Reading Pereira and Niz-chavez as Jurisdictional Cases

• Jurisdiction: United States,Federal
• Publication year: 2022
• Citation: Vol. 4 No. 1

Reading Pereira and Niz-Chavez as Jurisdictional Cases

Geoffrey A. Hoffman ^*

Abstract: The defective NTA problem has important ramifications for respondents in removal proceedings. Two recent Supreme Court decisions, Niz-Chavez v. Garland and Pereira v. Sessions, considered aspects of this issue. This article explores how these cases must be read jurisdictionally. It discusses how the defective NTA problem implicates the jurisdiction of the immigration court versus a mere "claims-processing" rule. Determination of this issue is crucial but yet to be determined by the Supreme Court. Lower courts have addressed it in conflicting ways. Arguments of those who resist a jurisdictional reading prioritize the implementing regulations over the governing statute, and characterize the defective NTA problem as a procedural claim incumbent on the respondent to raise and fully exhaust. Unfortunately, such an approach ignores the fact that DHS has the responsibility for drafting and filing the NTA. The article concludes with a discussion of potential remedies for respondents and the 1.6 million court backlog.

Introduction

The Notice to Appear (NTA) is the charging document prepared by the Department of Homeland Security (DHS) against an immigrant respondent. ¹ It must contain certain required information, including but not limited to the time and place of hearing. ² When properly filed with the immigration court, that act of filing initiates the court's jurisdiction. ³ Two recent Supreme Court cases have addressed the "defective NTA issue." ⁴ The first case is Pereira v. Sessions, and it stands for the proposition that a defective NTA missing the time and place of removal proceedings cannot be used to stop the time required for cancellation of removal claims. ⁵ The second, Niz-Chavez v. Garland, addressed a related issue, whether a subsequent notice of hearing from the court could perfect or cure the defective NTA. The high court found that such a notice of hearing, filed after a defective NTA, could not. ⁶

Jurisdiction is the starting place for any litigation. Therefore, it is surprising that confusion still persists concerning the jurisdictional effect of a line of Supreme Court cases with profound ramifications for immigration law. Pereira and its recent progeny Niz-Chavez are fascinating cases. Not merely because of what they say explicitly about what is or is not a valid NTA, but more importantly because of what they must mean. The recent attempt by the Board of Immigration Appeals (BIA) in Matter of Arambula-Bravo ⁷ to

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explain away any jurisdictional problem resonates well with DHS. However, the BIA has embraced an analysis of the statute and regulations that does not comport with Niz-Chavez. Before Arambula-Bravo, several immigration judges had granted termination under a jurisdictional reading of Pereira and Niz-Chavez. ⁸ Some circuit courts rejected the argument that jurisdiction was implicated, but others saw the issue through the lens of a claims-processing rule. ⁹ This article discusses the defective NTA problem as implicating the jurisdiction of the immigration court versus a claims-processing rule. ¹⁰ It also addresses the problems with prioritizing the implementing regulations over the governing statute, as well as characterizing the defective NTA problem as a procedural claim that must be raised by immigrants in proceedings, rather than as a problem for DHS, who are the ones who have the responsibility for drafting and filing the NTA in the first place. The article concludes with the issue of what potential remedies may exist for respondents in the event the crucial jurisdictional issue is finally decided in their favor. ¹¹

As soon as Pereira came down, some commentators immediately saw how the decision would impact the very jurisdictional foundations of the immigration court, and not just the "stop-time" rule relating to cancellation of removal. ¹² As I discussed in a prior article, there was much litigation about how Pereira affected a host of topics. ¹³ Some of those topics related to in absentia orders, voluntary departure, cancellation of removal, and jurisdiction. ¹⁴ Many of these issues now have been answered definitively. The Pereira stop-time rule, however, was interpreted narrowly and its full effect diminished by Matter of Bermudez-Cota, among other cases, where the Board embraced an argument by DHS that a subsequent notice of hearing could somehow "cure" or "perfect" a defective NTA. ¹⁵ Therefore, so the argument went, the "stop-time" rule still applied, but now the time should be interpreted as "stopped" by EOIR's (not DHS's) subsequent Notice of Hearing (NOH) and not by the invalid NTA. Such a strained reading, with its many-layered difficulties, ruled the day until the Supreme Court rejected such a creative approach in Niz-Chavez. Bermudez-Cota and other Board cases, such as Matter of Rosales Vargas and Rosales Rosales, also purported to reject any jurisdictional consequences from Pereira. ¹⁶

In Niz-Chavez, the "two-step" procedure for perfecting the defective NTA was brought into sharp relief and soundly rejected as not in conformity with the governing statute, specifically INA § 239(a), 8 U.S.C. § 1229(a). ¹⁷ That statutory provision is entitled "Initiation of Removal Proceedings," and requires, among other things, that the NTA have "the time and place at which the proceedings will be held." ¹⁸ As the high court found in Niz-Chavez, the interpretation of Pereira by the BIA and also several circuit courts flies in the face of the plain language of the statute. The Supreme Court homed in on the exact language of § 1229(a)(1), which explains that "written notice (in this section referred to as a 'notice to appear') shall be given . . . to the alien . . . specifying" the time and place of the hearing. Of importance to the high court

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was the indefinite article "a" in the statute, which mandates a single document comprising the NTA, not a series of documents or steps. The other relevant statutory section, 8 U.S.C. § 1229b(d)(1), similarly contains the indefinite article, and states that the stop-time rule is triggered "when the alien is served a notice to appear under section 1229(a)." The Court's analysis also referenced other statutory provisions in support of its conclusion that Congress could not have envisioned or intended for multiple or different notices to appear, but instead a single or unitary charging document to initiate proceedings. ¹⁹ However, neither Justice Sotomayor's decision in Pereira nor Justice Gorsuch's decision in Niz-Chavez directly addressed the elephant in the room; that is, whether the validity (or invalidity) of the NTA affects the jurisdiction of the immigration court's removal proceedings. Pereira's use of the term "narrow" to describe its own holding has been used as fodder for the argument that its decision should somehow be limited only to the issues presented. ²⁰ Unfortunately, the matter cannot be disposed of so quickly. Such a conclusion is not supported because "jurisdiction," as one of the most important concepts in any litigation, can be raised at any time: after the initiation of proceedings, on appeal, and even after a final decision is reached on the merits. ²¹ Furthermore, the argument that the Supreme Court somehow sub silentio discredited or rejected the jurisdictional argument by failing to raise it is belied by the Court's own precedent decisions. ²² In prior cases, the Court has made clear that there is no precedential effect that can be "read into" any "unaddressed jurisdictional defects" not addressed by a court. ²³

The Circuit Split Concerning How the Jurisdictional Issue Should Be Interpreted

There is now an interesting circuit court split as to how the jurisdictional issue should be analyzed after Pereira and Niz-Chavez. On the one hand, one group of circuits (the First, Third, Eighth, and Ninth) find that there is allegedly no jurisdictional problem with a defective NTA. ²⁴ In these courts' view, it is not a cause for termination or dismissal of removal proceedings before the immigration court. A paradigmatic case in this regard is Karingithi v. Whitaker, where the court of appeals rejected any reading of Pereira to confer a jurisdictional problem so long as an NOH is later sent to the respondent. ²⁵ The panel stated that its reading of the regulations was consistent with Matter of Bermudez-Cota. ²⁶ The panel also concluded that the Board's decision in Bermudez-Cota warranted deference and therefore should be followed. ²⁷ Of course, after Niz Chavez this two-step rationale can no longer stand and must be rejected. Nevertheless, the Ninth Circuit reaffirmed its prior outdated approach in United States v. Bastide-Hernandez, a case postdating Niz-Chavez, where it stated that "the regulation means what it says, and controls . . . [applying]

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Karingithi . . . jurisdiction of the immigration court vests upon the filing of [a notice to appear]. . . ." ²⁸

The Ninth Circuit, as well as the other circuits rejecting the jurisdictional argument, have attempted to hinge their reasoning on language found in the federal regulations. They provide that the time and place of hearing in the NTA is only required "when practicable" and thus, so the argument goes, these regulations somehow trump the Immigration and Nationality Act's (INA's) statutory requirements for a valid NTA. The BIA also seems to reason in this way in its new post-Niz-Chavez case addressing this issue: Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). In that case, the Board first recognized that it could no longer rely on Bermudez-Cota's rationale embracing the "two-step" approach, but did cite that prior case for several propositions, including that Pereira was "narrow" and only related to stop-time and furthermore that the Supreme Court did not address jurisdiction. The BIA also cited Matter of Rosales Vargas and Rosales Rosales for the observation...