By: Law Offices of Daniel Shanfield February 1, 2019

Top of the Ninth: The Ninth Circuit Rules Pereira Doesn’t Apply to Immigration Court Jurisdiction – So What Now?

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The Ninth Circuit issued its Pereira decision this week and I, for one, am very disappointed. The Ninth Circuit basically allows the Department of Justice to regulate away the applicable statute under the guise of deference. I know that the attorney of record will be seeking rehearing and I hope the Ninth Circuit issues a more well-reasoned decision. I also presume that this issue will go back to the Supreme Court because I (am hopeful) that there will likely be a split in the circuits. One of the good things about this case is that the attorney of record is Ruby Lieberman and she is an excellent attorney. In researching this blog, I read an excellent law review article by Kit Johnson an associate professor at the University of Oklahoma College of Law. The article is entitled Pereira v. Sessions: A Jurisdictional Surprise for the Immigration Courts. You can read it here. If you are interested in Pereira arguments, I strongly recommend that you read Professor Johnson’s article. It is not too long, and it is clear and well-written. No cases came down from the BIA or the Attorney General this week. If you would like further background on this issue you can access past blogs on District Court decisions applying Pereira to unlawful reentry cases. First, here is the blog on the District Court of Nevada’s excellent decision in U.S. v. Soto-Mejia, No. 2:18-cr-10050-RFB-NJK (D. Nev. Dec. 7, 2018). Second, here is the blog on the District Court of the Western District of Texas’s excellent decision in destroying the government’s arguments in a Pereira case. United States v. Jimenez-Cruz, No. A-15-CR-0063-SS (W.D. Tex. Nov. 2, 2018). Between these two decisions and Professor Johnson’s articles, I believe that we can win any Pereira argument that we chose to make. Of course, the Circuit Courts, might disagree with me.

NINTH CIRCUIT

A Notice to Appear that Lacks the Time and Date of the Hearing Confers Jurisdiction on the Immigration Court

The Ninth Circuit, in a very disappointing decision held that a Notice to Appear that lacks the time and date of the hearing confers jurisdiction on the immigration courts. “Because the charging document in this case satisfied the regulatory requirements, we conclude that the Immigration Judge (“IJ”) had jurisdiction over the removal proceedings.” Karingithi v. Whitaker, No. 16-70885, slip op. at *4 (9th Cir. Jan. 28, 2019). And then it echoes in my head – What about the statuary requirements? Statutes Trump the regulations… Congress Trumps the administrative agencies… then again, we are living in the Trump era, but still…. The Ninth Circuit held that this reading is consistent with the recent interpretation of the regulations by the BIA in Matter of Bermudez-Cota, 27 I.&N. Dec. 441 (BIA 2018). Again, what about the statute! The state is unambiguous… there is no deference in this case to the BIA either under Chevron or Auer!…then the Ninth states that the Supreme Court addressed the required contents for a notice to appear in the context of a cancellation of removal case. “Pereira was not in any way concerned with the Immigration Court’s jurisdiction. Rather, the Court considered what information a notice to appear must contain to trigger the stop-time rule, which determines whether a noncitizen has been continuously present in the United States long enough to be eligible for cancellation of removal.*.*.*. Unlike the stop-time rule, the Immigration Court’s jurisdiction does not hinge on § 1229(a) [INA § 239(a)] so Pereira’s narrow ruling does not control our analysis.” Karingithi, slip op. at *5. But…but…but…

Let’s take a step back here and go back to basics. Let’s look at the intersection between the statute and the regulations. It’s really not that complicated. The regulations provide that jurisdiction vests with the Immigration Court when ICE files a charging document with the Immigration Court. 8 C.F.R. § 1003.14. The regulations define a charging document as “the written instrument which initiates a proceeding before an Immigration Judge.” Okay, we’ve got that. “For proceedings initiated after April 1, 1997, these documents 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.” 8 C.F.R. § 1003.13 (emphasis added). Fortunately for everyone, Congress has defined a Notice to Appear. Here’s the statute. It’s not long. It’s not complicated:

(a) Notice to appear

(1) In general

In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear“) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying the following:

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are conducted.

(D) The charges against the alien and the statutory provisions alleged to have been violated.

(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) and (ii) a current list of counsel prepared under subsection (b)(2).

(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 1229a of this title.

(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number.

(iii) The consequences under section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph.

(G)(i) The time and place at which the proceedings will be held.

(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.

INA § 239(a)(1) (emphasis added). The regulations incorporate the statute and the statute states that the notice to appear shall state the time and place of the hearing. Where the statute is unambiguous the courts do not defer to the agencies. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 843 (1984). And we are done. The problem is solved. A Notice to Appear that lacks the time and place of the hearing is not a Notice to Appear as defined by INA § 239(a)(1) and is not a charging document as defined under 8 C.F.R. § 1003.13 which confers jurisdiction on the immigration courts. I will stop yelling for the rest of the blog. Back to the case.

Serah Karingithi is a native of Kenya. In July 2006, she entered the United States on a tourist visa. She overstayed her visa and applied for asylum. According to the unpublished memorandum that the Ninth Circuit filed with the decision, the IJ and the BIA found that Ms. Karingithi did not establish extraordinary circumstances for not filing for asylum within one year of entering the United States. You can read the unpublished memorandum accompanying the published decision here. On April 3, 2009, DHS filed a notice to appear with the date and time to be set. That same day, EOIR issued a notice of hearing providing the date and time of the hearing. Ms. Karingithi conceded removability but applied for asylum, withholding of removal, protection under the Convention Against Torture (CAT relief), and, in the alternative, voluntary departure. The Immigration Judge (IJ) denied all four forms of relief and ordered Ms. Karingithi removed from the United States. The BIA affirmed the IJ’s decision and Ms. Karingithi filed a petition for review arguing that the IJ lacked jurisdiction because the notice to appear lacked the time and date of the hearing.

The Ninth Circuit starts its analysis by going to the regulations – not the statute – the regulations. Had they started with the statute, I believe they would have ended with a completely different result. First, the Ninth Circuit notes that jurisdiction vests when a charging document is filed with the Immigration Court. 8 C.F.R. § 1003.14(a). “A charging document is “the written instrument which initiates a proceeding before an Immigration Judge,” and one of the enumerated examples is a notice to appear. 8 C.F.R. § 1003.13.” Karingithi, slip op. at *6. So far, we all agree.

The Ninth Circuit notes that the regulation does not require the time and date of the proceeding in the original notice under 8 C.F.R. § 1003.15(b). (Here is where the Ninth Circuit’s argument goes off the rails). The regulation lists a Notice to Appear as a charging document. The statute requires that a Notice to Appear list the time and place of the hearing. But, instead of relying on the statute, the Ninth Circuit relies on the regulation that states that the Notice to Appear only need list the time and place of the hearing “where practicable.” 8 C.F.R. § 1003.18(b). The Ninth Circuit notes that while the statute (INA § 239(a)) requires that the notice to appear must be given to the noncitizen and that it requires the time and place at which the government will hold the proceedings; “[n]otably, the statute is silent as to the jurisdiction of the Immigration Court.” Karingithi, slip op. at *7. The Ninth then states that the regulations not the statute define when jurisdiction vests. “Section 1229 [INA § 239] says nothing about the Immigration Court’s jurisdiction. And for their part, the regulations make no reference to § 1229(a)’s definition of the notice to appear.” Karingithi, slip op. at *8. That argument is pure nonsense.

The Ninth Circuit then does its best to distinguish the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). The Ninth Circuit notes that Pereira dealt with an issue distinct from the jurisdictional questions here. In Pereira the question was whether a notice to appear that lacked the time and date of the hearing stopped time for cancellation of removal under INA § 240A(b). Under the stop-time rule “the period of continuous physical presence” is “deemed to end…when the alien is served with a notice to appear under section 1229(a).” INA § 240A(d). Karingithi, slip op. at *9.

“Pereira’s analysis hinges on “the intersection” of two statutory provisions: § 1229b(d)(1)’s stop-time rule and § 1229(a)’s definition of a notice to appear. Id. at 2110. The stop-time rule is not triggered by any “notice to appear”—it requires a “notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1) (emphasis added). Pereira treats this statutory cross-reference as crucial: “the word ‘under’ provides the glue that bonds the stop-time rule to the substantive time-and-place requirements mandated by § 1229(a).” Pereira, 138 S.Ct. at 2117. There is no “glue” to bind § 1229(a) and the jurisdictional regulations: the regulations do not reference § 1229(a), which itself makes no mention of the IJ’s jurisdiction. Pereira’s definition of a “notice to appear under section 1229(a)” does not govern the meaning of “notice to appear” under an unrelated regulatory provision.

In short, Pereira simply has no application here.”

Karingithi, slip op. at *9 (emphasis in the original). I would just like to point out, there is only one definition of a Notice to Appear and Congress has defined it under INA § 239(a)(1).

Finally, the Ninth Circuit notes that the BIA issued a published decision finding that a notice to appear that lacks the time and place of the hearing vests the Immigration Judge with jurisdiction over the case. Matter of Bermudez-Cota, 27 I.&N. Dec. 441, 442-444 (BIA 2018). The Ninth Circuit said it must defer to the Board’s interpretations of ambiguous regulations unless they are plainly erroneous; inconsistent with the regulations; or do not reflect the agency’s fair and considered judgment. Karingithi, slip op. at *10. Okay, we are not dealing with the regulations here. We are dealing with the statute. The statute is unambiguous. The agency’s interpretation of the statute either their regulation or through case law is not entitled to any deference either under Chevron or Auer (Auer deference is Chevron deference for regulations instead of the statute). I think now is a good time to re-up part of Justice Kennedy’s concurrence in Pereira. It’s not long.

“This separate writing is to note my concern with the way in which the Court’s opinion in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), has come to be understood and applied. The application of that precedent to the question presented here by various Courts of Appeals illustrates one aspect of the problem. *.*.*.

In according Chevron deference to the BIA’s interpretation, some Courts of Appeals engaged in cursory analysis of the questions whether, applying the ordinary tools of statutory construction, Congress’ intent could be discerned, 467 U.S., at 843, n. 9, 104 S.Ct. 2778, and whether the BIA’s interpretation was reasonable, id., at 845, 104 S.Ct. 2778. In Urbina v. Holder, for example, the court stated, without any further elaboration, that “we agree with the BIA that the relevant statutory provision is ambiguous.” 745 F.3d, at 740. It then deemed reasonable the BIA’s interpretation of the statute, “for the reasons the BIA gave in that case.” Ibid. This analysis suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.

The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still.

Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J. concurring).

To summarize this entire case, while the statute is silent about jurisdiction, the regulations incorporate INA § 239 and state that jurisdiction vests when the government serves a charging document on the noncitizen. The regulations further define a charging document as including a Notice to Appear. The statute defines a Notice to Appear. A Notice to Appear must include the time and place of the hearing. INA § 239(a)(1)(G). Without a proper Notice to Appear there is no jurisdiction. The courts cannot and should not give reflexive deference to the Board of Immigration Appeals.

Karingithi v. Whitaker, No. 16-70885 (9th Cir. Jan. 28, 2019).

Additional Reading