Thursday, May 23, 2019
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Ninth Circuit:
Majority Says Defective Deportation Notice Can’t Be Cured
Dissenter Asserts Opinion Misinterprets U.S. Supreme Court Decision
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday decided, in a 2-1 decision, that a man whose eligibility for relief from deportation proceedings has been dangling for 11 years—ever since he attempted to smuggle an illegal alien into the United States—does qualify for “cancellation of removal,” holding that once a defective notice to appear was sent to him, it could not be cured.
District Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation, wrote the majority opinion, in which Senior Circuit Judge Dorothy W. Nelson joined. Judge Consuelo M. Callahan dissented.
The petitioner, Isaias Lorenzo Lopez, sought review of a decision by the Board of Immigration Appeals (“BIA”) denying his application for a lifting of deportation efforts. Such relief is contingent upon seven years of continuous residency in the United States.
Under the “stop-time rule,” a notice to appear in Immigration Court in connection with deportation efforts stops the clock running on the seven-year period. When Lopez was served with such a notice in March 2008, he had been admitted as a resident for less than seven years.
High Court Decision
Korman’s opinion declares that the March notice was invalid under the U.S. Supreme Court’s decision last year in Pereira v. Sessions because it did not specify a time, date, and place to appear and, it holds, an April 2008 notice that does contain those advisements cannot cure the faulty notice.
The Office of U.S. Attorney argued the applicability of the Ninth Circuit’s 2009 decision in Popa v. Holder, 571 F.3d 890 (9th Cir. 2009). There, Circuit Judge Carlos Bea wrote:
“The sole issue in this appeal is whether the government is permitted to provide notice of removal proceedings to an alien using a two-step process: (1) sending a Notice to Appear in which the government states that the date and time of the hearing will be provided at a later time and (2) later sending notice of the hearing with the date and time of the hearing….
“We hold the government is permitted to use the two-step process.”
Korman said that Popa was “effectively overruled” by Pereira. In Pereira, the Supreme Court interpreted 8 U.S.C. § 1229(a) and, the visiting judge proclaimed, its construction of that statute precludes a resort to Popa.
Wording of Statute
He wrote:
“The Attorney General charts his course around the statute by arguing that a Notice of Hearing may cure a defective Notice to Appear. The phrase ‘notice of hearing’—or anything resembling it—does not appear in the law. Rather, the statute refers to a ‘notice to appear’ and a ‘notice of change in time or place of proceedings’ and delineates when each document may be issued and what it must contain….Nevertheless, the Attorney General counters that the law is silent on whether the required notice must consist of one document or if it may consist of multiple documents that collectively contain the necessary information.
“Far from silent, the statute speaks clearly: residence is terminated ‘when the alien is served a notice to appear.’ 8 U.S.C. § 1229b(d)(l) (emphasis added). The use of the singular indicates that service of a single document—not multiple—triggers the stop-time rule.”
Summing up, Korman said:
“We hold that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing. The law does not permit multiple documents to collectively satisfy the requirements of a Notice to Appear. Thus. Lorenzo never received a valid Notice to Appear and his residency continued beyond 2008. Accordingly, he has resided in the United States for over seven years and is eligible for cancellation of removal.”
Callaghan’s Dissent
Callaghan wrote:
“I agree with the majority that the United States Supreme Court’s opinion in Pereira v. Sessions…incontrovertibly establishes that for a notice to appear to trigger the ‘stop-time rule,’ the noncitizen must be provided with the time and place of the removal proceedings. However. I do not read Pereira as holding that the notice of the time and place must be provided in a single document. Rather, I read Pereira as not prohibiting the Government from supplementing a deficient notice to appear by subsequently providing notice of the time and place of the removal proceedings, with the consequence that the stop-time rule is triggered upon receipt of the supplemental notice.”
She pointed out that the petitioner in Pereira (Wescley Fonseca Pereira), unlike Lopez, was not served with a notice of time, place and location of a hearing until after he had continuously resided in the United States for even years. Accordingly, she said, the high court had no occasion to determine if the required advisements could be contained in more than one document.
“The majority reads too much into the ‘use of the singular’ in § 1229b,” she maintained. “Title 1 U.S.C. § 1 states that “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise– words importing the singular include and apply to several persons, parties or things....”
Callaghan added:
“There can be no doubt that Lorenzo had actual notice of the time and place of his removal proceedings well before his June 27, 2018 hearing. The statute’s use of the singular is too slender a reed to support the majority’s insistence that all the criteria in § 1229(a)(1) must be contained in a single document.”
The case is Lorenzo Lopez v. Barr, 15-72406.
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