The BIA reverses the Ninth Circuit and expands the reach of the stop-time rule
The Justice Department’s Executive Office for Immigration Review’s Board of Immigration Appeals (BIA) laid one on us Friday, in what Matt Drudge might call a Friday document dump. In this case, the dump was a decision about the stop-time rule, Matter of Camarillo. The stop-time rule, found at INA § 240A(d), states, in part, that “… any period of continuous residence or continuous physical presence in the United States shall deem to end … when the alien is served a notice to appear under section 239(a).”
Section 239, that is, INA § 239(a)(1), discusses the content of the initial charging document that initiates removal proceedings in immigration court, the Notice to Appear. What a Notice to Appear must contain according to the statute is:
(A) The nature of the proceeding against the alien.
(F) 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 240. Also, 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 and the consequences of failure to provide address and telephone information pursuant to this subparagraph.
(G) The time and place at which the proceedings will be held and a warning of the consequences of the failure, except under exceptional circumstances, to appear at such proceedings.
The purpose of the stop-time rule is to limit eligibility for relief from removal in removal proceedings. It impacts, predominantly, two forms of relief, both called Cancellation of Removal. The first, Cancellation of Removal for Certain Permanent Residents, INA § 240A(a), is a forgiveness statute for some permanent residents removable for some crimes. To be eligible, the alien must have accrued seven years of continuous residence after being admitted in any status. The stop time provision states, in part, that service of the Notice to Appear stops the accrual of the seven years. Consider this scenario. An alien enters the United States for the first time in his life in 2005. This first entry is with a permanent residence visa. In 2011, six years after he entered as a permanent resident, he helps smuggle a destitute relative into the United States. He is caught and arrested and interrogated and then Customs and Border Protection (CBP) officers hand him a Notice to Appear. He goes to his first court date soon thereafter, a brief scheduling court date, and gets a trial date for his case in 2012, seven years after he first entered. Because of the stop time rule, he is ineligible for Cancellation of Removal for Certain Permanent Residents because CBP officers served him with his Notice to Appear in 2011, when he had only six years of continuous residence after he was first admitted. He does not accrue time after this while waiting for his trial.
Similarly, the other Cancellation of Removal, Cancellation of Permanent Residence for Certain Nonpermanent Residents, INA § 240A(b) has a ten year continuous physical presence requirement which a Notice to Appear stops. Thus an alien who entered in December 2001 and is served with a Notice to Appear in November 2011 is ineligible for Cancellation of Removal for Certain Nonpermanent Residents regardless of when his immigration court trial takes place.
Like always, issues arise. The Notice to Appear must inform the alien of the time and place of the proceeding. Quite often, when CBP or other Department of Homeland Security (DHS) agencies that issue Notices to Appear, they do not provide a time and place for the hearing and put on the Notice to Appear that the hearing time is “to be set” or similar words. It is not uncommon that a DHS agency will serve a Notice to Appear and never file it with the immigration court, leaving an alien in an unending limbo.
In a case, Garcia-Ramirez v. Gonzales, the Ninth Circuit Court of Appeals wrote, in a footnote, footnote 3:
Under IIRIRA, an alien’s accrual of physical presence time ends when removal proceedings are commenced against the alien through service of a notice to appear before an IJ. § 1229b(d)(1). The INS initially served Garcia-Ramirez with a notice to appear on April 10, 1997. However, this notice failed to specify the date or location of Garcia-Ramirez’s immigration hearing. Garcia-Ramirez was not served with a proper hearing notice until October 7, 1998. Under § 1229(a), service of this second notice to appear ended Garcia-Ramirez’s accrual of physical presence.
Thus, according to the Ninth Circuit, only when the immigration court sends the court date to the alien does this part of the stop-time statute become effective.
In Garcia-Ramirez, Margarita Garcia-Ramirez, entered the United States in May 1988. On April 10, 1997, she was served with a Notice to Appear. It did not provide a time or place for her hearing. She received a hearing notice from an immigration court on October 7, 1998, a year and a half later. Ms. Garcia-Ramirez would be seeking Cancellation of Removal for Certain Nonpermanent Residents. Because there was no time or date on the Notice to Appear, according to the Garcia-Ramirez case, the stop time rule did not stop the accrual of continuous physical presence on the date she was served with a Notice to Appear, April 10, 1997, when she was here for only 9 years 11 months, but when she received her court date, October 7, 1988, when she was here for more than ten years. Thus, the service of the Notice to Appear did not stop the accrual of permanent residence because it was incomplete, lacking the time and date information required by INA § 239(a)(1)(G).
The Garcia-Ramirez court ended up stopping time because Ms. Garcia-Ramirez had an extended departure to Mexico to care for her parents which the court deemed interruptive of the ten years of continuous physical presence.
The BIA, in its Friday, December 2, 2011, decision, Matter of Camarillo, reversed the Ninth Circuit, as the BIA is now empowered to do under a Supreme Court decision, National Cable and Telecommunications Assn. v. Brand X Internet Services, which allows an agency to reverse a Court of Appeals if the Court of Appeals decision pre-dates a precedent decision of the agency. Because the BIA never published a case on this aspect of the stop-time rule before the Ninth Circuit ruled in Garcia-Ramirez, the BIA is empowered to reverse the Court of Appeals. The BIA held that the service of a Notice to Appear, even though incomplete, stopped time in the case.
The BIA addresses the Garcia-Ramirez case in its Matter of Camarillo decision writing, also in a footnote, footnote 6:
In a footnote in Garcia-Ramirez v. Gonzales, 423 F.3d 935, 937 n.3 (9th Cir. 2005)(per curiam), the United States Court of Appeals for the Ninth Circuit commented that where a notice to appear failed to specify the hearing date or location, accrual of physical presence ended upon service of a proper hearing notice. However, this comment was not accompanied by any analysis of the laws and regulations governing the issuance or service of a notice to appear. Nor did it address the holding of the case, which concerned the retroactive application of the 90/180-day rule under section 240A(d)(2) of the Act. Furthermore, the court’s holding in a more recent decision, in which footnote 3 of Garcia-Ramirez was not addressed, arrived at a different conclusion. Popa v. Holder, 571 F.3d at 895-96. Therefore, the comment in footnote 3 appears to be dicta, and we read Popa as expressing the Ninth Circuit’s view on this issue.
While the BIA is empowered to reverse Garcia-Ramirez, it was incautious as to why. The BIA says three things about Garcia-Ramirez:
1. The decision about the effect of a missing hearing notice was mere dicta;
2. The Ninth Circuit did not include any analysis;
3. The Ninth Circuit contradicted Garcia-Ramirez, in another case, Popa v. Holder.
Regarding the dicta assertion, dicta can be defined as the part of a judicial opinion which is merely a judge’s editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory. In Garcia-Ramirez, the Court could have easily disposed of the case by holding that Ms. Garcia-Ramirez did not accrue ten years of continuous physical presence when she was served with the Notice to Appear. Instead it proceeded with a complex retroactivity analysis to determine the impact of her long departure during her ten-year stay. The holding about the impact of the failure to include the date and time of the hearing was integral to the case. It was not an incidental musing, such as “No good deed goes unpunished,” which may be true, but is not the law.
While it is true that there was not any analysis in Garcia-Ramirez, that was because the government did not dispute that the stop-time rule did not affect the case until after the immigration court served a hearing notice. The Court wrote, “The parties agree that Garcia-Ramirez’s accrual of physical presence time ended on October 7, 1998, when she was served with a notice to appear before an IJ.” The BIA also did not address this issue when the case was before it. The case had to have been decided by the BIA before Ms. Garcia-Ramirez could appeal it to the Ninth Circuit.
Finally, regarding Matter of Camarillo’s discounting Garcia-Ramirez by stating that in Popa v. Holder, the Ninth Circuit came to a different conclusion, this observation is slightly disingenuous. Popa was an in absentia case. In the immigration court, if an alien fails to show up for court and you had notice of the hearing date, time, and place, and no extraordinary circumstance for failing to appear, and the immigration court has the evidence to find the alien removable, the immigration court must order removal according to INA § 240(b)(5).
The statute reads, in part, “Any alien who, after written notice required under paragraph (1) or (2) of section 239(a) has been provided … does not attend a proceeding … shall be ordered removed in absentia….
In Popa, the alien got a hearing notice that said, “[t]ime and date to be set by the U.S. Immigration Court.” The notice instructed Ms. Popa of her duty to inform the immigration court of any change of her address. She moved and failed to inform the court. She thus did not receive a hearing notice that the immigration court mailed her. Consequently, she thus did not attend her hearing and was deported in absentia. Her argument to the Court of Appeals, in part, was that she did not receive written notice required under INA § 239(a)(1), because 239(a)(1)(G) was initially missing. While a clever argument, she was unsuccessful because the statute was perfected by the service of a hearing notice, which she did not receive because she failed to follow the instruction to inform the court of her new address. Just like time stopped for Ms. Garcia-Ramirez when the immigration court properly served a hearing notice, Ms. Popa was responsible to show up for court when the immigration court properly served a hearing notice. Further, while the Garcia-Ramirez and Popa cases both address INA § 239(a)(1), one is about stop-time and the other is about in absentia removal orders. The statute does not have to have identical impact on these two different issues.
The courts of appeal sometimes find ways to cut people a little slack, like in the recent Lezama- Garcia v. Holder case. The BIA often appears to do the opposite, like the proverbial dog, it seems, because it can. Posted December 4, 2011.
Jonathan D. Montag is a State Bar of California certified Immigration and Nationality Law Specialist. Mr. Montag has successfully argued cases before the District Court for the Southern District of California and the Ninth Circuit Court of Appeals. He has testified numerous times in the District Court for the Southern District of California and before the State Bar Court as an expert in immigration law. He is a former chairman of the State of California Immigration and Nationality Law Advisory Commission of the Board of Legal Specialization. He also serves as a fee arbitrator for the San Diego County Bar Association. Mr. Montag was named a 2005 Attorney of the Year by California Lawyer Magazine and has been named to the San Diego Super Lawyers list for immigration in 2007-2011. He blogs at www.montaglaw.com/blog.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.