Goncalves Pontes v. Barr

938 F.3d 1

• Court: Court of Appeals for the First Circuit
• Decided: September 6, 2019
• Docket: 19-1053P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1053

DANIELSON MENDES GONCALVES PONTES,

Petitioner,

v.

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Selya, and Kayatta, Circuit Judges.

Jerome P. Mayer-Cantu, with whom Philip L. Torrey and Crimmigration Clinic, Harvard Law School, were on brief, for petitioner. Kari Hong, Ninth Circuit Appellate Program, Boston College Law School, on brief for Retired Immigration Judges et al., amici curiae. Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, Daniel E. Goldman and Brianne Whelan Cohen, Senior Litigation Counsels, Office of Immigration Litigation, were on brief, for respondent.

September 6, 2019 SELYA, Circuit Judge. The petitioner, Danielson Mendes

Goncalves Pontes, is a Cape Verdean national. He seeks judicial

review of a final order of the Board of Immigration Appeals (BIA)

ordering him removed to his homeland and denying his motions to

terminate removal proceedings. Addressing a challenge to the

manner in which immigration courts obtain jurisdiction over

removal proceedings — a challenge that has potentially broad

implications and that hinges on a question of first impression in

this circuit — we conclude that the Supreme Court's decision in

Pereira v. Sessions, 138 S. Ct. 2105 (2018), did not invalidate

the Notice to Appear (NTA) that served as the charging document in

the petitioner's removal proceedings. Based on this conclusion,

we hold that the petitioner's motions to terminate his removal

proceedings were properly denied and that the BIA's final order of

removal was in accordance with law. Accordingly, we deny the

petition for judicial review.

I. BACKGROUND

The petitioner was admitted to the United States and

became a lawful permanent resident on March 2, 2010. On December

20, 2013, he was convicted in a Massachusetts court of violating

a protective order. See Mass. Gen. Laws ch. 209A, § 7. In

September 2017, federal authorities served him with an NTA, which

informed him that he was being charged with removability based on

the protective-order conviction, see 8 U.S.C. § 1227(a)(2)(E)(ii),

- 2 - and directed him to appear in the immigration court in Boston on

an unspecified future date.

In January of 2018, the petitioner was taken into custody

by Immigration and Customs Enforcement agents and detained at a

Massachusetts correctional facility. The following month, he was

served with a notice of hearing, which directed him to appear in

the Boston immigration court on February 22, 2018, at 1:00 p.m.

The petitioner participated in that hearing remotely from the

correctional facility, and the proceedings were continued on March

1. At the March hearing, the petitioner submitted written

pleadings admitting the factual allegations of the NTA, conceding

removability as charged, and indicating his intention to apply for

relief from removal. Although the petitioner initially signaled

that he would seek cancellation of removal, see id. § 1229b, he

subsequently abandoned that avenue and sought only adjustment of

status, see id. § 1255, with a request in the alternative for

voluntary departure.

After a two-day hearing in July of 2018, the immigration

judge (IJ) denied the petitioner's application for relief

(including his request for voluntary departure) and ordered him

removed to Cape Verde. The IJ assumed, arguendo, that the

petitioner had satisfied the statutory eligibility requirements

for adjustment of status, see id. § 1255(i)(2), but found that

"significant adverse factors . . . weigh[ed] heavily against a

- 3 - discretionary grant of adjustment of status." This compendium of

adverse factors included restraining orders filed against him by

several women as a result of violent or threatening behavior.

The petitioner appealed to the BIA. While his appeal

was pending, the petitioner filed two alternative motions seeking

either to terminate removal proceedings or to remand to the

immigration court. In these motions, he contended that — under

Pereira, which the Supreme Court had decided some weeks before his

July hearing — his NTA was ineffective as a charging document

because it failed to include the date and time of the contemplated

removal hearing. Consequently, he posited, the immigration court

lacked jurisdiction over his case and the removal order was a

nullity.

On December 28, 2018, the BIA dismissed the petitioner's

appeal, adopting and affirming the IJ's decision. Denying the

petitioner's motions to terminate the proceedings or to remand,

the BIA determined that Pereira did not undermine the immigration

court's jurisdiction. In support, the BIA noted that it had

rejected essentially the same argument in an earlier case. See In

re Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018).

This timely petition for judicial review followed. See

8 U.S.C. § 1252.

- 4 - II. ANALYSIS

In this venue, the petitioner challenges only the BIA's

denial of his motions to terminate the proceedings. As framed,

his challenge rests on a purely legal question, and we review the

BIA's answers to questions of law de novo, "with some deference to

the agency's expertise in interpreting both the statutes that

govern its operations and its own implementing regulations."

Cabrera v. Lynch, 805 F.3d 391, 393 (1st Cir. 2015). Nevertheless,

"[i]f the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress." Chevron U.S.A.

Inc. v. NRDC, 467 U.S. 837, 842-43 (1984).

Here, the NTA used to commence the petitioner's removal

proceedings was issued pursuant to regulations promulgated by the

Attorney General specifically to govern the commencement of

removal proceedings under the Immigration and Nationality Act

(INA), 8 U.S.C. §§ 1101-1537. In relevant part, these regulations

provide that "[j]urisdiction vests, and proceedings before an

Immigration Judge commence, when a charging document is filed with

the Immigration Court." 8 C.F.R. § 1003.14(a). The term "charging

document," in turn, is defined to include "a Notice to Appear, a

Notice of Referral to Immigration Judge, and a Notice of Intention

to Rescind and Request for Hearing by Alien." Id. § 1003.13.

- 5 - The regulations also specify what information must be

contained in an NTA, such as the nature of the proceedings against

the alien, the legal authority for the proceedings, and the charges

brought. See id. § 1003.15. Of particular pertinence for present

purposes, the regulations state that an NTA need only provide the

time and place of the initial hearing "where practicable." Id.

§ 1003.18(b).

The petitioner targets these regulations, arguing that

they do not control the substantive requirements of an NTA. In

his view, Congress delineated those requirements in the INA itself,

see 8 U.S.C. § 1229(a), and the statute trumps the regulations.

This is critically important because, even though the substantive

requirements of section 1229(a) largely mirror those limned in the

regulations, there is at least one significant difference. Section

1229(a) states that the time and place of the removal hearing must

be specified in the notice, see id. § 1229(a)(1)(G)(i), but it

omits the qualifier that this must be done only "where

practicable." Analyzing this statutory provision in Pereira, the

Supreme Court held that "[a] putative notice to appear that fails

to designate the specific time or place of the noncitizen's removal

proceedings is not a 'notice to appear under section 1229(a).'"

138 S. Ct. at 2113-14.

The petitioner seizes upon this holding. He asserts

that because the NTA that initiated the removal proceedings against

- 6 - him did not include the date and time of his contemplated hearing,

it was defective as a charging document and, thus, was ineffectual

to commence removal proceedings. As a result, the petitioner says,

the immigration court never acquired jurisdiction over his removal

proceedings, and the agency's final order of removal is a nullity.

Refined to bare essence, the petitioner challenges the

Attorney General's authority to promulgate regulations governing

removal proceedings that contain substantive requirements for an

NTA different from those contained in section 1229(a). Given the

holding in Pereira, this challenge has a patina of plausibility —

but that patina dissolves upon further scrutiny.

We begin by acknowledging that Congress has granted the

Attorney General broad powers to "establish such regulations

. . . as the Attorney General determines to be necessary" for

implementation of the INA. 8 U.S.C. § 1103(g)(2). Of course,

that authority — though broad — may not be exercised "in a manner

that is inconsistent with the administrative structure that

Congress enacted into law." FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 125 (2000) (quoting ETSI Pipeline Project v.

Missouri, 484 U.S. 495, 517 (1988)). Thus, the efficacy of the

petitioner's challenge necessarily depends on whether Congress has

spoken unambiguously to this issue or, conversely, whether it has

left some room in which the Attorney General is entitled to

- 7 - exercise his discretion. See Smith v. Berryhill, 139 S. Ct. 1765,

1778 (2019); Chevron, 467 U.S. at 843-44.

With respect to removal proceedings, Congress has spoken

to the substantive requirements of an NTA only in section 1229(a).

This provision states in pertinent part that "[i]n removal

proceedings under section 1229a . . . , written notice (in this

section referred to as a 'notice to appear') shall be given . . .

to the alien." 8 U.S.C. § 1229(a)(1). It then provides that such

a notice must specify, inter alia, "[t]he time and place at which

the proceedings will be held." Id. § 1229(a)(1)(G)(i).

In Pereira, 138 S. Ct. at 2110, the Supreme Court

assessed section 1229(a) as it relates to the stop-time rule, see

8 U.S.C. § 1229b(d)(1), which governs the length of an alien's

continuous physical presence in the United States for the purpose

of an application for cancellation of removal. By its terms, the

stop-time rule applies once "the alien is served a notice to appear

under section 1229(a)." Id. Reading "the plain text of the

statute," the Pereira Court found congressional intent unambiguous

as to the "time and place" requirements of section 1229(a). 138

S. Ct. at 2114. The Court then held that section 1229b(d)(1) —

the stop-time rule — imports those same requirements. See id.

The petitioner's removal proceedings, though, were not

instituted under section 1229(a). The question before us, then,

is whether the requirements that section 1229(a) establishes for

- 8 - NTAs pertain to the commencement of removal proceedings generally.

The petitioner invites us to hold that "under Pereira, the phrase

'notice to appear' means the same thing throughout the [INA]" and,

therefore, the "time and place" requirements of section 1229(a)

override any regulation issued by the Attorney General in

implementing the INA. For the reasons explained below, we decline

the petitioner's invitation. In reaching this result, we answer

a question of first impression in this circuit. But we do not

break new ground: rather, we join a number of courts of appeals

that have rejected similar arguments. See Pierre-Paul v. Barr,

930 F.3d 684, 689-90 (5th Cir. 2019); United States v. Cortez, 930

F.3d 350, 363 (4th Cir. 2019), as amended (July 19, 2019); Nkomo

v. Att'y Gen., 930 F.3d 129, 133 (3d Cir. 2019); Ali v. Barr, 924

F.3d 983, 986 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d

101, 110 (2d Cir. 2019); Soriano-Mendosa v. Barr, 768 F. App'x

796, 802 (10th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158,

1160 (9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305,

314-15 (6th Cir. 2018).

To begin, the Pereira Court repeatedly emphasized the

isthmian nature of its holding, making pellucid that it addressed

only the "narrow question" before it: "If the Government serves

a noncitizen with a document that is labeled 'notice to appear,'

but the document fails to specify either the time or place of the

removal proceedings, does it trigger the stop-time rule?" 138 S.

- 9 - Ct. at 2110. And in concluding that such a document does not

animate the stop-time rule, the Court zeroed in on circumstances

specific to that rule.

For instance, the Court's reasoning rested in material

part on the stop-time rule's explicit reference to a notice to

appear "under section 1229(a)." See id. at 2117. Because the

stop-time rule did not otherwise set forth its own definition of

a notice to appear, the Court applied the "normal rule of statutory

construction that identical words used in different parts of the

same act are intended to have the same meaning." Id. at 2115

(quoting Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 571

(2012)). Similarly, the Court leaned on the specific purpose of

the stop-time rule in interpreting that rule's reference to a

notice to appear. See id.

We honor both the letter of the narrow holding in Pereira

and the spirit behind it in refusing to extend the Court's

reasoning to contexts other than those explicitly contemplated in

that decision. We add, moreover, that the extensive implications

of the petitioner's argument do not align with a narrow reading of

Pereira. Were we to adopt the petitioner's argument, the upshot

would be that every removal proceeding previously commenced by an

NTA devoid of time and place information would be vulnerable to a

post hoc challenge.

- 10 - We do not think that the Pereira Court meant to conceal

so significant a shifting of the tectonic plates within the

curtilage of its answer to the confined question that it

addressed.1 Under Pereira, then, the challenged regulations may

conflict with congressional intent (and therefore lack force) only

if they are somehow tied to the "time and place" requirements that

Congress delineated in section 1229(a) concerning written notice

to an alien. We turn to that inquiry.

We conclude that, in promulgating the challenged

regulations, the Attorney General has not strayed into forbidden

terrain. Unlike the stop-time rule, the regulations contain no

explicit reference to section 1229(a), see Hernandez-Perez, 911

F.3d at 313, and they are not "textually glued" to that provision,

Pierre-Paul, 930 F.3d at 690. Moreover, they contain their own

specification of the substantive requirements that an NTA must

satisfy, rendering inapposite the "normal rule of statutory

construction" upon which the Pereira Court relied in interpreting

the stop-time rule. See Karingithi, 913 F.3d at 1160.

Perhaps more importantly, the regulations do not concern

the written notice contemplated in section 1229(a). Section

1 Indeed, if the petitioner's argument were correct, then the immigration court would not have acquired jurisdiction over Pereira's removal proceedings and the Supreme Court would have had at hand a ready means for disposing of the case without pausing to delve into the intricacies of the stop-time rule.

- 11 - 1229(a) governs the information that must be provided to aliens,

that is, "the 'time' and 'place,' that would enable them 'to

appear' at the removal hearing in the first place." Pereira, 138

S. Ct. at 2115. After all, without that information, "the

Government cannot reasonably expect the noncitizen to appear for

his removal proceedings." Id.

The regulations are not concerned with the information

that is provided to an alien. Instead, they set forth the process

by which the immigration court obtains jurisdiction over a removal

proceeding. See 8 C.F.R. § 1003.14. The procedure established by

these regulations "'marks an agency internal boundary' that gives

the immigration courts, rather than [some other subset of the

agency], 'control over the docketing of cases.'" Cortez, 930 F.3d

at 361-62 (citation omitted) (quoting United States v. Arroyo, 356

F. Supp. 3d 619, 627-28 (W.D. Tex. 2018)). It follows, we think,

that the challenged regulations and section 1229(a) speak to

different audiences. On the one hand, the regulations deal with

the commencement of proceedings in the immigration court. The

statute, on the other hand, deals with notice to aliens of removal

hearings. See id. at 366; Karingithi, 913 F.3d at 1160. As to

the former, section 1229(a) says nothing about the rules of

procedure that govern case docketing, see Karingithi, 913 F.3d at

1160, so the Attorney General was "free to fashion [his] own rules

of procedure" in this regard, Hernandez-Perez, 911 F.3d at 313

- 12 - (quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543

(1978)).

To cinch the matter, the challenged regulations do not

simultaneously operate to implement section 1229(a). After all,

a "Notice to Appear" is referenced in 8 C.F.R. § 1003.13 as one

among three examples in a non-exhaustive list defining a "charging

document" for the purposes of 8 C.F.R. § 1003.14. Under the

regulations, then, the filing of a charging document such as a

Notice of Referral to Immigration Judge may establish the

immigration court's jurisdiction over a case, commencing removal

proceedings against an alien without resort to a Notice to Appear.

That ends this aspect of the matter. For these reasons

we hold that the challenged regulations are not in conflict either

with section 1229(a) or with the Court's decision in Pereira.

Relatedly, we hold that the Attorney General acted within the

proper ambit of his statutory authority in formulating distinct

substantive requirements applicable to NTAs for purposes of those

regulations. To be sure, there is "some common-sense discomfort

in adopting the position that a single document labeled 'Notice to

Appear' must comply with a certain set of requirements for some

purposes, like triggering the stop-time rule, but with a different

set of requirements for others, like vesting jurisdiction with the

immigration court." Hernandez-Perez, 911 F.3d at 314. But as we

have pointed out in a different context, "words are like

- 13 - chameleons; they frequently have different shades of meaning

depending upon the circumstances." United States v. Romain, 393

F.3d 63, 74 (1st Cir. 2004). And in all events, we do not ask

whether the Attorney General has chosen either the wisest or the

least convoluted course in implementing the INA but, rather,

whether he acted within the scope of his authority. We conclude

that he has.

We add a coda. The BIA has likewise concluded that an

NTA that is served without specification of the time and place of

the initial hearing may be sufficient to confer subject-matter

jurisdiction on an immigration court in removal proceedings. See

Bermudez-Cota, 27 I. & N. Dec. at 447. In addition, the BIA has

clarified its view that such a notice "vests an Immigration Judge

with jurisdiction over the removal proceedings" when a notice of

hearing is sent to the alien in advance of those proceedings. Id.2

As this interpretation is neither "obviously erroneous or

2 Bermudez-Cota also purported to resolve the question of whether a two-step process could satisfy section 1229(a), concluding that it could. See 27 I. & N. Dec. at 447. We do not reach this question, but we note that there has been some disagreement among the courts of appeals as to whether the plain text of section 1229(a), as interpreted in Pereira, permits such a conclusion. Compare Perez-Sanchez v. U.S. Att'y Gen., ___ F.3d ___, ___ (11th Cir. 2019) [No. 18-12578, slip. op. at 11] (finding that Pereira "foreclosed" Bermudez-Cota's conclusion that "an NTA under section 1229(a) is not deficient so long as a subsequent notice of hearing is later sent and specifies the time and location of the removal hearing"), with Pierre-Paul, 930 F.3d at 691 (endorsing the two-step process).

- 14 - inconsistent with the language of the regulation," we see no reason

to depart from the general rule that "an agency's interpretation

of its own regulations is entitled to great deference." Sidell v.

Comm'r, 225 F.3d 103, 109 (1st Cir. 2000). It follows that because

the petitioner's NTA complied with the regulations as reasonably

interpreted by the BIA, it was effective to confer jurisdiction

upon the immigration court.3

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we hold that the petitioner's motions to terminate his removal

proceedings were properly denied and that the BIA's final order of

removal was in accordance with law. Hence, the petition for

judicial review is

Denied.

3 Because we hold that the NTA in this case was not defective under the regulations, we do not address a question taken up by several of our sister circuits — whether agency regulations can govern the subject-matter jurisdiction of an immigration court without statutory authority or whether such regulations instead must be understood as claim-processing rules. See, e.g., Perez- Sanchez v. U.S. Att'y Gen., ___ F.3d ___, ___ (11th Cir. 2019) [No. 18-12578, slip op. at 18]; Cortez, 930 F.3d at 359-62; Pierre- Paul, 930 F.3d at 691-93; Ortiz-Santiago v. Barr, 924 F.3d 956, 963-64 (7th Cir. 2019), reh'g denied (July 18, 2019).

- 15 -