Litigation Post-pereira Where Are We Now?

• Publication year: 2019

Geoffrey A. Hoffman^*

Abstract: The Supreme Court's decision in Pereira v. Sessions rocked the immigration world in June 2018. Where are we now one year out from that important decision? It was straightforward in one sense: a putative notice to appear (NTA) lacking the time and place of hearing was insufficient to "stop time" for purposes of cancellation of removal under § 240A of the Immigration and Nationality Act. Pereira paved the way for potentially thousands to seek relief if they were issued defective NTAs. However, the full implications were unclear. What is left up to future courts to discern, and ultimately the Supreme Court, is how narrowly or broadly to construe Pereira.

The Supreme Court's decision in Pereira v. Sessions rocked the immigration world in June 2018.¹ The decision was straightforward in one sense: a putative notice to appear (NTA) lacking the time and place of hearing was insufficient to "stop time" for purposes of cancellation of removal under Immigration and Nationality Act (INA) § 240A. Pereira paved the way for potentially thousands to seek relief if they were issued defective NTAs. However, the full implications were unclear. What is left up to future courts to discern, and ultimately the Supreme Court, is how narrowly or broadly to construe Pereira.

Questions abound. Does the decision invalidate all immigration court proceedings with a defect in the charging document (the NTA) due to a lack of subject matter jurisdiction? Does a subsequent notice of hearing (NOH) containing the missing time and place of the first hearing "cure" or remedy the defective NTA? Who will be entitled to avail themselves of the benefits of Pereira? Only those who are currently in removal proceedings with defective NTAs? Those with final orders of removal? Those within the time period for a motion to reopen or, most expansively of all, anyone who at any time has been the recipient of a defective NTA? Is prejudice required to be shown? This article discusses these issues. Some have already been addressed in a preliminary way by Pereira's progeny. Unfortunately, as will be seen, the answers cobbled together by the Board of Immigration Appeals (BIA) and courts have proven unsatisfying and sometimes contradictory.

The starting place is jurisdiction. Justice Sotomayor, joined by seven other justices, potentially meant to implicate all immigration courts' jurisdiction by defining what counted as a valid NTA. This approach has been the focus of the discussion for at least two commentators.² Kit Johnson, for example, early on authored an article, "Pereira v. Sessions: A Jurisdictional Surprise for the Immigration Courts," emphasizing that Pereira's majority clearly held that "[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a 'notice to appear under section 1229(a).'" If, as Johnson noted, "a document isn't a notice to appear if it doesn't have a time and place on it, then it cannot be a charging document. And, without a valid charging document, jurisdiction never vests in the immigration court." This chain of reasoning implicated not personal jurisdiction but rather the courts' subject matter jurisdiction. Johnson noted that a court should not be permitted to ignore the jurisdictional defect based on a theory of "waiver," because this is not an issue of personal jurisdiction but rather of subject matter jurisdiction, which cannot be waived. Johnson also rejected any attempt to limit Pereira's scope to just cancellation of removal cases, stating that since Pereira discusses what is and is not a "valid charging document," "courts are without discretion to ignore that lack of jurisdiction."

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Professor Lonny Hoffman arrived at a wholly different conclusion in his article "Pereira's Aftershocks."³ Hoffman opines that a defective notice "does not bear on the immigration court's subject matter jurisdiction." He reasons that the intent of Congress controls, and even if Congress had placed certain matters within the scope of the immigration court's jurisdiction, "it has not expressly tethered the exercise of jurisdiction to satisfaction of the separate statutory requirements for notices to appear." For Hoffman, the notice to appear "is akin to a summons or citation that is used in state and federal civil cases to notify civil defendants that they have been sued or to the type of charging document that is used in criminal proceedings." Nevertheless, Hoffman points out that courts, unfortunately, have examined Pereira challenges solely in terms of whether a defective notice has jurisdictional consequences and have thereby "conflated the question of whether a Pereira defect implicates jurisdiction with whether it has any consequences at all." Hoffman rightly concludes that it does not follow "from the (correct) conclusion that Pereira is irrelevant to jurisdiction that there are no consequences if the government has served a defective notice." The consequences can be severe, and whether there is relief flowing from the application of Pereira will depend on concepts of retroactivity, forfeiture, and prejudice.

Although scholars disagree with one another, the Board of Immigration Appeals, unsurprisingly, did not hesitate to come down with its own decision on this fundamental issue in Matter of Bermudez-Cota.⁴ The Board in that case attempted to distinguish Pereira, finding that a notice to appear that does not specify the time and place of an alien's initial removal hearing (nonetheless) vests an immigration judge with jurisdiction over removal proceedings and meets the requirements of INA 239(a), 8 U.S.C. § 1229(a) (2012), so long as a notice of hearing specifying this information is "later sent" to the alien. This conclusion, however, was based on no statutory or regulatory authority to support an inference that a notice of hearing can vest jurisdiction in place of a notice to appear. Instead, the Board in Bermudez-Cota reasoned that Pereira involved a "distinct set of facts," which did not include a subsequent notice of hearing. According to the Board, this could remedy the defective charging document by providing the time and place of the hearing. The Board found it important that the Supreme Court in Pereira did not "invalidate the alien's underlying removal proceedings" or suggest that proceedings "should be terminated."⁵ Instead, the Supreme Court remanded the case in Pereira for further proceedings. Again, there is no effort made by the Board to ground its decision about jurisdiction in Pereira itself or the governing statute.

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Bermudez-Cota has been roundly criticized for relying on circuit court decisions embracing a "two-step" notice process which were issued before Pereira, and for relying on the federal regulation governing NTAs instead of the relevant statute that defines a proper NTA. In making its decision, the Board's reasoning appeared to hinge on the governing regulation and not the statute. See 8 C.F.R. § 1003.15(b) (2018) (noting the regulation does "not mandate that the time and date of the initial hearing must be included in [the charging document].") Despite rejection of the jurisdictional argument by the BIA in Bermudez-Cota, some immigration courts had already terminated proceedings based on Pereira. In addition, many federal district judges across the nation had dismissed indictments in the context of illegal reentry cases based on Pereira. These judges were persuaded that the expansive language of Pereira supported a defense allowed under § 1326 challenging the validity of the prior order of removal or deportation. Id., § 1326(d). At the time, the issue had yet to be considered by the various federal circuit courts of appeals.⁶

Following Bermudez-Cota, the Board next engaged in an extended discussion of Pereira in Matter of Mendoza-Hernandez and Capula-Cortes.⁷ Interestingly, this was an en banc decision that revealed a large split in the Board's understanding of Pereira. The majority of nine members dismissed the appeal, but seven members dissented. The issue in that case was whether a deficient NTA (without the time and place of the initial hearing) could be "perfected" by the subsequent service of a notice of hearing which specified the "notice requirements" of INA 239(a), thus triggering the "stop-time" rule in INA 240A(d)(1)(A). The slight majority of the Board held that the subsequent NOH "perfected" the defective NTA. This decision is striking in that it examines an issue closely aligned to Pereira, asking whether the cancellation of removal "stop-time" rule can be applied where (as in Pereira) there was no question of an initial defective NTA. In such a situation, it is not surprising that the majority had to go to great lengths to attempt to distinguish Pereira.

The Board began its decision by noting that three circuit courts had deferred to Bermudez-Cota's rejection of the jurisdictional argument.⁸ The Board then went on to discuss its pre-Pereira case Matter of Camillo and the various pre-Pereira circuit court cases affirming it.⁹ In reaching the conclusion that Pereira was distinguishable, the majority of the Board found that "no court has adopted the view of our dissenting colleagues in this case that the deficiency in a notice to appear that is missing the time and place of the initial removal proceeding cannot be remedied by a notice of hearing that includes that information."¹⁰

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The dissenting members' conclusion that Pereira is not distinguishable, and in fact forecloses the majority's holding that the "stop-time" rule can still apply where a defective NTA is somehow "perfected," is supported by the plain language of the statutory text. This was, in fact, the central theme of Justice Sotomayor's decision in Pereira. As noted by the dissent, "Congress provided clear and unambiguous language identifying the event that triggers the 'stop-time' rule—that is, service by the DHS of a 'notice to appear'...