NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0532n.06
No. 18-4169
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ROSHNI ISHVARBHAI PATEL, ) Oct 17, 2019 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) )
BEFORE: BOGGS, BATCHELDER, and DONALD, Circuit Judges.
PER CURIAM. Roshni Ishvarbhai Patel petitions this court for review of an order of the
Board of Immigration Appeals (“BIA”) denying her motions to reopen her removal proceedings
sua sponte and to reconsider the denial of her prior motion to reopen. As set forth below, we
DENY in part and DISMISS in part Patel’s petition for review.
Patel, a native and citizen of India, entered the United States without inspection in August
2003 and was apprehended soon thereafter. Upon her apprehension, the Department of Homeland
Security (“DHS”) personally served Patel with a notice to appear in removal proceedings, charging
her with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States
without being admitted or paroled and ordering her to appear before an immigration judge in
Detroit, Michigan, at a date and time “to be set.” Patel later filed a change-of-address form with
the immigration court. On June 30, 2004, the immigration court mailed a notice of hearing to
Patel’s updated address, informing her that a hearing had been scheduled for 9:00 a.m. on August No. 18-4169, Patel v. Barr
24, 2004, at the specified address of the immigration court in Detroit, Michigan. When Patel failed
to appear for that hearing, the immigration judge ordered her removal to India.
Nearly nine years later, Patel filed a motion to reopen her removal proceedings and rescind
the in absentia removal order, asserting that she did not receive notice of the hearing. The
immigration judge denied Patel’s motion. On appeal, the BIA agreed with the immigration judge
that Patel had failed to present sufficient evidence to rebut the presumption of delivery that attaches
to a hearing notice sent by regular mail.
Almost four years after the BIA dismissed her appeal, Patel moved the BIA to reopen her
removal proceedings sua sponte and remand the proceedings to the immigration court to allow her
to file an application for a provisional unlawful-presence waiver. While Patel’s motion to reopen
was pending, the Supreme Court decided Pereira v. Sessions, 138 S. Ct. 2105, 2110 (2018),
holding that “[a] notice that does not inform a noncitizen when and where to appear for removal
proceedings is not a ‘notice to appear under [8 U.S.C.] section 1229(a)’ and therefore does not
trigger the stop-time rule” ending the noncitizen’s period of continuous physical presence in the
United States for purposes of cancellation of removal. In light of Pereira, Patel filed a
supplemental brief in support of her motion to reopen and a motion to reconsider the denial of her
prior motion to reopen, asserting that jurisdiction never vested with the immigration court because
the notice to appear served on her did not specify the date, time, and place of her removal
proceedings.
The BIA denied Patel’s motions to reopen and to reconsider. Following Pereira, the BIA
held 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 and meets the
requirements of [§ 1229(a)], so long as a notice of hearing specifying this information is later sent
to the alien.” Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 447 (B.I.A. 2018). Relying on
-2- No. 18-4169, Patel v. Barr
Matter of Bermudez-Cota, the BIA concluded that, because Patel was properly served with a notice
of hearing specifying the time, date, and place of the removal hearing, the notice to appear served
on her vested the immigration court with jurisdiction over her removal proceedings and sua sponte
reopening or reconsideration based on Pereira was therefore unwarranted. As for Patel’s motion
to reopen her removal proceedings sua sponte to allow her to apply for a provisional unlawful-
presence waiver, the BIA was “not persuaded that the feared consequences of [her] removal
warrant the exercise of [its] sua sponte authority.” This timely petition for review followed.
Patel asserts that the BIA erred in applying Matter of Bermudez-Cota, which she argues is
based on an erroneous and unreasonable interpretation of the statute and the regulations. This
court has already addressed the BIA’s decision in Matter of Bermudez-Cota. After examining the
relevant statutory and regulatory text and the Supreme Court’s decision in Pereira, we agreed with
the BIA’s interpretation, concluding that “jurisdiction vests with the immigration court where, as
here, the mandatory information about the time of the hearing is provided in a Notice of Hearing
issued after the [Notice to Appear].” Hernandez-Perez v. Whitaker, 911 F.3d 305, 313-15 (6th
Cir. 2018) (citation omitted); see Santos-Santos v. Barr, 917 F.3d 486, 489-91 (6th Cir. 2019).
This panel is bound by the court’s prior published decisions. See Salmi v. Sec’y of Health &
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).
Acknowledging our decisions in Hernandez-Perez and Santos-Santos, Patel contends that
she makes a new argument that was not addressed in those cases. Patel argues that 8 U.S.C.
§ 1229(a) does not allow the immigration courts to set the initial time and date of a hearing, only
to change the time and date after an initial time and date are provided in a notice to appear, and
that, to the extent that the regulations allow the immigration courts to set the initial time and date
of a hearing, they are “ultra vires to the statute.” But § 1229(a) does not make such a distinction
about who is authorized to set the initial time and date of a hearing and who is authorized to change
-3- No. 18-4169, Patel v. Barr
that time and date. The division of the roles played by the DHS and the immigration courts in
scheduling cases is instead set forth in the regulations. See 8 C.F.R. § 1003.18.
In essence, Patel maintains that “the statutory definition of a ‘notice to appear’ under
§ 1229(a) must control over the regulation where they conflict.” (Pet’r’s Br. 17). In Santos-Santos,
this court recognized that “the ‘Notice to Appear’ in 8 C.F.R. §§ 1003.13-14 is different from the
‘Notice to Appear’ in 8 U.S.C. § 1229(a)(1)” and that, “[a]lthough the contents of the two
documents might be different, this does not mean that the regulation contradicts the statute.” 917
F.3d at 490 n.4. This court concluded that the agency’s “regulations are consistent with the
statute.” Id.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0532n.06
No. 18-4169
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ROSHNI ISHVARBHAI PATEL, ) Oct 17, 2019 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) )
BEFORE: BOGGS, BATCHELDER, and DONALD, Circuit Judges.
PER CURIAM. Roshni Ishvarbhai Patel petitions this court for review of an order of the
Board of Immigration Appeals (“BIA”) denying her motions to reopen her removal proceedings
sua sponte and to reconsider the denial of her prior motion to reopen. As set forth below, we
DENY in part and DISMISS in part Patel’s petition for review.
Patel, a native and citizen of India, entered the United States without inspection in August
2003 and was apprehended soon thereafter. Upon her apprehension, the Department of Homeland
Security (“DHS”) personally served Patel with a notice to appear in removal proceedings, charging
her with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States
without being admitted or paroled and ordering her to appear before an immigration judge in
Detroit, Michigan, at a date and time “to be set.” Patel later filed a change-of-address form with
the immigration court. On June 30, 2004, the immigration court mailed a notice of hearing to
Patel’s updated address, informing her that a hearing had been scheduled for 9:00 a.m. on August No. 18-4169, Patel v. Barr
24, 2004, at the specified address of the immigration court in Detroit, Michigan. When Patel failed
to appear for that hearing, the immigration judge ordered her removal to India.
Nearly nine years later, Patel filed a motion to reopen her removal proceedings and rescind
the in absentia removal order, asserting that she did not receive notice of the hearing. The
immigration judge denied Patel’s motion. On appeal, the BIA agreed with the immigration judge
that Patel had failed to present sufficient evidence to rebut the presumption of delivery that attaches
to a hearing notice sent by regular mail.
Almost four years after the BIA dismissed her appeal, Patel moved the BIA to reopen her
removal proceedings sua sponte and remand the proceedings to the immigration court to allow her
to file an application for a provisional unlawful-presence waiver. While Patel’s motion to reopen
was pending, the Supreme Court decided Pereira v. Sessions, 138 S. Ct. 2105, 2110 (2018),
holding that “[a] notice that does not inform a noncitizen when and where to appear for removal
proceedings is not a ‘notice to appear under [8 U.S.C.] section 1229(a)’ and therefore does not
trigger the stop-time rule” ending the noncitizen’s period of continuous physical presence in the
United States for purposes of cancellation of removal. In light of Pereira, Patel filed a
supplemental brief in support of her motion to reopen and a motion to reconsider the denial of her
prior motion to reopen, asserting that jurisdiction never vested with the immigration court because
the notice to appear served on her did not specify the date, time, and place of her removal
proceedings.
The BIA denied Patel’s motions to reopen and to reconsider. Following Pereira, the BIA
held 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 and meets the
requirements of [§ 1229(a)], so long as a notice of hearing specifying this information is later sent
to the alien.” Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 447 (B.I.A. 2018). Relying on
-2- No. 18-4169, Patel v. Barr
Matter of Bermudez-Cota, the BIA concluded that, because Patel was properly served with a notice
of hearing specifying the time, date, and place of the removal hearing, the notice to appear served
on her vested the immigration court with jurisdiction over her removal proceedings and sua sponte
reopening or reconsideration based on Pereira was therefore unwarranted. As for Patel’s motion
to reopen her removal proceedings sua sponte to allow her to apply for a provisional unlawful-
presence waiver, the BIA was “not persuaded that the feared consequences of [her] removal
warrant the exercise of [its] sua sponte authority.” This timely petition for review followed.
Patel asserts that the BIA erred in applying Matter of Bermudez-Cota, which she argues is
based on an erroneous and unreasonable interpretation of the statute and the regulations. This
court has already addressed the BIA’s decision in Matter of Bermudez-Cota. After examining the
relevant statutory and regulatory text and the Supreme Court’s decision in Pereira, we agreed with
the BIA’s interpretation, concluding that “jurisdiction vests with the immigration court where, as
here, the mandatory information about the time of the hearing is provided in a Notice of Hearing
issued after the [Notice to Appear].” Hernandez-Perez v. Whitaker, 911 F.3d 305, 313-15 (6th
Cir. 2018) (citation omitted); see Santos-Santos v. Barr, 917 F.3d 486, 489-91 (6th Cir. 2019).
This panel is bound by the court’s prior published decisions. See Salmi v. Sec’y of Health &
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).
Acknowledging our decisions in Hernandez-Perez and Santos-Santos, Patel contends that
she makes a new argument that was not addressed in those cases. Patel argues that 8 U.S.C.
§ 1229(a) does not allow the immigration courts to set the initial time and date of a hearing, only
to change the time and date after an initial time and date are provided in a notice to appear, and
that, to the extent that the regulations allow the immigration courts to set the initial time and date
of a hearing, they are “ultra vires to the statute.” But § 1229(a) does not make such a distinction
about who is authorized to set the initial time and date of a hearing and who is authorized to change
-3- No. 18-4169, Patel v. Barr
that time and date. The division of the roles played by the DHS and the immigration courts in
scheduling cases is instead set forth in the regulations. See 8 C.F.R. § 1003.18.
In essence, Patel maintains that “the statutory definition of a ‘notice to appear’ under
§ 1229(a) must control over the regulation where they conflict.” (Pet’r’s Br. 17). In Santos-Santos,
this court recognized that “the ‘Notice to Appear’ in 8 C.F.R. §§ 1003.13-14 is different from the
‘Notice to Appear’ in 8 U.S.C. § 1229(a)(1)” and that, “[a]lthough the contents of the two
documents might be different, this does not mean that the regulation contradicts the statute.” 917
F.3d at 490 n.4. This court concluded that the agency’s “regulations are consistent with the
statute.” Id. Since this court already considered and rejected Patel’s ultra vires argument, we need
not revisit the issue.
Patel argues that the BIA erred in failing to address her arguments that the thirty-day
deadline for filing a motion to reconsider should be equitably tolled and that she had shown
exceptional circumstances for her late filing based on the change in law in Pereira. But the BIA
denied Patel’s Pereira-based claims on the merits, not on the basis that her motion to reconsider
was untimely. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule
courts and agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.”).
Patel continues to argue that she never received the notice of hearing. In dismissing Patel’s
appeal from the denial of her first motion to reopen, the BIA agreed with the immigration judge
that she had not overcome the presumption of delivery of the notice of hearing. Patel did not seek
judicial review of the BIA’s order within thirty days of its issuance; therefore, we lack jurisdiction
to consider her challenge to the BIA’s prior determination. See Prekaj v. INS, 384 F.3d 265, 267-
68 (6th Cir. 2004).
-4- No. 18-4169, Patel v. Barr
We also lack jurisdiction to review the BIA’s denial of Patel’s motion to reopen her
removal proceedings sua sponte. This court has “held that ‘[t]he decision whether to invoke sua
sponte authority [under 8 C.F.R. § 1003.2(a)] is committed to the unfettered discretion of the BIA’
and therefore is not subject to judicial review.” Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir.
2008) (quoting Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir. 2004)). Patel argues that this
holding should be revisited in light of the Supreme Court’s reasoning in Kucana v. Holder, 558
U.S. 233 (2010), but that case “express[ed] no opinion on whether federal courts may review the
Board’s decision not to reopen removal proceedings sua sponte.” Id. at 251 n.18. Accordingly,
this court already considered and rejected Patel’s argument and continues to apply the
jurisdictional bar post-Kucana. See Rais v. Holder, 768 F.3d 453, 460-64 (6th Cir. 2014).
For these reasons, and in accordance with the request of the United States, we DENY in
part and DISMISS in part Patel’s petition for review.
-5-