NOT RECOMMENDED FOR PUBLICATION File Name: 22a0072n.06
Case No. 21-3613
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 09, 2022 YEON HWA KIM; TAEYOUNG KIM; SE ) DEBORAH S. HUNT, Clerk RYUN KIM, ) ) Petitioners, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS MERRICK B. GARLAND, Attorney General, ) Respondent. ) )
Before: SUTTON, Chief Judge; GIBBONS and GRIFFIN, Circuit Judges.
SUTTON, Chief Judge. Immigration authorities issued the Kim family notices to appear
at removal proceedings. While the notices lacked a piece of statutorily required information—the
date and time of the hearing—the government provided that information in a later document. The
Kims argue that the immigration judge should have rejected the removal request based on the
defective notices. But they waited until late in the proceeding to make the argument. Because the
defective notices did not deprive the immigration judge of power to hear the case and because the
Kims waited too long to object to the missing information, we deny their petition for review.
Se Ryun Kim, a native and citizen of South Korea, came to the United States as a student
in 2005. Her parents, Yeon Hwa and Taeyoung, entered the country the next year as visitors with
authorization to remain until 2007. The Kims overstayed. In June 2015, immigration authorities Case No. 21-3613, Kim, et al. v. Garland
served all three with notices to appear at removal proceedings in Arlington, Virginia, at a date and
time “[t]o be set.” A.R. 139.
In August 2016, the Kims received hearing notices directing them to appear before an
immigration judge on June 7, 2017, at 1:00 p.m. In March 2017, they retained counsel and
successfully moved for a change of venue to Memphis, Tennessee. In doing so, they
acknowledged proper service of their June 2015 notices to appear, admitted the allegations in the
notices, and conceded their removability.
Later that year, the Kims appeared with counsel before an immigration judge in Memphis.
The immigration judge sustained the removability charges against them, then continued the case
to the following spring to allow the Kims to prepare applications for relief from the removal orders.
In March 2018, the Kims appeared with new counsel and moved for another continuance. The
immigration judge continued the case until October 2018.
In June 2018, the U.S. Supreme Court held that an initial notice omitting the time and place
of removal proceedings does not qualify as a valid “notice to appear” under 8 U.S.C. § 1229(a)
and thus cannot be used to determine whether an alien has been present in the country for the ten
years required for cancellation-of-removal eligibility. Pereira v. Sessions, 138 S. Ct. 2105, 2113–
14 (2018). The next month, the Kims moved for the first time to terminate their removal
proceedings. Because their June 2015 notices lacked the time of their initial hearing, they argued,
the notices were invalid under Pereira and the immigration judge lacked subject matter jurisdiction
over the action. The immigration judge denied the motion.
When the Kims appeared for their next scheduled hearing in October 2018, they declined
to pursue relief from removal. The immigration judge ordered them removed to South Korea. The
Kims appealed the denial of their motion to terminate to the Board of Immigration Appeals. The
2 Case No. 21-3613, Kim, et al. v. Garland
Board dismissed the appeal, reasoning that the defective notices did not deprive the immigration
judge of jurisdiction over the proceedings.
The Kims petitioned this court for review of the Board’s order.
Congress has tasked immigration judges with conducting “proceedings for deciding
the . . . deportability of an alien.” 8 U.S.C. § 1229a(a)(1). In doing so, it has provided that “written
notice,” also referred to as a notice to appear, “shall be given” to an alien subject to such
proceedings. Id. § 1229(a)(1). Notices to appear must specify the “time and place at which the
proceedings will be held.” Id. § 1229(a)(1)(G)(i).
The Kims’ notices lacked some of the required information, as they directed the family to
appear on a date and at a time “[t]o be set.” A.R. 139. The government thus violated § 1229(a)(1).
At stake is whether this violation requires us to terminate the removal proceedings in the
Kims’ favor.
The defective notices, as a threshold matter, did not deprive the immigration judge of
subject matter jurisdiction. Pereira and its sequel, Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021),
do not affect an immigration judge’s power to act. “For jurisdictional purposes,” we have
explained, “it is not necessary that the Notice to Appear contain all the required information or
that all the information be included in a single document.” Ramos Rafael v. Garland, 15 F.4th
797, 801 (6th Cir. 2021).
Recognizing that a defective notice does not deprive an immigration judge of jurisdiction,
the Kims have shifted their argument on appeal. Instead of claiming that a § 1229(a)(1) violation
removes subject matter jurisdiction over a removal action, they claim the statute is a mandatory
claims-processing rule. They invoke the Seventh Circuit’s decision in De La Rosa v. Garland,
3 Case No. 21-3613, Kim, et al. v. Garland
which held that § 1229(a)(1)’s strictures are “mandatory claims-processing rules for which
noncompliance will result in relief upon a timely objection.” 2 F.4th 685, 687 (7th Cir. 2021).
One potential roadblock for the Kims is that their agency briefing nowhere mentions
claims-processing rules and speaks instead to subject matter jurisdiction. “[O]nly claims properly
presented to the [Board] and considered on their merits can be reviewed by this court in an
immigration appeal.” Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004); see also 8 U.S.C.
§ 1252(d)(1). Although the government does not object to our review on exhaustion grounds, we
have generally treated this requirement as a jurisdictional rule requiring threshold consideration.
See Gazeli v. Session, 856 F.3d 1101, 1106–07 (6th Cir. 2017); Saleh v. Barr, 795 F. App’x 410,
421 (6th Cir. 2019) (Murphy, J., concurring).
Even so, the Kims have exhausted their statutory claim. They have consistently argued
that their initial notices were defective under Pereira and that the government’s statutory violation
required termination of their removal proceedings. The Kims’ jurisdictional and claims-
processing-rule arguments support the same underlying claim, even if framed differently, and we
have jurisdiction to review it. See Xiao Ren Zhuang v. Mukasey, 304 F. App’x 382, 387 (6th Cir.
2008) (“We do not take the exhaustion requirement to preclude arguments that merely give
additional support to claims that were raised before the [Board].”); Chocoj-Quino v. Att’y Gen.
United States, No. 21-1999, 2022 WL 278374, at *1 n.3 (3d Cir. Jan. 31, 2022) (reviewing a
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NOT RECOMMENDED FOR PUBLICATION File Name: 22a0072n.06
Case No. 21-3613
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 09, 2022 YEON HWA KIM; TAEYOUNG KIM; SE ) DEBORAH S. HUNT, Clerk RYUN KIM, ) ) Petitioners, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS MERRICK B. GARLAND, Attorney General, ) Respondent. ) )
Before: SUTTON, Chief Judge; GIBBONS and GRIFFIN, Circuit Judges.
SUTTON, Chief Judge. Immigration authorities issued the Kim family notices to appear
at removal proceedings. While the notices lacked a piece of statutorily required information—the
date and time of the hearing—the government provided that information in a later document. The
Kims argue that the immigration judge should have rejected the removal request based on the
defective notices. But they waited until late in the proceeding to make the argument. Because the
defective notices did not deprive the immigration judge of power to hear the case and because the
Kims waited too long to object to the missing information, we deny their petition for review.
Se Ryun Kim, a native and citizen of South Korea, came to the United States as a student
in 2005. Her parents, Yeon Hwa and Taeyoung, entered the country the next year as visitors with
authorization to remain until 2007. The Kims overstayed. In June 2015, immigration authorities Case No. 21-3613, Kim, et al. v. Garland
served all three with notices to appear at removal proceedings in Arlington, Virginia, at a date and
time “[t]o be set.” A.R. 139.
In August 2016, the Kims received hearing notices directing them to appear before an
immigration judge on June 7, 2017, at 1:00 p.m. In March 2017, they retained counsel and
successfully moved for a change of venue to Memphis, Tennessee. In doing so, they
acknowledged proper service of their June 2015 notices to appear, admitted the allegations in the
notices, and conceded their removability.
Later that year, the Kims appeared with counsel before an immigration judge in Memphis.
The immigration judge sustained the removability charges against them, then continued the case
to the following spring to allow the Kims to prepare applications for relief from the removal orders.
In March 2018, the Kims appeared with new counsel and moved for another continuance. The
immigration judge continued the case until October 2018.
In June 2018, the U.S. Supreme Court held that an initial notice omitting the time and place
of removal proceedings does not qualify as a valid “notice to appear” under 8 U.S.C. § 1229(a)
and thus cannot be used to determine whether an alien has been present in the country for the ten
years required for cancellation-of-removal eligibility. Pereira v. Sessions, 138 S. Ct. 2105, 2113–
14 (2018). The next month, the Kims moved for the first time to terminate their removal
proceedings. Because their June 2015 notices lacked the time of their initial hearing, they argued,
the notices were invalid under Pereira and the immigration judge lacked subject matter jurisdiction
over the action. The immigration judge denied the motion.
When the Kims appeared for their next scheduled hearing in October 2018, they declined
to pursue relief from removal. The immigration judge ordered them removed to South Korea. The
Kims appealed the denial of their motion to terminate to the Board of Immigration Appeals. The
2 Case No. 21-3613, Kim, et al. v. Garland
Board dismissed the appeal, reasoning that the defective notices did not deprive the immigration
judge of jurisdiction over the proceedings.
The Kims petitioned this court for review of the Board’s order.
Congress has tasked immigration judges with conducting “proceedings for deciding
the . . . deportability of an alien.” 8 U.S.C. § 1229a(a)(1). In doing so, it has provided that “written
notice,” also referred to as a notice to appear, “shall be given” to an alien subject to such
proceedings. Id. § 1229(a)(1). Notices to appear must specify the “time and place at which the
proceedings will be held.” Id. § 1229(a)(1)(G)(i).
The Kims’ notices lacked some of the required information, as they directed the family to
appear on a date and at a time “[t]o be set.” A.R. 139. The government thus violated § 1229(a)(1).
At stake is whether this violation requires us to terminate the removal proceedings in the
Kims’ favor.
The defective notices, as a threshold matter, did not deprive the immigration judge of
subject matter jurisdiction. Pereira and its sequel, Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021),
do not affect an immigration judge’s power to act. “For jurisdictional purposes,” we have
explained, “it is not necessary that the Notice to Appear contain all the required information or
that all the information be included in a single document.” Ramos Rafael v. Garland, 15 F.4th
797, 801 (6th Cir. 2021).
Recognizing that a defective notice does not deprive an immigration judge of jurisdiction,
the Kims have shifted their argument on appeal. Instead of claiming that a § 1229(a)(1) violation
removes subject matter jurisdiction over a removal action, they claim the statute is a mandatory
claims-processing rule. They invoke the Seventh Circuit’s decision in De La Rosa v. Garland,
3 Case No. 21-3613, Kim, et al. v. Garland
which held that § 1229(a)(1)’s strictures are “mandatory claims-processing rules for which
noncompliance will result in relief upon a timely objection.” 2 F.4th 685, 687 (7th Cir. 2021).
One potential roadblock for the Kims is that their agency briefing nowhere mentions
claims-processing rules and speaks instead to subject matter jurisdiction. “[O]nly claims properly
presented to the [Board] and considered on their merits can be reviewed by this court in an
immigration appeal.” Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004); see also 8 U.S.C.
§ 1252(d)(1). Although the government does not object to our review on exhaustion grounds, we
have generally treated this requirement as a jurisdictional rule requiring threshold consideration.
See Gazeli v. Session, 856 F.3d 1101, 1106–07 (6th Cir. 2017); Saleh v. Barr, 795 F. App’x 410,
421 (6th Cir. 2019) (Murphy, J., concurring).
Even so, the Kims have exhausted their statutory claim. They have consistently argued
that their initial notices were defective under Pereira and that the government’s statutory violation
required termination of their removal proceedings. The Kims’ jurisdictional and claims-
processing-rule arguments support the same underlying claim, even if framed differently, and we
have jurisdiction to review it. See Xiao Ren Zhuang v. Mukasey, 304 F. App’x 382, 387 (6th Cir.
2008) (“We do not take the exhaustion requirement to preclude arguments that merely give
additional support to claims that were raised before the [Board].”); Chocoj-Quino v. Att’y Gen.
United States, No. 21-1999, 2022 WL 278374, at *1 n.3 (3d Cir. Jan. 31, 2022) (reviewing a
claims-processing-rule argument despite the petitioner’s earlier reliance on a jurisdictional
argument because he “consistently relied on Pereira to argue that violation of § 1229(a) required
termination of his removal proceedings”).
While the Kims have exhausted this argument, that does not mean it is a winning argument,
even if we assume that De La Rosa’s framework applies. Section 1229(a)(1) aims “to ensure that
4 Case No. 21-3613, Kim, et al. v. Garland
noncitizens appear for proceedings by requiring that the noncitizen be informed of the time and
place of the hearing.” Chavez-Chilel v. Att’y Gen. United States, 20 F.4th 138, 143 (3d Cir. 2021).
It works like a claims-processing rule by “promot[ing] the orderly progress of litigation.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). But such rules bind courts
“only when properly asserted and not forfeited.” United States v. Alam, 960 F.3d 831, 833 (6th
Cir. 2020). De La Rosa itself noted that a petitioner should lodge objections to a defective notice
“at the outset of the proceeding.” 2 F.4th at 688. A “problem in the charging document” should
be “pointed out promptly, so that any error c[an] be fixed.” Chen v. Barr, 960 F.3d 448, 451 (7th
Cir. 2020).
The Kims did not object to their defective notices to appear until more than three years
after receiving them. By that time, they had conceded proper service of the notices and admitted
the charges against them. And an immigration judge had found them removable. Because the
Kims did not object to the defective notices “at the outset of the proceeding,” they must show
prejudice to secure relief. De La Rosa, 2 F.4th at 687–88; see Chavez-Chilel, 20 F.4th at 144 n.7.
The Kims have not pointed to any way in which the government’s statutory violation
prejudiced them. In the three years between receiving the initial notices and objecting to the
notices’ contents, the Board noted, the Kims “received their hearing notices” with the missing
information included. A.R. 4. They secured counsel and successfully moved to change venue.
And they “attended their scheduled hearings,” securing a continuance on each occasion. Id. at 3–
4. The defects in their initial notices in no way hampered the Kims’ ability to secure counsel or
participate fully in their removal proceedings—all confirmed by the many years during which no
removal occurred. See Chavez-Chilel, 20 F.4th at 144; see also Gomez-Chavez v. Barr, 791 F.
App’x 573, 582 (6th Cir. 2019); Flores v. Garland, 861 F. App’x 688, 692 (9th Cir. 2021).
5 Case No. 21-3613, Kim, et al. v. Garland
Under these circumstances, the Board properly denied the Kims’ motion to terminate the
proceedings even though their initial notices lacked a date and time to appear.
We deny the petition for review.