opened his eyes and he realized thatthe first step was admitting to himself and his family that he was "powerless overalcohol." After his last DUI conviction, the Respondent attended alcoholicanonymous (AA) meetings at Mariners Church five to six times a week for about ayear. In December 2016, the Respondent began working full-time and could onlyattend AA meetings' two to three times a week. When asked what he has learnedfrom attending AA meetings, the Respondent stated "happiness and accountability."He has also learned that drugs and alcohol "are a disease" that "work against you."The last AA meeting the Respondent attended outside detention was on August 1,2018.
The Respondent explained that because a fourth DUI is automatically afelony, his driver license got revoked for four years. Nevertheless, he had no issuesgetting to his AA meetings because they took place around the corner from hishouse. The Respondent also explained that due to his participation in AA meetings,an outpatient program, and the other programs ordered by the criminal judge, hisfour-year license revocation was brought down to one year. He indicated that thecriminal judge was satisfied with his progress and called his case "a very special
The Court notes that DACA is an acronym for Deferred. Action for Childhood Arrivals.
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case." The Respondent was able to get his driver license reinstated in December2016. Since that date, he has had a breathalyzer installed in his vehicle. However,he purchased a new vehicle and because it did not have license plate, he was pulledover by police. According to the Respondent, the criminal judge was "sad" to see himin custody but was "proud" to see that he was still sober. The Respondent furthertestified that he and the criminal judge continue to have a "close bond."
During cross examination, the Respondent was questioned about his criminalrecord. The Respondent testified that he first obtained his driver license in August2006, a couple of months after his eighteenth birthday. He was first arrested onOctober 18, 2006, two months after getting his driver license. He explained that heand a friend were drinking at his house and he went out to buy cigarettes. TheRespondent acknowledged that at the time he was under the legal drinking age.When asked how much he had to drink, the Respondent stated, "Well now that Ithink about it that is when the disease started. I started heavy." The Respondentrecalled that he and his friend were drinking a bottle of hard alcohol, but he wasunsure how much he actually drank. He could not recall how big the bottle was butestimated that it was possibly eighteen ounces. The Respondent recalled that onthat day, he pulled into a "7-Eleven" and saw four police officers. He "freaked out"and backed out, but the police followed him and pulled him over. When asked abouthis blood alcohol content, the Respondent explained that it was 0.18 and that at thetime he weighed 125 pounds which is why the alcohol "hit" him "hard." TheRespondent could not recall what day or time he was arrested. After theDepartment confronted the Respondent with the police report, which indicated hetold police he had consumed five beers, he explained that he told police that he didnot know how much alcohol he had consumed but the police asked him how muchhe had consumed "when it came to beers" and he told them five beers. See Exh. 11at 129. When asked if he recalled telling police that he had begun drinking at 10:00or 11:00, and that he drank five cans of beer, the Respondent stated, "in my defense,I was drunk so I don't remember." Id. Ultimately, on February 6, 2007, theRespondent pled guilty to driving with a blood alcohol content higher than .08 andhis driver license was revoked for a year.
While still on cross examination, the Respondent denied that six monthsafter his first DUI conviction, he was arrested for driving with a suspended license.He explained that he was cited for driving with a suspended license but was notarrested. He further testified that after he was cited he went to court and "tried toapologize," but the criminal judge ordered that he serve ten days in jail. Whenasked if he remembered being cited for driving with a suspended license on August28, 2007, and again on November 21, 2007, the Respondent admitted that he diddrive with a suspended license when he was eighteen or nineteen because heremembered thinking that the ten day jail sentence was "too much" and that hewanted to do community service. He further stated that with regard to his DUI
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convictions, alcoholism is a disease and there are a lot of things that he does notremember because he was intoxicated.
The Respondent conceded that he was convicted of a second DUI on February9, 2008. Exh. 6 at 177. At the time, he was twenty years old. The Respondentrepeatedly told the Department that alcoholism is a disease and that if there areconviction records then he has "already admitted to them." The Court asked theRespondent whether he had told the civil surgeon about all of his arrests, and heanswered, "Honestly, no."
The Respondent conceded that he was required to complete an eighteenmonth multiple offender alcohol program after his second DUI conviction. Aftercompleting this program, he was arrested and convicted of his third DUI. He wassentenced to 240 days in jail and ordered to complete another eighteen monthprogram. The Department then initiated removal proceeding against him on August8, 2011. On November 11, 2011 Immigration Judge David Burke granted theRespondent a S6,000 bond. While out on bond, the Respondent was arrested for afourth DUI on November 12, 2014. When asked about his blood alcohol content, theRespondent stated that he believed it was .08. But see Exh. 3, Felony Guilty Plea, at4 (providing that the Respondent admitted to driving with a blood alcohol content of0.21.)
On November 30, 2018, the Department confronted the Respondent withmultiple police reports and guilty plea forms. Exhs. 3, 12, 13. When asked whetherhe understood the consequences of his 2007 guilty plea, the Respondent indicatedthat he did not. See Exh. 12 at 24. Upon further questioning by the Court, theRespondent explained that he took it "as another signature." When asked whetherhe had checked the boxes without reading them, the Respondent stated, "I spedthrough them your honor." Thereafter, the Department asked him whether heunderstood that he would have his driver license suspended for a year, and heindicated that he did not because he got "three more DUls." Id.
When asked about his second DUI, the Respondent explained that onFebruary 9, 2008, he was driving a friend home who had "way too much to drink."He further testified that he had stopped drinking in the middle of the night and wasnot as intoxicated as his friend. The Respondent was driving on the freeway whenthe highway patrol pulled him over. He testified that he got scarred and begandriving slower than the speed limit as he was exiting. When asked whether abreathalyzer test had been administered, the Respondent explained that he did notbelieve one had been taken, because the officer told him that he was going to takehim to the police station where his parents could pick him up. However, after theofficer ran his identification and realized he had a prior DUI conviction, the officerapologized and told the Respondent that he had to "take him in" because of his priorconviction, but if he did not have that prior DUI conviction he would have not gotten
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arrested. Initially, the Respondent indicated that he did not remember if his bloodalcohol level was above .08. The Respondent then conceded that his blood alcohollevel was above 0.08 after he was confronted with a copy of his plea agreement. SeeExh. 12 at 35.
The Respondent was arrested for his third DUI on October 30, 2010. At thetime, he was on probation for his second DUI. The Respondent testified that he wason his way to a friend's house when he was pulled over by police. He recalled thatthe police officer had just finished pulling someone else over so he merged onto themiddle lane to avoid the police officer cutting him off. When asked what time he waspulled over, the Respondent indicated that it was either really early in the morning"like 1:00" or really late "like 11:00." He explained that his friend "was underdistress." The Respondent testified that he had drank three beers and he had takenanother beer with him, but he did not drink it. When confronted with the policereport, the Respondent indicated that he did not remember being stopped becausehe, made a sharp turn, parking his vehicle diagonally in the roadway, or handingthe police officer an open beer can. But see Exh. 13. However, he conceded that thepolice officer found marijuana in his vehicle.
With regard to his fourth DUI, the Respondent testified that he admitted tothe facts alleged in his plea agreement. Exh. 12 at 7. He explained that he did notwrite the alleged facts but did initial them: Id.
During direct examination, the Respondent testified that he had beendetained at Theo Lacey since September 6, 2018. He explained that the facilityoffers "programs every day," but only offers AA and narcotic anonymous (NA)meetings twice a week. He further testified that he attends programs four to fivetimes a week, but sometimes he is unable to make it because the facility only allowsfive people out of the barrack at a time.
The Respondent stated he can assure the Court that he will not drink anddrive. He recognizes that he has taken the last twenty-four years and hisopportunity to live in the United States for granted. He intends to take advantage ofevery day to be a better person, and though he calls himself a "wounded soldier," heis a soldier nonetheless and is willing to "battle whatever it takes." The Respondentwants to keep his mother and wife happy and wants to help his sister and his bestfriend. If the Respondent were released, he would live with his parents at theirhome in Lake Elsinore, California. He and his wife are looking to move into anapartment next year, but his wife must first finish her "training" and whatever "lifechanges she is going through." Upon release, Respondent would work with hisfather and would also return to work at VCA animal hospital. The Respondenttestified that working at VCA was his favorite job. He was employed full-time as areceptionist but also assisted the doctors. He had a good relationship with all of thedoctors, the medical director, and his boss.
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B. Carmelo Martinez Achotla
The following is a summary Carmelo Martinez Achotla's testimony, givenunder oath on November 2, 2018.
Carmelo Martinez Achotla (Mr. Achotla) is the Respondent's friend. Heknows the Respondent because they attended the same church in San JuanCapistrano, California. Mr. Achotla currently resides with his two sisters in SanJuan Capistrano and works at a Mercedes Benz dealership in Laguna Niguel. Hehas worked at the same dealership for twenty years.
Mr. Achotla acknowledged that he is the. Respondent's joint sponsor. Exh. 6,Tab C at 27. When asked if he understood that, as the Respondent's joint sponsor heassumed financial responsibility for him and that he could be asked to reimbursethe government for any means-tested benefits provided to the Respondent, Mr.Achotla indicated that he understood.
C. Roxana Roman
The following is a summary of Roxana Roman's testimony, given under oathon December 11, 2018.
Roxana Roman (Mrs. Roman) is the Respondent's mother. She is fifty-threeyears old and a LPR. She has four children. Mrs. Roman testified that theRespondent came to the United States in October 1991. He was three years old atthe time. She further testified that the Respondent has not left the United Statessince his initial entry and was educated in the United States. The Respondentgraduated from Dana Hills High School in 2006 and attended Sandleback College inMission Viejo. Mrs. Roman stated that the Respondent was a good student.
Mrs. Roman described the Respondent as loving, caring, and friendly. Shestated the Respondent began working when he was almost sixteen years old,because he wanted to buy himself an iPod to listen to music.
Mrs. Roman is aware of the Respondent's criminal history. She testified thatthe Respondent has four DUI convictions and that his last DUI was on November12, 2014. Mrs. Roman knows that the Respondent has been sober for four yearsbecause she has been around him, supported him, taken him to his AA classes, andhas seen a change in him. Specifically, she has seen that the Respondent is regretfuland is trying to better himself. Mrs. Roman does not believe that the Respondent isa danger to the community because he has a big heart and only cares about hisfamily. Mrs. Roman further testified that she does not believe the Respondent will
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drink and drive again. According to her, everything that is happening to theRespondent has been a hard lesson for him and he does not want to go throughsomething similar again. Mrs. Roman knows that the Respondent wants to getahead in life.
Mrs. Roman stated that she has possession of the Respondent's car. Sheknew that not having the breathalyzer had gotten the Respondent in trouble, so shehad the device installed. During cross examination, Mrs. Roman recalled that shehad the device installed in September 2018. She explained that she had the deviceinstalled because she hopes the Respondent will be released.
If the Respondent were removed, Mrs. Roman testified she would be affected.Although she has four children, the Respondent is the closest to her, and thereforeshe would be affected if he were not with her. If the Respondent were released, Mrs.Roman, her husband, and her children would be there to support and help theRespondent with whatever he needs.
During cross examination, Mrs. Roman indicated that the Respondent stilllives with her and her husband. The Respondent, however, has not always livedwith her. She explained that the Respondent has also lived with his wife. Mrs.Roman testified that the Respondent got married on June 3, 2011. At the time of hismarriage, the Respondent was in state custody. Thereafter, the Respondent wasplaced in immigration custody. Mrs. Roman conceded that when the Respondent gotmarried, he knew he was having immigration problems. After the Respondent wasreleased from immigration custod,y he and his wife lived in different places, whichMrs. Roman could not remember. After the Respondent got married, he returned tolive with Mrs. Roman for a few months in 2012. Mrs. Roman further testified thatthe Respondent and his wife came and went because they lost their apartment andmoved back in with her family. When the Respondent was arrested for his fourthDUI, he and his wife were living in an apartment in Mission Viejo, California.
Mrs. Roman testified that the Respondent was last arrested on August 7,2018. At the time, she was in Mexico visiting her parents. She stated that her fatheris eighty-six years old and her mother is seventy-five years old. Mrs. Roman alsohas a sister that resides in Mexico.
D. Abigail Roman
The following is a summary of Abigail Roman's testimony, given under oathon December 11, 2018.
Abigail Roman (Ms. Roman) is the Respondent's younger sister. She is twentyyears old. Ms. Roman testified that she has always felt closest to the Respondent.She and Respondent have similar personalities and share the same morals. The
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Respondent has always told her to have a smile on her face and to be kind to peopleno matter how cruel they are.
Ms. Roman currently attends UCR. She testified that the Respondent hasgotten her all of her electronics, which has made her parents' life easier becausetuition is already very expensive. Ms. Roman is aware of the Respondent'sconvictions. He has told her not to repeat his mistakes, and uses himself as anexample for her to pursue a career and a better life. Ms. Roman further testifiedthat despite the Respondent's convictions, she still sees him the same. She knowsthat the Respondent has made many mistakes, but she does not believe hismistakes define who he is, Ms. Roman testified that the. Respondent is still thekind, humble, and sweet brother that she has always known. Ms. Roman is notconcerned about the Respondent drinking and driving again because he has beensober for four years. She explained that the Respondent is a very dedicated personand when he sets his mind to something he fulfills it.
Ms. Roman knows that the Respondent has been attending AA meetings forthe past four years. She recalled that when she was home and asked where theRespondent was, she would be told he was at his meetings. Ms. Roman would alsoask him questions about his meetings and the Respondent would tell her about theMADD program and the stories mothers shared.5 Ms. Roman has seen a change inthe Respondent. She explained that he was more involved and personable.
E. Alex Murrillo
The following is a summary of Alex Murrillo's testimony, given under oath onDecember 11, 2018.
Alex Murrillo (Mr. Murrillo) is the Respondent's friend. He and theRespondent met last year in AA. At the time, he was eighteen years old. Prior to theRespondent's_ detention, Mr. Murrillo saw him every week. The Respondent wouldguide him and talk to him about sobriety.
Mr. Murrillo is aware of the Respondent's four DUI convictions. TheRespondent has described his DUIs as mistakes and has advised Mr. Murrillo not torepeat his mistakes. The Respondent has also emphasized the importance ofsobriety and told him mistakes can be fixed with time.
Mr. Murrillo has lived with the Respondent in the past. He explained that atone point he was going through a lot of issues and constantly fighting with hismother. Eventually his mother kicked him out of her house, and the Respondenttook him in, offered to help him, and ensured that he remained sober. Mr. Murrillo
5 MADD is an acronym for Mothers Against Drunk Driving.
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further testified that the Respondent has taught him "to be a man" and to have ajob. The Respondent got him a job at his father's painting company. Mr. Murrilloalso works at Chipotle, and is slowly saving to buy a car. Mr. Murrillo testified thathe used to not have any ambition,s but the Respondent taught him the importanceof loving himself and doing things for himself. He descried the Respondent as agreat friend.
F. Yolanda Caban
The following is a summary of Yolanda Cabants testimony, given under oathon December 18, 2018.
Yolanda Caban (Mrs. Caban) is the Respondent's wife and petitioner. Sheacknowledged that she understood that by singing an affidavit of support she wasentering into a binding contract with the government and accepted theresponsibilities bestowed through such contract.
Mrs. Caban testified that she and the Respondent have been married forseven years. She and the Respondent do not have children together, but she hasthree children from a previous relationship. Her children are twenty-six, twenty-three, and twenty-one years old. Mrs. Caban described the Respondent'srelationship with her children as "awesome," and stated that the Respondent hasbeen a good father figure. She further testified that the Respondent has done a lotfor her children and has been there for them emotionally, mentally, and financially.
Mrs. Caban further testified that her children know about the Respondent'sconvictions since they talk about everything. The Respondent advises her childrennot to repeat his mistakes and guides them in "every type of way." He alsoencourages them to go to school and be responsible. Mrs. Caban explained that herson is a manager at Pollo Loco, and is very responsible twenty-one year old. Herdaughters are also doing well, and one of her daughters is a registered nurse. Mrs.Caban credits her children's success to the Respondent because he has been therefor her "a lot."
Mrs. Caban testified that she and her husband have an "awesomerelationship." She stated the Respondent has been sober for four years. Mrs. Cabanknows he has remained sober because she has been around him and hasaccompanied him to AA meetings. She testified that she has seen a change in theRespondent. She further testified that her husband is very supportive. She hasdealt with her own alcohol problem, but thanks to the Respondent she is doing welltoo.
Should the Court grant the Respondent residency and should he be released,Mrs. Caban and the Respondent plan to get an apartment so that together they can
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live a normal, sober life and be happy. During cross examination, Mrs. Cabantestified that she is currently working as a kennel assistant at a pet hotel. She ispaid minimum wage, and estimated that she earns about 82,500 a month. Mrs.Caban does not currently have health insurance through her job. She stated thatshe used to have MediCal but does not anymore. She last received public aid sixmonths ago.
Prior to her current job, Mrs. Caban was not working because the Respondentwas supporting her. Prior to the Respondent's detention, Mrs. Caban was inrehabilitation for alcohol abuse. She testified that she was in rehabilitation forthree months. Mrs. Caban testified she has never been convicted of a DUI.
IV. Law and Analysis
A. Credibility
The Court must make a threshold credibility determination beforeconsidering whether the Respondent meets any of the statutory criteria for therelief requested. See Matter of O-D-, 21 I&N Dec. 1079, 1080-81 (BIA 1998). TheREAL ID Act of 2005 amended various sections of the Act relating to theadjudication of applications filed on or after May 11, 2005. Pub. L. No. 109-13, Div.B, 119 Stat. 231 (2005). Because the Respondent filed his application for adjustmentof status on June 21, 2011, the REAL ID Act governs the standards for burden ofproof and credibility in his case. See Exhs. 2, 6.
Under the REAL ID Act, considering the totality of circumstances, and allrelevant factors, the Court may base its credibility determination on the demeanor,candor, or responsiveness of the respondent, the inherent plausibility of his account,the consistency between his written and oral statements, the internal consistency ofeach such statement, the internal consistency of such statements with otherevidence of record, any inaccuracies or falsehoods in such statements, or any otherrelevant factor. See INA § 240(c)(4)(C).
Here, the Court finds that the Respondent and his witnesses were credible.Although the Department raised concerns about the Respondent's ability to presentthe details of his arrests and alleged that the Respondent minimized the conduct ofhis offenses, the Court believes the testimony of record arrived near the truth basedon full questioning and confronting reports. Additionally, the Court notes that theRespondent did not deny his convictions. While at times he was unable to recall thedetails of his arrests, the Respondent and the Court recognized that his inability torecall certain details was likely attributed to his inebriated state at the time of hisarrests.
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The Court finds that the Respondent testified coherently and with detailthroughout his hearing. His testimony was internally consistent and consistentwith the evidence of record. Moreover, Respondent's witnesses' testimony was alsointernally consistent and corroborated Respondent's testimony. Considering thetotality of the circumstances and all relevant factors, the Court concludes thatRespondent and his witnesses were credible.
B. Adjustment of Status Pursuant Section 245(a) of the INA
The Respondent seeks relief from removal in the form of adjustment of statuspursuant to INA § 245(a). There are four statutory requirements for adjustment ofstatus: the respondent must (1) file an application; (2) be eligible to receive animmigrant visa; (3) be admissible for permanent residence; and (4) have animmigrant visa immediately available at the time the application is approved. INA§ 245(a). Additionally, the Respondent must establish that he warrants adjustmentof status in the exercise of discretion. Id.; Esquivel-Garcia v. Holder, 593 F.3d 1025,1029 (9th Cir. 2010).
In the present matter, the Respondent has submitted a completed Form 1-485, Application to Register Residence or Adjustment of Status, as well as proof ofan approved Form 1-130 petition filed on his behalf by his U.S. citizen wife. SeeExhs. 2, 6, 9. Both parties agree that the Respondent is statutorily eligible foradjustment of status. At issue is whether the Respondent met his burden ofestablishing that he merits adjustment of status as a matter of discretion. INA §245(a); 8 C.F.R. § 1240.8(d); see also Elkins v. Moreno, 435 U.S. 647, 667 (1978)(noting that even when a respondent's statutory eligibility is undisputed, thedecision to grant relief is a "matter of grace, not right").
An applicant for adjustment of status bears the burden of demonstrating thathe merits relief as a matter of discretion. Matter of Arai, 13 I&N Dec. 494, 495 (BIA1970); Matter of Blas, 15 I&N Dec. 626, 629 (BIA 1974; AG 1976). The"extraordinary discretionary relief' of granting adjustment of status in removalproceedings, which dispenses with the ordinary consular procedures for adjustmentof status, "can only be granted in meritorious cases." Blas, 15 I&N Dec. at 630."Where adverse factors are present, it may be necessary for the alien to presentevidence of unusual or even outstanding equities to outweigh these negativefactors." Arai, 13 I&N Dec. at 496. In determining whether to favorably exercisediscretion, the Court must consider the totality of evidence, balancing positiveequities against negative factors. See Matter of Marin, 16 I&N Dec. 581, 584-86; seealso Rashtabadi v. INS, 23 F.3d 1562, 1570 (9th Cir. 1994) (noting that Marin"governs all decisions on whether to grant discretionary relief). Positive factorsinclude: family ties in the United States; lengthy residency in this country; hardshipto the respondent and to his family if removal occurs; service in the Armed Forces; ahistory of employment; the presence of property or business ties; the existence of
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value and service to the community; proof of genuine rehabilitation if therespondent has a criminal record; and any other evidence attesting to therespondent's good character, such as affidavits from family, friends, or communityrepresentatives. See Marin, 16 I&N Dec. at 584-85. Negative factors include: thenature and underling circumstances concerning the respondent's grounds forremoval, the existence of additional significant immigration violations, theexistence of a criminal record, and any other evidence of the respondent's badcharacter or undesirability as a lawful permanent resident in the country. See id.The underlying aim of this analysis is to determine whether granting relief wouldbe in the best interests of the United States. See, e.g., id. at 584 (emphasis added).
Here, the Court weighs the positive and negative factors in the Respondent'scase and finds that a favorable exercise of discretion is not warranted. The Courtrecognizes that the Respondent presents some positive equities: he has resided inthe United States since he was three years old, has significant family ties includinga United States citizen wife, employment history dating back to when he wassixteen years old, several letters of support, and evidence of rehabilitation efforts.See Exhs. 6. The Court specifically notes that the Respondent testified that he hasbeen sober for four years and intends to continue attending AA classes. Moreover,the Court is mindful that the Respondent's parents, siblings, wife, and step childrenwould experience some emotional and financial hardship if he were removed.However, the Court notes that according to the amended medical report, theRespondent and his wife have been separated since 2016. Exh. 15. The Courtbelieves that this minimizes the potential hardship to his wife, particularly becausethey were separated before the Respondent was detained. The amended medicalreport further notes that the Respondent's wife has a history of alcohol abuse, whichshe testified to, and a twelve-year history of methamphetamine abuse. Id. A twelve-year history of methamphetamine abuse and the fact that the Respondent and hiswife may be separated, leads the Court to question the Respondent's and his wife'stestimony as neither were forthcoming about this information.
Despite the Respondent's positive equities, the Court finds that theRespondents criminal history, namely his four DUI convictions, presents asignificant negative factor that detracts from a discretionary finding in his favor.See Exhs. 3, 4, 6, 10, 11, 12, 13. The Respondent pleaded guilty and was convictedfor his first DUI on February 6, 2007. Exh. 10 at 3-4. Exh. 23, Tab E. During crossexamination, the Respondent conceded that he was under the legal drinking ageand that his blood alcohol level was 0.18, more than double the legal limit. Exh. 11.For this offense the Respondent was sentenced to three years probation, fined, andhad his driver license suspended for a year. Exhs. 10 at 3-4, 12, Tab F. Despitehaving his driver license suspended, the Respondent continued to drive. As noted inthe FBI criminal history report, the Respondent was arrested for driving on asuspended license on August 28, 2007, and December 12, 2007. Exh. 10 at 4-5.Notably, the Respondent initially denied that he was ever arrested or convicted for
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driving with a suspended license. Rather, he explained that after his first DUIconviction he was "ticketed," and when he went to court to try to apologize he wassentenced to ten days in jail. Thereafter, the Respondent admitted to driving with asuspended license when he was "eighteen or nineteen" but did not concede that hewas in fact convicted.
On February 9, 2008, approximately one year after the Respondent's firstDUI conviction, still under the legal drinking age, and again driving with asuspended license, the Respondent was arrested for a second DUI. Exh. 10 at 4.During cross examination, the Respondent testified that he was pulled over bypolice while driving a "drunk friend" home. He admitted that he drank that night,but explained that he was not as intoxicated as his friend was since he had stoppeddrinking in the middle of the night. Although he conceded that a breathalyzer examwas performed, he testified that he did not believe his blood alcohol level was .08 orhigher because the police officer told him he would have not arrested him had henot had a prior DUI conviction. Contrary to the Respondent's testimony, however,his plea agreement reflects he pleaded guilty to driving with a blood alcohol contentof .08 or above and with a suspended license. Exh. 12 at 35. For this offense theRespondent was sentenced to sixty days in jail and five years probation. Id. at 37.
On October 30, 2010, while still on probation for his second DUI, theRespondent was arrested for his third DUI. He testified that he drank three beersand was driving to his friend's house because his friend was in "distress." However,according to the police report, the Respondent's blood alcohol level was 0.15, nearlydouble the legal limit. Exh. 23, Tab G. For this offense, the Respondent wassentenced to 240 days in jail, five years probation, and he was ordered to completean eighteen month multiple offender program, which the Respondent testified hecompleted. Exh. 12 at 53-56; see also Exh. 6 at 141 (noting that proof of completionof the eighteenth month program was filed on May 13, 2013).
According to the incident report relating to the October 30, 2010, arrest, thearresting officer observed the Respondents vehicle "nearly struck the curb" whenmaking a turn. See Exh. 13 at 2. The Respondent then "stopped the vehiclediagonally in the roadway." Id. The arresting officer relates that, after pulling himover, the Respondent admitted he did not have a license, and handed the officer acan of beer, which was still cold to the touch. Id. at 3. The arresting officer observedthat the Respondent's behavior "changed from cooperative and remorseful toarrogant and indifferent." Id. After arresting the Respondent, the officer providedthat the Respondent told him "you suck," and attempted to make the officer "feelguilty for arresting him and stated that [the officer] ruined his life." Id. at 6.
On November 12, 2014, while in removal proceedings, on probation, and outon bond from immigration detention, the Respondent was arrested for a fourth DUI.As a result of this arrest, the Respondent eventually suffered a felony DUI
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conviction because of his recidivist nature. Of utmost concern to the Court is thefact that the Respondent's blood alcohol level at the time of the arrest was 0.21percent, nearly three times the legal limit. Exh. 3 at 7. The Court also finds itsignificant that, at the Respondent's first hearing, Immigration Judge Burkewarned him that three DUI convictions would be a "heavy burden" for adjustmentof status. Nevertheless, not only did the Respondent disregard the Court's warning,but his conduct escalated in seriousness and in danger, notwithstanding hisawareness of the severe consequences of his actions on his immigration proceedingsand his possibility for discretionary relief.
The Court notes that the Respondent testified that he has been sober for fouryears and has made efforts to stay on the right path since his last DUI. Yet, theCourt notes that the Respondent was arrested on August 18, 2017, for driving a:vehicle without a functioning ignition interlock devise, a charge that is stillpending. Exh.12 at 58. The Respondent testified that his driver license was revokedfor four years because of his felony DUI conviction. Given his progress, however, hislicense was reinstated in 2016, but he was required to have a breathalyzer installedin his vehicle. He further testified that on the day of his arrest he was driving a carhe had recently purchased and was only pulled over by police because the car didnot have license plates. Although the pending criminal charges may not appear tobe as severe, it does not diminish the fact that Respondent again knowingly violatedthe law and the conditions of his probation. The Respondent has been givencountless opportunities, and yet he has demonstrated a blatant disrespect for thelaws of the United States and the State of California.
Although the Court acknowledges that the Respondent has made some effortsat rehabilitation, it finds that his rehabilitation efforts do not offset theoverwhelmingly negative weight of his convictions. See Exhs. 3, 4, 6, 10, 11, 12, 13.The Respondent was arrested and convicted of four separate DUIs over the course ofnine years. Exhs. 10, 12. With each DUI conviction, the Respondent had anopportunity to rehabilitate himself and refrain from drinking and driving. Despitethe opportunities afforded to him by the judicial system, the Respondent continuedto engage in such behavior, placing himself and other citizens in danger. His fourconvictions make it exceedingly difficult to conclude that his attempts atrehabilitation since 2014 are any different than his attempts after his first threeconvictions. Notably, the Respondent was granted bond and released fromimmigration custody because of his alleged rehabilitation efforts after his thirdDUI.
The Court cannot understate the heightened danger posed by a driver likethe Respondent who has a history of driving while intoxicated, placing thecommunity at risk of injury and death. See Missouri v. McNeely, 133 S. Ct. 1552,1565 (2013) (citing statistics that in 2011, 9,878 people were killed in alcohol-
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impaired driving crashes and that drunk driving continues to take a toll on society).As noted by the Board of Immigration Appeals (Board),
"Drunk driving is an extremely dangerous crime." Begay v.United States, 553 U.S. 137, 141 (2008), abrogated on othergrounds, Johnson v. United States, 135 S. Ct. 2551 (2015). Ittakes "a grisly toll on the Nation's roads, claiming thousands oflives, injuring many more victims, and inflicting billions ofdollars in property damage every year." Birchfield v. NorthDakota, 136 S. Ct. 2160, 2166 (2016). "[Tlhe very nature of thecrime of [driving while intoxicated] presents a 'serious risk ofphysical injury' to others. . ." United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000); see alsoMarmolejo-Campos v. Holder, 558 F.3d 903, 913 (9th Cir.2009) (noting that "the dangers of drunk driving are wellestablished").
Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018). Indeed, the Respondent himselftestified about his best friend's wife, who is currently incarcerated because shedrove impaired and killed three people.
The Court also finds problematic evidence in the record regarding theRespondent's relationship to his spouse. The Court will not question the validity ofthe Government's decision to approve the visa petition filed by Mrs. Caban. SeeMatter of McKee, 17 I&N Dec. 332 (BIA I 980)("Where the parties have entered a,valid marriage and there is nothing to show they have obtained a legal separationor dissolution of the marriage, the Service cannot deny the petition simply becausethe couple is not living together."). However, the Court notes that, according to anindependent report completed by the civil surgeon, the Respondent "is married, butseparated" from his spouse since 2016. See Exh. 15. The civil surgeon's report alsoprovides that Mrs. Caban "has been homeless and has not significantly contributedto the care of her minor child." Id. He also observed that Mrs. Caban's past medicalhistory "is significant for alcohol abuse and a 12-year history if (sic)methamphetamine abuse." Id. The Court notes that Mrs. Caban was not confrontedwith the contentions made by the civil surgeon and provided an opportunity torespond. Nevertheless, the Court finds the evidence of record probative of theRespondent's relationship with his spouse, and her ability to ensure the Respondentrefrains from dangerous behavior.
The Court has considered the civil surgeon's conclusion that the Respondent'sbehavior "is not likely to recur." Exh. 15. The Court is sympathetic. However, theCourt notes that the Respondent has been afforded several opportunities to reform.The Court finds the Respondent's repeated disregard for the laws of this countryand for the safety of its citizens greatly reinforces his undesirability as a lawfulpermanent resident. See Marin, 16 I&N Dec. at 584-85.
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The Court acknowledges that the Respondent's spouse, stepchildren, andmother will experience separation if he is returned to his home country. However,separation is a natural consequence of deportation. Contreras-Buenfil v. INS, 712F.3d 401, 403 (9th Cir. 1983). The Court notes that the family has been separated inthe past during the Respondent's various incarcerations. The Court alsoacknowledges that, if required to return to Mexico, the Respondent's family will facesome adjustment to their standard of living. However, a lower standard of living isa normal consequence of an alien's removal from the United States. Matter ofMonreal, 23 I&N Dec. 56, 63-4 (BIA 2001). Based on the totality of this record, theCourt does not find the consequences of the Respondent's departure from the UnitedStates would result in outstanding or unusual consequences to his spouse,stepchildren, and mother.
After considering the positive and negative factors in the Respondent's case,the Court finds that the positive factors do not outweigh the seriousness of hiscriminal history. As such, the Court finds on balance that the Respondent does notmerit a favorable exercise of discretion and will DENY his application foradjustment of status under INA § 245(a). See 8 C.F.R. § 1245.1.
C. Voluntary Departure
To be eligible for voluntary departure at the conclusion of proceedings undersection 240B(b) of the INA, an applicant must establish that he: 1) has beenphysically present in the United States for at least one year prior to service of theNTA; 2) has been a person of good moral character for five years preceding theapplication; and, 3) is not removable under section 237(a)(2)(A)(iii)[conviction of anaggravated felony] or section 237(a)(4)[security related grounds]. The applicantmust also establish that he warrants voluntary departure in the exercise ofdiscretion. INA § 240B(b).
Here, the Court has considered the totality of the evidence of record. SeeMatter of Arguelles-Campos, 22 I&N Dec. 811 (BIA 1999) (Immigration Judge mustbalance favorable and adverse factors when determining whether to grantvoluntary departure as a matter of discretion); see also Matter of Lemhammad, 20I&N Dec. 316, 326 (BIA 1991). The Court has specifically taken into considerationthe Respondent's criminal history in the United States. As detailed above, theRespondent was arrested and convicted of four separate DUIs between 2006 and2015. Exhs. 3, 10, 12. The Court finds the Respondent's criminal history to beextremely troublesome.
The Court has also considered the Respondent's equities, including his lengthof residence, family ties, and evidence of rehabilitation. While significant, the Courtdoes not find the equities presented in this record outweigh the significant criminal
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history accumulated by the Respondent in the United States and while in removalproceedings.
The Court recognizes that voluntary departure requires a lesser showing ofequities in order to warrant a favorable exercise of discretion. See Matter of Blas, 15I&N Dec at 629-30 ("Adjustment of status is a much higher form of discretionaryrelief than a grant of voluntary departure."). On this record, the Court findssignificant negative facts countenancing against a favorable exercise of discretion.Based on a careful balancing of the evidence of record as a whole, the Court findsthe Respondent does not merit the minimal privilege of voluntarily departing theUnited States in lieu of removal. Thus, in the exercise of its discretion, the Courtwill DENY the Respondent's request for voluntary departure under section 240B(b)of the INA.
Accordingly, the Court will enter the following Orders:
ORDERS
IT IS HEREBY ORDERED that the Respondent's application foradjustment of status under section 245(a) of the INA be DENIED.
IT IS FURTHER ORDERED that the Respondent's application forvoluntary departure under section 240B(b) of the INA is hereby DENIED.
IT IS FURTHER ORDERED that the Respondent be REMOVED toMEXICO on the charge contained in the Notice to Appear.
IT IS FURTHER ORDERED that the hearing scheduled for January 15,2019, at 1:00 pm is hereby VACATED.
DATED: January 9, 2019FRANK M. TRAVIESOIMMIGRATION JUDGE
APPEAL RIGHTS: Both parties have, the right to appeal the decision in this case.Any appeal is due at the Board of Immigration Appeals on or before thirty (30)calendar days from the date of service of this Order.
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APPENDIX D
UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014
In the Matter of:
Roman Vega, Erick Adrian Case No. A200 977579
IN REMOVAL PROCEEDINGS
DECISION AND ORDER OF THE IMMIGRATION JUDGE
Respondent moved the Court to terminate proceedings arguing that theNotice to Appear (NTA) is invalid pursuant to the Supreme Court's decision inPereira v. Sessions, 138 S.Ct. 2105 (2018), for failing to provide a time and place forthe initial removal hearing as required under § 239 of the Act. Therefore,Respondent contends, the NTA is defective and proceedings should be terminated.
While this Court agrees that "[a] putative [NTA] that fails to designate thespecific time or place of the noncitizen's removal proceedings is not [an NTA] under[INA § 239(a)] [...]," Pereira, 138 S.Ct. at 7, the Board of Immigration Appeals (BIA)has held otherwise. In Matter of Bermudez-Cota, the BIA held that an NTA "thatdoes not specify the time and place of the alien's initial removal hearing vests anImmigration Judge with jurisdiction over the removal proceedings and meets therequirements of section 239(a) of the Act, so long as a notice of hearing specifyingthis information is later sent to the alien." Matter of Bermudez-Cota, 27 I&N Dec.441,447 (BIA 2018).
Accordingly, the Court enters the following orders:
ORDER
IT IS HEREBY ORDERED that the respondent's motion to terminateproceedings be DENIED.
DATE: 9/10/18Immigration Judge
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CERTIFICATE OF SERVICETHIS DOCUMENT WAS SERVED BY: MAIL (M) PERSONAL SERVICE(P) TO [ ] ALIEN [ ] ALIEN c/o CUSTODIAL OFFICER [ ] Alien's ATT/REP
[ ] DHS
DATE: 9/10/18 BY: COURT STAFF:
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APPENDIX E
1. The current version of 8 U.S.C. § 1229 provides:
8 U.S.C. § 1229 - Initiation of removal proceedings
(a) Notice to appear
(1) In generalIn removal proceedings under section 1229a of this title, written notice (inthis section referred to as a "notice to appear") shall be given in person to thealien (or, if personal service is not practicable, through service by mail to thealien or to the alien's counsel of record, if any) specifying the following:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory provisions allegedto have been violated.
(E) The alien may be represented by counsel and the alien will beprovided (i) a period of time to secure counsel under subsection (b)(1)and (ii) a current list of counsel prepared under subsection (b)(2).
(F)
(G)
(i) The requirement that the alien must immediately provide (orhave provided) the Attorney General with a written record of anaddress and telephone number (if any) at which the alien maybe contacted respecting proceedings under section 1229a of thistitle.(ii) The requirement that the alien must provide the AttorneyGeneral immediately with a written record of any change of thealien's address or telephone number.(iii) The consequences under section 1229a(b)(5) of this title offailure to provide address and telephone information pursuantto this subparagraph.
(i) The time and place at which the proceedings will be held.
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(ii) The consequences under section 1229a(b)(5) of this title ofthe failure, except under exceptional circumstances, to appear atsuch proceedings.
(2) Notice of change in time or place of proceedings
(A) In generalIn removal proceedings under section 1229a of this title, in the case ofany change or postponement in the time and place of such proceedings,subject to subparagraph (B) a written notice shall be given in person tothe alien (or, if personal service is not practicable, through service bymail to the alien or to the alien's counsel of record, if any) specifying
(i) the new time or place of the proceedings, and
(ii) the consequences under section 1229a(b)(5) of this title offailing, except under exceptional circumstances, to attend suchproceedings.
(B) ExceptionIn the case of an alien not in detention, a written notice shall not berequired under this paragraph if the alien has failed to provide theaddress required under paragraph (1)(F).
(3) Central address filesThe Attorney General shall create a system to record and preserve on atimely basis notices of addresses and telephone numbers (and changes)provided under paragraph (1)(F).
(b) Securing of counsel
(1) In generalIn order that an alien be permitted the opportunity to secure counsel beforethe first hearing date in proceedings under section 1229a of this title, thehearing date shall not be scheduled earlier than 10 days after the service ofthe notice to appear, unless the alien requests in writing an earlier hearingdate.
(2) Current lists of counselThe Attorney General shall provide for lists (updated not less often thanquarterly) of persons who have indicated their availability to represent probono aliens in proceedings under section 1229a of this title. Such lists shall
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be provided under subsection (a)(1)(E) and otherwise made generallyavailable.
(3) Rule of constructionNothing in this subsection may be construed to prevent the Attorney Generalfrom proceeding against an alien pursuant to section 1229a of this title if thetime period described in paragraph (1) has elapsed and the alien has failed tosecure counsel.
(c) Service by mail
Service by mail under this section shall be sufficient if there is proof of attempteddelivery to the last address provided by the alien in accordance with subsection(a)(1)(F).
(d) Prompt initiation of removal
(e)
(1) In the case of an alien who is convicted of an offense which makes thealien deportable, the Attorney General shall begin any removal proceeding asexpeditiously as possible after the date of the conviction.
(2) Nothing in this subsection shall be construed to create any substantive orprocedural right or benefit that is legally enforceable by any party againstthe United States or its agencies or officers or any other person.
Certification of compliance with restrictions on disclosure
(1) In generalIn cases where an enforcement action leading to a removal proceeding wastaken against an alien at any of the locations specified in paragraph (2), theNotice to Appear shall include a statement that the provisions of section 1367of this title have been complied with.
(2) LocationsThe locations specified in this paragraph are as follows:
(A) At a domestic violence shelter, a rape crisis center, supervisedvisitation center, family justice center, a victim services, or victimservices provider, or a community-based organization.
(B) At a courthouse (or in connection with that appearance of the alienat a courthouse) if the alien is appearing in connection with aprotection order case, child custody case, or other civil or criminal caserelating to domestic violence, sexual assault, trafficking, or stalking in
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which the alien has been battered or subject to extreme cruelty or if
the alien is described in subparagraph (T) or (U) of section 1101(a)(15)of this title.
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2. The current version of 8 U.S.C. § 1229a provides:
8 U.S.C. § 1229a - Removal proceedings
(a) Proceeding
(1) In generalAn immigration judge shall conduct proceedings for deciding theinadmissibility or deportability of an alien.
(2) ChargesAn alien placed in proceedings under this section may be charged with anyapplicable ground of inadmissibility under section 1182(a) of this title or anyapplicable ground of deportability under section 1227(a) of this title.
(3) Exclusive proceduresUnless otherwise specified in this chapter, a proceeding under this sectionshall be the sole and exclusive procedure for determining whether an alienmay be admitted to the United States or, if the alien has been so admitted,removed from the United States. Nothing in this section shall affectproceedings conducted pursuant to section 1228 of this title.
(b) Conduct of proceeding
(1) Authority of immigration judgeThe immigration judge shall administer oaths, receive evidence, andinterrogate, examine, and cross-examine the alien and any witnesses. Theimmigration judge may issue subpoenas for the attendance of witnesses andpresentation of evidence. The immigration judge shall have authority (underregulations prescribed by the Attorney General) to sanction by civil moneypenalty any action (or inaction) in contempt of the judge's proper exercise ofauthority under this chapter.
(2) Form of proceeding
(A) In generalThe proceeding may take place—
(i) in person,
(ii) where agreed to by the parties, in the absence of the alien,
(iii) through video conference, or
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(iv) subject to subparagraph (B), through telephone conference.
(B) Consent required in certain casesAn evidentiary hearing on the merits may only be conducted through atelephone conference with the consent of the alien involved after thealien has been advised of the right to proceed in person or throughvideo conference.
(3) Presence of alienIf it is impracticable by reason of an alien's mental incompetency for the aliento be present at the proceeding, the Attorney General shall prescribesafeguards to protect the rights and privileges of the alien.
(4) Alien's rights in proceedingIn proceedings under this section, under regulations of the AttorneyGeneral
(5)
(A) the alien shall have the privilege of being represented, at noexpense to the Government, by counsel of the alien's choosing who isauthorized to practice in such proceedings,
(B) the alien shall have a reasonable opportunity to examine theevidence against the alien, to present evidence on the alien's ownbehalf, and to cross-examine witnesses presented by the Governmentbut these rights shall not entitle the alien to examine such nationalsecurity information as the Government may proffer in opposition tothe alien's admission to the United States or to an application by thealien for discretionary relief under this chapter, and
(C) a complete record shall be kept of all testimony and evidenceproduced at the proceeding.
Consequences of failure to appear
(A) In generalAny alien who, after written notice required under paragraph (1) or (2)of section 1229(a) of this title has been provided to the alien or thealien's counsel of record, does not attend a proceeding under thissection, shall be ordered removed in absentia if the Service establishesby clear, unequivocal, and convincing evidence that the written noticewas so provided and that the alien is removable (as defined insubsection (e)(2)). The written notice by the Attorney General shall beconsidered sufficient for purposes of this subparagraph if provided at
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the most recent address provided under section 1229(a)(1)(F) of thistitle.
(B) No notice if failure to provide address informationNo written notice shall be required under subparagraph (A) if the alienhas failed to provide the address required under section 1229(a)(1)(F)of this title.
(C) Rescission of orderSuch an order may be rescinded only—
(i) upon a motion to reopen filed within 180 days after the dateof the order of removal if the alien demonstrates that the failureto appear was because of exceptional circumstances (as definedin subsection (e)(1)), or
(ii) upon a motion to reopen filed at any time if the aliendemonstrates that the alien did not receive notice in accordancewith paragraph (1) or (2) of section 1229(a) of this title or thealien demonstrates that the alien was in Federal or Statecustody and the failure to appear was through no fault of thealien.
The filing of the motion to reopen described in clause (i) or (ii)shall stay the removal of the alien pending disposition of themotion by the immigration judge.
(D) Effect on judicial reviewAny petition for review under section 1252 of this title of an orderentered in absentia under this paragraph shall (except in casesdescribed in section 1252(b)(5) of this title) be confined to (i) thevalidity of the notice provided to the alien, (ii) the reasons for thealien's not attending the proceeding, and (iii) whether or not the alienis removable.
(E) Additional application to certain aliens in contiguous territoryThe preceding provisions of this paragraph shall apply to all aliensplaced in proceedings under this section, including any alien whoremains in a contiguous foreign territory pursuant to section1225(b)(2)(C) of this title.
(6) Treatment of frivolous behaviorThe Attorney General shall, by regulation—
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(A) define in a proceeding before an immigration judge or before anappellate administrative body under this subchapter, frivolousbehavior for which attorneys may be sanctioned,
(B) specify the circumstances under which an administrative appeal ofa decision or ruling will be considered frivolous and will be summarilydismissed, and
(C) impose appropriate sanctions (which may include suspension anddisbarment) in the case of frivolous behavior.
Nothing in this paragraph shall be construed as limiting the authorityof the Attorney General to take actions with respect to inappropriatebehavior.
(7) Limitation on discretionary relief for failure to appearAny alien against whom a final order of removal is entered in absentia underthis subsection and who, at the time of the notice described in paragraph (1)or (2) of section 1229(a) of this title, was provided oral notice, either in thealien's native language or in another language the alien understands, of thetime and place of the proceedings and of the consequences under thisparagraph of failing, other than because of exceptional circumstances (asdefined in subsection (e)(1)) to attend a proceeding under this section, shallnot be eligible for relief under section 1229b, 1229c, 1255, 1258, or 1259 ofthis title for a period of 10 years after the date of the entry of the final orderof removal.
(c) Decision and burden of proof
(1) Decision
(A) In generalAt the conclusion of the proceeding the immigration judge shall decidewhether an alien is removable from the United States. Thedetermination of the immigration judge shall be based only on theevidence produced at the hearing.
(B) Certain medical decisionsIf a medical officer or civil surgeon or board of medical officers hascertified under section 1222(b) of this title that an alien has a disease,illness, or addiction which would make the alien inadmissible underparagraph (1) of section 1182(a) of this title, the decision of theimmigration judge shall be based solely upon such certification.
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(2) Burden on alienIn the proceeding the alien has the burden of establishing—
(A) if the alien is an applicant for admission, that the alien is clearlyand beyond doubt entitled to be admitted and is not inadmissibleunder section 1182 of this title; or
(B) by clear and convincing evidence, that the alien is lawfully presentin the United States pursuant to a prior admission.
In meeting the burden of proof under subparagraph (B), the alien shallhave access to the alien's visa or other entry document, if any, and anyother records and documents, not considered by the Attorney Generalto be confidential, pertaining to the alien's admission or presence inthe United States.
(3) Burden on service in cases of deportable aliens
(A) In generalIn the proceeding the Service has the burden of establishing by clearand convincing evidence that, in the case of an alien who has beenadmitted to the United States, the alien is deportable. No decision ondeportability shall be valid unless it is based upon reasonable,substantial, and probative evidence.
(B) Proof of convictionsIn any proceeding under this chapter, any of the following documentsor records (or a certified copy of such an official document or record)shall constitute proof of a criminal conviction:
(i) An official record of judgment and conviction.
(ii) An official record of plea, verdict, and sentence.
(iii) A docket entry from court records that indicates theexistence of the conviction.
(iv) Official minutes of a court proceeding or a transcript of acourt hearing in which the court takes notice of the existence ofthe conviction.
(v) An abstract of a record of conviction prepared by the court inwhich the conviction was entered, or by a State officialassociated with the State's repository of criminal justice records,
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that indicates the charge or section of law violated, thedisposition of the case, the existence and date of conviction, andthe sentence.
(vi) Any document or record prepared by, or under the directionof, the court in which the conviction was entered that indicatesthe existence of a conviction.
(vii) Any document or record attesting to the conviction that ismaintained by an official of a State or Federal penal institution,which is the basis for that institution's authority to assumecustody of the individual named in the record.
(C) Electronic recordsIn any proceeding under this chapter, any record of conviction orabstract that has been submitted by electronic means to the Servicefrom a State or court shall be admissible as evidence to prove acriminal conviction if it is—
(i) certified by a State official associated with the State'srepository of criminal justice records as an official record fromits repository or by a court official from the court in which theconviction was entered as an official record from its repository,and
(ii) certified in writing by a Service official as having beenreceived electronically from the State's record repository or thecourt's record repository.
A certification under clause (i) may be by means of a computer-generated signature and statement of authenticity.
(4) Applications for relief from removal
(A) In generalAn alien applying for relief or protection from removal has the burdenof proof to establish that the alien—
(i) satisfies the applicable eligibility requirements; and
(ii) with respect to any form of relief that is granted in theexercise of discretion, that the alien merits a favorable exerciseof discretion.
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(B) Sustaining burdenThe applicant must comply with the applicable requirements to submitinformation or documentation in support of the applicant's applicationfor relief or protection as provided by law or by regulation or in theinstructions for the application form. In evaluating the testimony ofthe applicant or other witness in support of the application, theimmigration judge will determine whether or not the testimony iscredible, is persuasive, and refers to specific facts sufficient todemonstrate that the applicant has satisfied the applicant's burden ofproof. In determining whether the applicant has met such burden, theimmigration judge shall weigh the credible testimony along with otherevidence of record. Where the immigration judge determines that theapplicant should provide evidence which corroborates otherwisecredible testimony, such evidence must be provided unless theapplicant demonstrates that the applicant does not have the evidenceand cannot reasonably obtain the evidence.
(C) Credibility determinationConsidering the totality of the circumstances, and all relevant factors,the immigration judge may base a credibility determination on thedemeanor, candor, or responsiveness of the applicant or witness, theinherent plausibility of the applicant's or witness's account, theconsistency between the applicant's or witness's written and oralstatements (whenever made and whether or not under oath, andconsidering the circumstances under which the statements weremade), the internal consistency of each such statement, the consistencyof such statements with other evidence of record (including the reportsof the Department of State on country conditions), and anyinaccuracies or falsehoods in such statements, without regard towhether an inconsistency, inaccuracy, or falsehood goes to the heart ofthe applicant's claim, or any other relevant factor. There is nopresumption of credibility, however, if no adverse credibilitydetermination is explicitly made, the applicant or witness shall have arebuttable presumption of credibility on appeal.
(5) NoticeIf the immigration judge decides that the alien is removable and orders thealien to be removed, the judge shall inform the alien of the right to appealthat decision and of the consequences for failure to depart under the order ofremoval, including civil and criminal penalties.
(6) Motions to reconsider
(A) In general
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The alien may file one motion to reconsider a decision that the alien isremovable from the United States.
(B) DeadlineThe motion must be filed within 30 days of the date of entry of a finaladministrative order of removal.
(C) ContentsThe motion shall specify the errors of law or fact in the previous orderand shall be supported by pertinent authority.
(7) Motions to reopen
(A) In generalAn alien may file one motion to reopen proceedings under this section,
except that this limitation shall not apply so as to prevent the filing of
one motion to reopen described in subparagraph (C)(iv).
(B) ContentsThe motion to reopen shall state the new facts that will be proven at a
hearing to be held if the motion is granted, and shall be supported by
affidavits or other evidentiary material.
(C) Deadline
(i) In generalExcept as provided in this subparagraph, the motion to reopen
shall be filed within 90 days of the date of entry of a finaladministrative order of removal.
(ii) AsylumThere is no time limit on the filing of a motion to reopen if thebasis of the motion is to apply for relief under sections [1] 1158
or 1231(b)(3) of this title and is based on changed countryconditions arising in the country of nationality or the country towhich removal has been ordered, if such evidence is materialand was not available and would not have been discovered orpresented at the previous proceeding.
(iii) Failure to appearThe filing of a motion to reopen an order entered pursuant tosubsection (b)(5) is subject to the deadline specified insubparagraph (C) of such subsection.
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(iv) Special rule for battered spouses, children, and parentsAny limitation under this section on the deadlines for filing suchmotions shall not apply—
(I) if the basis for the motion is to apply for relief underclause (iii) or (iv) of section 1154(a)(1)(A) of this title,clause (ii) or (iii) of section 1154(a)(1)(B) of this title„1section 1229b(b) of this title, or section 1254(a)(3) of thistitle (as in effect on March 31, 1997);
(II) if the motion is accompanied by a cancellation ofremoval application to be filed with the Attorney Generalor by a copy of the self-petition that has been or will befiled with the Immigration and Naturalization Serviceupon the granting of the motion to reopen;
(III) if the motion to reopen is filed within 1 year of theentry of the final order of removal, except that theAttorney General may, in the Attorney General'sdiscretion, waive this time limitation in the case of analien who demonstrates extraordinary circumstances orextreme hardship to the alien's child; and
(IV) if the alien is physically present in the United Statesat the time of filing the motion.
The filing of a motion to reopen under this clause shallonly stay the removal of a qualified alien (as defined insection 1641(c)(1)(B) of this title [2] pending the finaldisposition of the motion, including exhaustion of allappeals if the motion establishes that the alien is aqualified alien.
(d) Stipulated removal
The Attorney General shall provide by regulation for the entry by an immigrationjudge of an order of removal stipulated to by the alien (or the alien's representative)and the Service. A stipulated order shall constitute a conclusive determination ofthe alien's removability from the United States.
(e) Definitions
In this section and section 1229b of this title:
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(1) Exceptional circumstancesThe term "exceptional circumstances" refers to exceptional circumstances(such as battery or extreme cruelty to the alien or any child or parent of thealien, serious illness of the alien, or serious illness or death of the spouse,child, or parent of the alien, but not including less compelling circumstances)beyond the control of the alien.
(2) RemovableThe term "removable" means—
(A) in the case of an alien not admitted to the United States, that thealien is inadmissible under section 1182 of this title, or
(B) in the case of an alien admitted to the United States, that the alien
is deportable under section 1227 of this title.
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3. The current version of 8 C.F.R. § 1003.13 provides:
8 C.F.R. § 1003.13 - Definitions.
As used in this subpart:
Administrative control means custodial responsibility for the Record of Proceedingas specified in § 1003.11.
Charging document means the written instrument which initiates a proceedingbefore an Immigration Judge. For proceedings initiated prior to April 1, 1997, thesedocuments include an Order to Show Cause, a Notice to Applicant for AdmissionDetained for Hearing before Immigration Judge, and a Notice of Intention toRescind and Request for Hearing by Alien. For proceedings initiated after April 1,1997, these documents include a Notice to Appear, a Notice of Referral toImmigration Judge, and a Notice of Intention to Rescind and Request for Hearingby Alien.
Filing means the actual receipt of a document by the appropriate ImmigrationCourt.
Service means physically presenting or mailing a document to the appropriate partyor parties; except that an Order to Show Cause or Notice of Deportation Hearingshall be served in person to the alien, or by certified mail to the alien or the alien'sattorney and a Notice to Appear or Notice of Removal Hearing shall be served to thealien in person, or if personal service is not practicable, shall be served by regularmail to the alien or the alien's attorney of record.
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4. The current version of 8 C.F.R. § 1003.14 provides:
8 C.F.R. § 1003.14 — Jurisdiction and commencement of proceedings.
(a) Jurisdiction vests, and proceedings before an Immigration Judge commence,when a charging document is filed with the Immigration Court by the Service. Thecharging document must include a certificate showing service on the opposing partypursuant to § 1003.32 which indicates the Immigration Court in which the chargingdocument is filed. However, no charging document is required to be filed with theImmigration Court to commence bond proceedings pursuant to §§ 1003.19,1236.1(d) and 1240.2(b) of this chapter.
(b) When an Immigration Judge has jurisdiction over an underlying proceeding,sole jurisdiction over applications for asylum shall lie with the Immigration Judge.
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5. The current version of 8 C.F.R. § 1003.15 provides:
8 C.F.R. § 1003.15 — Contents of the order to show cause and notice toappear and notification of change of address.
(b) The Order to Show Cause and Notice to Appear must also include the followinginformation:
(1) The nature of the proceedings against the alien;
(2) The legal authority under which the proceedings are conducted;
(3) The acts or conduct alleged to be in violation of law;
(4) The charges against the alien and the statutory provisions alleged to havebeen violated;
(5) Notice that the alien may be represented, at no cost to the government, bycounsel or other representative authorized to appear pursuant to 8 CFR1292.1;
(6) The address of the Immigration Court where the Service will file theOrder to Show Cause and Notice to Appear; and
(7) A statement that the alien must advise the Immigration Court havingadministrative control over the Record of Proceeding of his or her currentaddress and telephone number and a statement that failure to provide suchinformation may result in an in absentia hearing in accordance with §1003.26.
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6. The current version of 8 C.F.R. § 1003.18 provides:
8 C.F.R. § 1003.18 — Scheduling of cases.
(a) The Immigration Court shall be responsible for scheduling cases and providingnotice to the government and the alien of the time, place, and date of hearings.
(b) In removal proceedings pursuant to section 240 of the Act, the Service shallprovide in the Notice to Appear, the time, place and date of the initial removalhearing, where practicable. If that information is not contained in the Notice toAppear, the Immigration Court shall be responsible for scheduling the initialremoval hearing and providing notice to the government and the alien of the time,place, and date of hearing. . . .
