15‐3269 Banegas Gomez v. Barr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2018
(Argued: February 19, 2019 Decided: April 23, 2019)
No. 15‐3269
––––––––––––––––––––––––––––––––––––
JOSE JAVIER BANEGAS GOMEZ, AKA JOSE BANEGAS
Petitioner,
‐v.‐
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL
Respondent.
Before: LIVINGSTON, Circuit Judge, and FAILLA, District Judge.
Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York, sitting by designation. Judge John M. Walker, Jr., originally assigned to the panel, recused himself from consideration of this matter. The two remaining members of the panel, who are in agreement, have decided this case in accordance with Second Circuit Internal Operating Procedure E(b). See 28 U.S.C. § 46(d); see also United States v. Desimone, 140 F.3d 457, 458 (2d Cir. 1998).
Petitioner Jose Javier Banegas Gomez (“Banegas Gomez”), a native and citizen of Honduras, seeks review of a September 14, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming an April 9, 2015 decision of an Immigration Judge (“IJ”) finding Banegas Gomez removable and denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jose Javier Banegas Gomez, No. A 057 410 254 (B.I.A. Sept. 14, 2015), aff’g No. A 057 410 254 (Immig. Ct. Hartford, CT Apr. 9, 2015). We conclude that Banegas Gomez’s conviction for first‐degree assault under Connecticut law is an aggravated felony and that the invalidation of 18 U.S.C. § 16(b) in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), does not necessitate a remand to the BIA for consideration of this issue. This conclusion restricts our review to only constitutional errors or errors of law, of which we see none in the agency’s decision. Lastly, we reject Banegas Gomez’s argument that Pereira v. Sessions, 138 S. Ct. 2105 (2018), is properly read to mean that the Immigration Court that ordered his removal lacked jurisdiction because the Notice to Appear (“NTA”) that was served on him failed to specify the time or date of hearing, even though a Notice of Hearing containing the requisite information subsequently issued. Accordingly, the petition for review is DENIED.
FOR PETITIONER: GLENN L. FORMICA, Elyssa N. Williams, Formica Williams, P.C., New Haven, CT, for Petitioner.
FOR RESPONDENT: KEITH I. MCMANUS, Joseph H. Hunt, Jessica E. Burns, United States Department of Justice, Civil Division, Washington, DC, for Respondent.
DEBRA ANN LIVINGSTON, Circuit Judge:
Petitioner Jose Javier Banegas Gomez (“Banegas Gomez”), a native and
citizen of Honduras, seeks review of a September 14, 2015 decision of the Board
of Immigration Appeals (“BIA”) affirming an April 9, 2015 decision of an
Immigration Judge (“IJ”) deeming him removable and denying his application
for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Jose Javier Banegas Gomez, No. A 057 410 254 (B.I.A. Sept.
14, 2015), aff’g No. A 057 410 254 (Immig. Ct. Hartford, CT Apr. 9, 2015).
Banegas Gomez makes three challenges to the BIA’s decision: (1) that his
conviction for Connecticut first‐degree assault no longer constitutes an
“aggravated felony” or, at the very least, a remand to the BIA is necessary to
re‐evaluate the issue following the Supreme Court’s decision in Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), which invalidated 18 U.S.C. § 16(b) as void for
vagueness; (2) that the agency erred when it denied his claim for CAT relief; and
(3) that, under the reasoning of the Supreme Court in Pereira v. Sessions, 138 S. Ct.
2105 (2018), the omission of information regarding the time and date of his
hearing from his initial Notice to Appear (“NTA”) means that jurisdiction never
vested in the Immigration Court and thus that the proceedings against him must
be terminated.
We conclude that no remand is necessary to determine that Banegas
Gomez’s conviction for Connecticut first‐degree assault constitutes an
“aggravated felony,” as it fits within the definition of “crime of violence” in 18
U.S.C. § 16(a). And because Banegas Gomez’s removal is predicated on
commission of an aggravated felony, our jurisdiction is limited to constitutional
claims and questions of law. Ortiz‐Franco v. Holder, 782 F.3d 81, 86 (2d Cir.
2015). We see no such colorable claims in Banegas Gomez’s arguments as to the
agency’s decision to deny him CAT relief. And lastly, we see no basis for
reading Pereira—which dealt only with the “stop time” rule, see 138 S. Ct. at 2110,
which is not relevant to this case—to divest an Immigration Court of jurisdiction
whenever an NTA lacks information regarding a hearing’s time and date. We
thus join several of our sister circuits in allowing proceedings such as these to
proceed.
BACKGROUND
I. Factual Background1
Banegas Gomez was born in 1992 in Honduras. In 2004, he entered the
United States as a lawful permanent resident on a petition from his stepmother, a
United States citizen. Six years later, in November 2010, Banegas Gomez was
arrested in Connecticut in connection with a stabbing. In May 2011, he was
convicted in Connecticut Superior Court of first‐degree assault with intent to
The factual background presented here is derived from materials contained in 1
the Certified Administrative Record (“CAR”).
cause serious physical injury as well as conspiracy to commit first‐degree assault.
He was sentenced to twelve years in prison, “suspended after 6 years, [and]
probation [for] 5 years.” Certified Administrative Record (“CAR”) 126.
II. Procedural History
On May 8, 2013, Banegas Gomez was served with an NTA. The United
States Department of Homeland Security (“DHS”) alleged that he was removable
due to his Connecticut convictions, which it deemed aggravated felonies, as
defined in 8 U.S.C. § 1101(a)(43), which includes “crimes of violence” pursuant to
18 U.S.C. § 16 in its definition of such felonies. See 8 U.S.C. § 1001(a)(43) (“The
term ‘aggravated felony’ means . . . a crime of violence (as defined in section 16
of Title 18, but not including a purely political offense) for which the term of
imprisonment [is] at least one year . . . .” (internal footnote omitted)); see also id.
§ 1127(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any
time after admission is deportable.”).
Although Banegas Gomez was imprisoned at the time, he appeared before
an IJ via teleconference and through his attorney he denied the charges of
removability. He also submitted an application for asylum, though ultimately it
was determined that he was eligible only for deferral of removal under the
Convention against Torture. A hearing was held on that claim in April 2015,
during which both Banegas Gomez and his father testified in support of his
claim. Banegas Gomez argued that he feared torture if returned to Honduras
due to the murders of several of his family members, specifically two of his
uncles as well as possibly an aunt. The first uncle was killed in a pool club on
Christmas Eve in 2009, and while Banegas Gomez does not know the reason, he
heard from others that an argument preceded the murder. Banegas Gomez’s
father testified that his brother was shot with no warning and did not previously
know the man who shot him. Banegas Gomez’s other uncle was killed in 2012,
and both he and his father believe it was related to drug cartels. Banegas
Gomez also testified that he feared both gang‐related violence and police
detention due to his tattoos—none of which are gang‐related—but which might
cause him to be seen as a gang member.
On April 9, 2015, the IJ issued a decision denying Banegas Gomez’s CAT
claim and sustaining the charges of removability against him. The IJ first
determined that assault in the first degree, in violation of Section 53i‐59(a)(1) of
the Connecticut General Statutes, is an “aggravated felony crime of violence
under 18 U.S.C. 16(b).” CAR 58. This is because “[t]here is no doubt that to
commit this offense . . . serious physical injury must happen to the victim.” Id.
The IJ then denied Banegas Gomez’s CAT claim, concluding that despite the
evidence that several of his family members were killed in Honduras there is “no
evidence that the killings of his two uncles are somehow related” and that he
would be endangered based on family affiliation. Id. at 62. As to Banegas
Gomez’s fear of gangs in Honduras, the IJ determined that any fear of torture is
speculative and that, regardless, “there is no evidence that any torture by gangs
would be with the acquiescence or willful blindness of government officials.”
Id. Lastly, the IJ rejected Banegas Gomez’s claim that he might be targeted by
the police for his tattoos, concluding that the police would know the difference
between gang‐related and non‐gang‐related tattoos and that there is insufficient
evidence that, even if he were arrested, the treatment he would receive in a
Honduran prison would amount to torture. For these reasons, the IJ ordered
Banegas Gomez removed to Honduras.
Banegas Gomez appealed. On September 14, 2015, the BIA issued a
decision affirming “the Immigration Judge’s conclusion that the respondent did
not present sufficient evidence to establish that it is ‘more likely than not’ the
respondent would be tortured upon his removal either at the hands of the
government of Honduras, or with its acquiescence,” either because of his tattoos
or the deaths of his family members. Id. at 3–4.
The BIA dismissed Banegas Gomez’s appeal, and this petition followed.
Prior to assessing his claims, we note that despite what was at the time a pending
motion in this Court for a stay of removal, Immigration and Customs
Enforcement (“ICE”) removed Banegas Gomez to Honduras in April 2016.
However, he subsequently re‐entered the country illegally and is now serving a
30‐month sentence ordered by a judge in the United States District Court for the
Southern District of Texas for illegal re‐entry in violation of 18 U.S.C. § 1326.
DISCUSSION
I
Banegas Gomez first argues that, following the Supreme Court’s decision
in Sessions v. Dimaya, his Connecticut convictions for first‐degree assault and
conspiracy to commit first‐degree assault can no longer be categorized as
aggravated felonies and thus he is not removable. In the alternative, he
contends that this Court should not decide the issue and should instead send his
petition back to the BIA for it to determine whether either of his convictions can
be categorized as such. We disagree.
Whether a conviction is an aggravated felony is a question of law that we
review de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). The
Immigration and Nationality Act (“INA”) categorizes a “crime of violence” as an
aggravated felony. 8 U.S.C. § 1101(a)(43)(F). The INA defines a “crime of
violence” with reference to 18 U.S.C. § 16. Id. Section 16, in turn, contains two
definitions of a crime of violence: “(a) an offense that has as an element the use,
attempted use, or threatened use of physical force against the person or property
of another,” or “(b) any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.” 18 U.S.C. § 16.
In 2018, the Supreme Court held that the second subsection, § 16(b), is
impermissibly vague in violation of the Due Process Clause of the Constitution.
See Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018). Therefore, post‐Dimaya, a
conviction can be categorized as a crime of violence—and thus for this reason an
aggravated felony—only if it falls within § 16(a)’s ambit, i.e., if it can be described
as “an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” This subsection is
often referred to as the “elements clause.”
Banegas Gomez is correct that the agency relied solely on § 16(b) when
concluding that his Connecticut conviction for first‐degree assault constitutes a
crime of violence. See CAR 58 (“[The] Court finds that DHS has clearly met its
burden of proof that this is an aggravated felony crime of violence under 18
U.S.C. § 16(b).”). However, we reject Banegas Gomez’s suggestion that we must
remand his case to the agency for this reason. Although the agency relied on
§ 16(b), we conclude that Banegas Gomez’s conviction for first‐degree assault
under Connecticut law is properly categorized as a crime of violence under
§ 16(a) as well. Remand is thus unnecessary.
Because we review the agency’s interpretations of federal and state
criminal laws—including 18 U.S.C. § 16 and Connecticut criminal law—de novo,
Jobson v. Ashcroft, 326 F.3d 367, 371 (2d Cir. 2003), this is not a situation where we
would benefit from the agency’s reasoning on remand. Cf. Negusie v. Holder, 555
U.S. 511, 517 (2009); and Rotimi v. Gonzales, 473 F.3d 55, 58 (2d Cir. 2007). In such
circumstances, nothing “‘require[s] that we convert judicial review of agency
action into a ping‐pong game’ and . . . remand is not required when it ‘would be
an idle and useless formality.’” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,
401 (2d Cir. 2005) (quoting NLRB v. Wyman‐Gordon Co., 394 U.S. 759, 766 n.6
(1969)).
The Connecticut first‐degree assault statute has a number of subsections,
but Banegas Gomez pled guilty to conduct under the first, which provides that
“[a] person is guilty of assault in the first degree when: (1) With intent to cause
serious physical injury to another person, he causes such injury to such person or
to a third person by means of a deadly weapon or a dangerous instrument.”
Conn. Gen. Stat. § 53a‐59(a)(1). “Serious physical injury” is defined as “physical
injury which creates a substantial risk of death, or which causes serious
disfigurement, serious impairment of health or serious loss or impairment of the
function of any bodily organ.” Id. § 53a‐3(4). “Dangerous instrument” is
defined, in relevant part, as “any instrument, article or substance which, under
the circumstances in which it is used or attempted or threatened to be used, is
capable of causing death or serious physical injury.” Id. § 53a‐3(7).
“In determining whether [Banegas Gomez’s] conviction falls within the
ambit of § 16, the statute directs our focus to the ‘offense’ of conviction. . . . This
language requires us to look to the elements and the nature of the offense of
conviction, rather than to the particular facts relating to petitionerʹs crime.”
Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). This method is called the “categorical
approach.” See Santana v. Holder, 714 F.3d 140, 143 (2d Cir. 2013). When a state
statute, like Connecticut’s for first‐degree assault, contains subdivisions, we use
what is called the “modified categorical approach,” by which we may “ascertain
the elements of the offense from such materials as the indictment, a plea
agreement, or a plea colloquy”—though, again, we are not to look to the facts of
the underlying conviction. Villanueva v. United States, 893 F.3d 123, 128 (2d Cir.
2018). “Under the plain language of § 16(a), one of the elements of a crime of
violence must be ‘the use, attempted use, or threatened use of physical force
against the person or property of another.’” Blake v. Gonzales, 481 F.3d 152, 156
(2d Cir. 2007) (quoting 18 U.S.C. § 16(a)).
Although this Court has not addressed Connecticut’s first‐degree assault
statute in the context of § 16(a), we have concluded that it is a “violent felony”
for purposes of the Armed Career Criminal Act (“ACCA”) and its identically
worded “elements clause.” See Villanueva, 893 F.3d at 132. In Villanueva, we
rejected the argument that because the requisite serious physical injury under
Connecticut’s statute can be achieved by use of a “substance” such as poison, the
statute does not require the force necessary to constitute a “violent felony.” Id.
at 128. We concluded that attempts such as these, to exclude from the concept
of physical force actual or threatened harm inflicted by poison or other
“substances,” reflect an outdated conception of force. Id. at 130. As the
Supreme Court stated in United States v. Castleman, “the knowing or intentional
causation of bodily injury necessarily involves the use of physical force.” 572
U.S. 157, 169 (2014). Serious physical injury caused by a dangerous substance
thus falls squarely within the definition of force “because the relevant force is the
impact of the substance on the victim, not the impact of the user on the
substance.” Villanueva, 893 F.3d at 129 (emphasis added); cf. Stokeling v. United
States, 139 S. Ct. 544, 554 (2019) (“[F]orce is ‘capable of causing physical injury’
within the meaning of Johnson when it is sufficient to overcome a victim’s
resistance.”).
Although Castleman was interpreting a different statute’s use of “force,”
we have incorporated its reasoning into our analysis of various criminal statutes
when employing the categorical approach. See, e.g., United States v. Hill, 890
F.3d 51, 58–59 (2d Cir. 2018) (interpreting 18 U.S.C. § 924(c)(3)(B)). Therefore, as
we concluded in Villanueva, even if a defendant can commit first‐degree assault
in Connecticut by means of poison, this nonetheless encompasses the requisite
force. See 893 F.3d at 129–30. And to the extent Banegas Gomez hopes to rest
his argument on our opinion in United States v. Chrzanoski, 327 F.3d 188 (2d Cir.
2003), it relied on “an understanding of the use of force that has been abrogated
by the Supreme Court’s decision in Castleman.” Villanueva, 893 F.3d at 130; see
also Hill, 890 F.3d at 60.
Furthermore, the use of ACCA case law to interpret § 16(a), and vice versa,
is widely accepted by our Court and others. See, e.g., Johnson v. United States,
559 U.S. 133, 140 (2010) (observing how § 16 is “very similar” to the elements
clause under § 924(e)(2)(B)(i)). In Villanueva itself, this Court “accept[ed]
Villanueva’s premise that ‘crime of violence’ in subsection 16(a) is the equivalent
of ‘violent felony’ in subsection 924(e).” 893 F.3d at 130. We thus conclude
that Villanueva’s determination that first‐degree assault under Connecticut law
has as an element the use of force under ACCA is persuasive as we determine
whether this provision fits within § 16(a). See Stuckey v. United States, 878 F.3d
62, 68 n.9 (2d Cir. 2017) (“[T]he identical language of the elements clauses of 18
U.S.C. § 16(a) and § 924(e)(2)(B)(i) means that cases interpreting the clause in one
statute are highly persuasive in interpreting the other statute.”)
Connecticut General Statute § 53a‐59(a)(1) requires that a defendant cause
“serious physical injury” to the victim by means of a deadly weapon or
dangerous instrument. Such a crime appears on its face to involve the use of
“violent” physical force, as required by Johnson. 559 U.S. at 140. Furthermore,
Villanueva clarifies that just because the physical injury under Connecticut law
may be caused by means of a dangerous instrument that is a substance, such as
poison, this does not mean that the crime does not require the use of “physical
force.” See 893 F.3d at 128‐29. Accordingly, we see no reason not to apply the
reasoning of Villanueva and we conclude that Banegas Gomez’s conviction falls
squarely within the definition of a crime of violence under § 16(a).
II
Because Banegas Gomez was ordered removed on account of an
aggravated felony, our jurisdiction to review the agency’s denial of CAT relief is
limited to constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C),
(D); Ortiz‐Franco, 782 F.3d at 86. The likelihood of a future event (such as that
an individual will be subject to harm) is a finding of fact, Hui Lin Huang v. Holder,
677 F.3d 130, 134 (2d Cir. 2012), which we generally lack jurisdiction to review in
a petition from a criminal alien, Ortiz‐Franco, 782 F.3d at 86.
To qualify for CAT relief, Banegas Gomez was required to show a
likelihood of torture in his particular circumstances. 8 C.F.R. §§ 1208.16(c)(2),
1208.17(a); Mu‐Xing Wang v. Ashcroft, 320 F.3d 130, 143–44 (2d Cir. 2003). Given
the lack of evidence that individuals with non‐gang‐related tattoos, like Banegas
Gomez, were targeted for intentional harm by gangs or Honduran authorities, or
that the petitioner’s family was targeted for any reason, the agency did not
commit legal error in concluding that his fear of torture was too speculative to
warrant relief. See Savchuck v. Mukasey, 518 F.3d 119, 124 (2d Cir. 2008)
(upholding agency’s conclusion that CAT claim resting on a chain of unsupported
assumptions was too speculative to warrant relief); Jian Xing Huang v. U.S. INS,
421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support in the record . . .
[an asylum applicant’s] fear is speculative at best.”). Banegas Gomez testified
that two of his friends, who also have non‐gang‐related tattoos, were temporarily
detained after being deported to Honduras. But the reason for their detention is
unclear, and Banegas Gomez did not testify that they were tortured. The same
holds true for Banegas Gomez’s testimony about the killings of his uncles.
Given that the evidence presented demonstrated no connection between the two
killings, the agency committed no legal error in concluding that the killings were
not shown to be based on family affiliation and instead were “emblematic of the
high level of murder in Honduras.” SPA 12.
Moreover, the agency did not commit legal error in concluding that even if
Banegas Gomez were to be detained by Honduran authorities, harsh detention
conditions alone would not constitute torture. See Pierre v. Gonzales, 502 F.3d
109, 111 (2d Cir. 2007) (noting that to constitute torture, substandard detention
conditions must be extreme and must be “inflicted by government actors (or by
others with government acquiescence) intentionally rather than as a result of
poverty, neglect, or incompetence”). Banegas Gomez’s argument that prison
conditions in Honduras amount to torture fails under this Court’s decision in
Pierre: he points to evidence of overcrowding and harsh conditions, Pet.’s Br. at
15–16, which the agency acknowledged, but he does not point to any evidence
that these harsh conditions are intentionally imposed, rather than attributable to
a lack of resources. See Pierre, 502 F.3d at 111.
Finally, while legal error may occur where the agency “totally overlook[s]”
or “seriously mischaracterize[s]” evidence, that was not the case here. Mendez v.
Holder, 566 F.3d 316, 323 (2d Cir. 2009). The agency acknowledged the generally
violent conditions in Honduras, as well as evidence of police corruption and
harsh prison conditions, but concluded that Banegas Gomez did not establish that
he would more likely than not be tortured by the government or with
government acquiescence. This factual determination is beyond the scope of
our review. Ortiz‐Franco, 782 F.3d at 91.
III
Banegas Gomez raises a new argument in his supplemental briefing, that
his removal proceedings must be terminated because his NTA did not include
the time and date for his initial hearing. He argues that this defect means that
the NTA was inadequate to vest jurisdiction in the Immigration Court. Banegas
Gomez relies on Pereira v. Sessions, 138 S. Ct. 2105 (2018), which considered
whether service of an NTA omitting reference to the time or place of the initial
hearing triggers the INA’s “stop time” rule for cancellation of removal. Id. at
2113–14; see also 8 U.S.C. § 1229b(d)(1). The Supreme Court held in Pereira that
because § 1229b(d)(1)’s stop time rule explicitly provides that it is triggered by
service of an NTA “under section 1229(a),” 138 S. Ct. at 2114, which itself
specifies that an NTA state the time and place at which proceedings will be held,
the INA unambiguously requires an NTA to include such information to trigger
the stop time rule and cut off an alien’s accrual of physical presence or residence
for the purposes of qualifying for cancellation. Id. Like several of our sister
circuits, and for the reasons set out below, we conclude that Pereira’s
self‐described disposition of this “narrow question,” id. at 2110, is not properly
read to void jurisdiction in cases in which an NTA omits a hearing time or place.
See Karingithi v. Whitaker, 913 F.3d 1158, 1162 (9th Cir. 2019); Hernandez‐Perez v.
Whitaker, 911 F.3d 305, 314–15 (6th Cir. 2018). Accordingly, we reject Banegas
Gomez’s arguments to the contrary.
Section 1229a of Title 8 provides that “[a]n immigration judge shall
conduct proceedings for deciding the inadmissibility or deportability of an
alien.” And § 1229, entitled “[i]nitiation of removal proceedings,” describes the
written notice to be given to an alien—a “notice to appear”—as containing a
variety of pieces of information, such as the “nature of the proceedings,”
“conduct alleged to be in violation of the law,” and that the “alien may be
represented by counsel.” Id. § 1229(a)(1). It also requires that such NTAs
provide “[t]he time and place at which the proceedings will be held.” Id. “The
statutory text does not, however, explain when or how jurisdiction vests with the
immigration judge—or, more specifically, denote which of the several
requirements for NTAs listed in § 1229(a)(1) are jurisdictional.”
Hernandez‐Perez, 911 F.3d at 313. Section 1229 in fact “says nothing about the
Immigration Court’s jurisdiction.” Karingithi, 913 F.3d at 1160.
The Attorney General has promulgated regulations governing removal
proceedings that do address when jurisdiction vests in the Immigration Court.
These regulations provide that “[j]urisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document is filed with the
Immigration Court by the Service.” 8 C.F.R. § 1003.14(a). The regulations
define a “charging document” as “the written instrument which initiates a
proceeding before an Immigration Judge.” Id. § 1003.13. The NTA is included
among the enumerated examples of charging documents. Notably, the
regulations require that an NTA contain the time, date, and place of a hearing
only “where practicable.” Id. § 1003.18(b) (emphasis added). They direct the
Immigration Court to schedule the hearing and provide notice when the NTA
does not contain it in the first instance. See id.
Relying on Pereira, Banegas Gomez argues that because the NTA he
received did not provide a time and date as specified in 8 U.S.C. §1229(a)(1), the
NTA was “deprive[d] . . . of its essential character” and thus was not an NTA, or
charging document, at all. See Pereira, 138 S. Ct. 2105 at 2116–17 (internal
citation omitted). However, Banegas Gomez’s reliance on Pereira is misplaced.
At the outset, we note the care taken by the Pereira Court to emphasize the
narrow scope of its holding. See, e.g., id. at 2113. The result in Pereira was
based on the intersection of two statutory provisions, one of which, addressing
the stop time rule, is not relevant to Banegas Gomez’s proceeding at all. Thus,
the latter stop time provision—§ 1229b(d)(1)—explicitly provides that an alien’s
period of continuous physical presence for purposes of eligibility for cancellation
is “deemed to end . . . when the alien is served a notice to appear under section
1229(a).” Id. at 2109 (emphasis added) (quoting 8 U.S.C. § 1229b(d)(1)(A)). The
Pereira Court concluded that § 1229b(d)(1)’s reference to “under” was “the glue
that bonds the stop‐time rule to [§ 1229(a)’s] substantive time‐and‐place
requirements.” 138 S. Ct. at 2117. But contrary to Banegas Gomez’s claim, no
such statutory glue bonds the Immigration Court’s jurisdiction to § 1229(a)’s
requirements.
This conclusion regarding the statutory text is consistent with the
regulations promulgated by the Attorney General. The agency regulations do
not refer to § 1229(a)(1)’s requirements when defining what an NTA is for
purposes of vesting jurisdiction in the Immigration Court. See 8 C.F.R.
§ 1003.13; see also id. § 1003.15. Nor do they require that an NTA contain the
time, date, or place of a hearing, except “where practicable.” See id. § 1003.18(b)
(emphasis added). Banegas Gomez’s argument from Pereira that jurisdiction
does not vest in the Immigration Court unless an NTA includes the time and
place of hearing “would render meaningless [these regulations’] command that
such information need only be included ‘where practicable.’” Karingithi, 913
F.3d at 1160. Notably, moreover, Pereira itself did not question whether
jurisdiction had attached in connection with the proceedings at issue there, even
though had its holding applied as Banegas Gomez contends, “there also would
not have been jurisdiction in Pereira . . . .” Hernandez‐Perez, 911 F.3d at 314.
Our conclusion that Pereira is inapposite is reinforced by the BIA’s
precedential opinion addressing that decision. See In re Bermudez‐Cota, 27 I. &
N. Dec. 441 (B.I.A. 2018). In Bermudez‐Cota, the BIA determined that “[t]he
regulation [vesting jurisdiction] 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. Furthermore, the
regulation listing what “must be contained in a notice to appear[] does not
mandate that the time and date of the initial hearing must be included in that
document.” Id. Instead, the BIA concluded that “a notice to appear that does
not specify the time and place of an alien’s initial removal hearing vests an
Immigration Judge with jurisdiction over the removal proceedings . . . so long as a
notice of hearing specifying this information is later sent to the alien.” Id. at 447
(emphasis added). The BIA’s interpretation does not conflict with the INA and
is consistent with the regulations. We agree with the BIA, moreover, that Pereira
is not reasonably read to pronounce the broad jurisdictional rule for which
Banegas Gomez contends.2
In this case, Banegas Gomez’s May 2013 NTA did not specify the time and
date of his initial hearing. However, Banegas Gomez received a hearing notice
in June 2013 providing that his initial hearing would take place on August 1,
2013, at 8:30 a.m. He appeared at that hearing, as well as three subsequent
2 As the Sixth Circuit recognized in Hernandez‐Perez, “importing Pereira’s holding on the stop‐time rule into the jurisdictional context would have unusually broad implications.” 911 F.3d at 314. The Supreme Court itself noted that during the three years preceding its decision in Pereira, “almost 100 percent of [NTAs] omit[ted] the time and date of the proceeding.” 138 S. Ct. at 2111. We do not believe the Supreme Court would have deemed its holding “narrow” if Pereira had the far‐reaching jurisdictional consequences Banegas Gomez’s reading of that decision would portend.
hearings in 2014 and 2015. We conclude that an NTA 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. The Immigration
Court thus had jurisdiction when it ordered Banegas Gomez removed in April
2015.
* * *
Because we see no reason to vacate the agency’s order of removal, we
decline to address Banegas Gomez’s arguments about whether, upon vacatur of
his removal order, he should be able to re‐enter the country as a lawful
permanent resident (given his earlier removal to Honduras).
CONCLUSION
For the foregoing reasons, Banegas Gomez’s petition for review is
DENIED. As we have completed our review, the stay of removal that the Court
previously granted in this petition is VACATED.