Gustavo Urbina v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1084

GUSTAVO URBINA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

No. 13-1465

GUSTAVO URBINA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Argued: December 10, 2013 Decided: March 17, 2014

Before MOTZ, AGEE, and DIAZ, Circuit Judges.

Petition for review denied in part and dismissed in part by

published opinion. Judge Diaz wrote the opinion, in which Judge

Motz and Judge Agee joined.

ARGUED: Philip A. Eichorn, PHILIP EICHORN COMPANY, LPA,

Cleveland, Ohio, for Petitioner. Jennifer Paisner Williams,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Stuart F. Delery, Acting Assistant

Attorney General, David V. Bernal, Assistant Director, Office of

Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

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DIAZ, Circuit Judge:

The Immigration and Nationality Act permits the Attorney

General to cancel removal of certain aliens. See 8 U.S.C.

§ 1229b(b). Although the Attorney General has discretion in

such matters, the statute requires the alien to have “been

physically present in the United States for a continuous period

of not less than 10 years immediately preceding the date of such

application.” Id. § 1229b(b)(1)(A). In this case, Gustavo

Urbina, a native and citizen of Nicaragua, argues that he has

met that requirement and is thus statutorily eligible for

cancellation of removal. The Immigration Judge and the Board of

Immigration Appeals found otherwise. For the reasons that

follow, we deny in part and dismiss in part Urbina’s petition

for review.

I.

Urbina entered the United States on October 4, 2000, on a

tourist visa. He overstayed its expiration. In December 2009--

shortly before the statute’s ten years would accrue--the

Department of Homeland Security served Urbina with a notice to

appear, charging him with having entered the United States

without being admitted or paroled, pursuant to 8 U.S.C.

§ 1182(a)(6)(A)(i). The government apparently based that charge

on Urbina’s own representations in his 2003, 2005, and 2006

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applications for temporary protected status, which asserted that

he had entered the country in 1998--an entry date the government

was unable to verify. The notice to appear did not specify a

date and time for the hearing, but instead noted they were “to

be set.” A.R. 184. 1

Before an Immigration Judge, Urbina admitted that he was

not an American citizen. He did not argue that he was in the

United States legally, but asserted that he had entered legally

in October 2000. Thus, he explained, the charge against him was

incorrect. The IJ asked Urbina to file a copy of his passport

showing his October 2000 entry. Urbina, in turn, requested that

the government file an I-261 form at the next hearing: this form

would swap out the original charge on the notice to appear

(illegal entry) for the factually correct charge (illegal

presence, pursuant to 8 U.S.C. § 1227(a)(1)(B)). The IJ

responded, “That’s why I’m going to have you file [a copy of the

passport], so the Government can come to court at the next

master calendar with an I-261 that you can plead to.” A.R. 99.

Urbina then filed a motion to terminate the original

charge, attaching a copy of his passport and visa. The IJ

denied the motion without a written opinion. When the parties

1

References to the “A.R.” cite to the Administrative

Record. The “S.A.R.” is the Supplemental Administrative Record.

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next appeared before the IJ, DHS had not yet prepared the I-261

form. Counsel for the government promised to “independently

verify” Urbina’s 2000 entry and then file the amended charge.

A.R. 106. When Urbina produced an original copy of the

passport, however, the IJ was “satisfied that that’s [the

October 2000 entry] in fact what the passport says.” A.R. 106.

The IJ continued the hearing on the understanding that DHS would

most likely amend the charge.

DHS did amend the charge, alleging that Urbina was

removable as an alien who overstayed his period of authorized

presence. In response, Urbina asserted that his original notice

to appear--which stopped the accrual of the requisite ten years’

continuous physical presence, see 8 U.S.C. § 1229b(d)(1)(A)--was

invalid. Thus, he contended, only the newly substituted charge

stopped the clock, and it did so after he had reached the ten-

year mark, making him eligible for cancellation of removal.

The IJ disagreed, and the Board of Immigration Appeals

dismissed Urbina’s appeal. Urbina filed a petition for review

in this court while simultaneously filing a motion to reconsider

with the BIA. The BIA denied the motion to reconsider and

Urbina petitioned for our review of that denial. The two

petitions for review are consolidated before us.

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II.

As he did before the IJ and the BIA, Urbina contends that

the original notice to appear was invalid and thus did not stop

the accrual of the ten-year statutory period. In the

alternative, he argues that the IJ erred in denying his motion

to terminate and in continuing the proceedings to allow DHS to

amend the charge against him. Urbina further asserts that DHS

did not have the authority to promulgate the regulation

permitting such an amendment. He also raises a procedural due

process claim and challenges the BIA’s denial of his motion to

reconsider. We consider these arguments in turn.

A.

We begin with Urbina’s argument that his original notice to

appear was invalid. Urbina concedes that a valid notice to

appear stops the accrual of continuous physical presence

required for cancellation of removal. See 8 U.S.C.

§ 1229b(d)(1)(A) (explaining that the relevant time ends “when

the alien is served a notice to appear under section 1229(a) of

this title”). Urbina argues, however, that his original notice

to appear was invalid and thus did not activate that stop-time

rule. He primarily contends that the initial notice’s incorrect

charge renders it invalid. See id. § 1229(a)(1)(D) (requiring

specification of “[t]he charges against the alien and the

statutory provisions alleged to have been violated”). He also

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observes that the notice did not include the specific date and

time of the hearing, as required by 8 U.S.C. § 1229(a)(1)(G)(i).

See id. (“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 . . .

specifying the following: . . . [t]he time and place at which

the proceedings will be held.”). We find Urbina’s position

unpersuasive.

After the IJ’s ruling, but before deciding Urbina’s appeal,

the BIA issued a precedent decision holding that the stop-time

rule does not require that the notice to appear include the date

and time of a hearing. See In re Camarillo, 25 I. & N. Dec. 644

(B.I.A. 2011). In that case, the BIA determined that the

relevant statutory language is ambiguous: it says only that the

stop-time rule is triggered “when the alien is served a notice

to appear under section 1229(a) of this title.” 8 U.S.C.

§ 1229b(d)(1)(A). The BIA reasoned that this provision could be

read in two ways. It might require substantive compliance with

all requirements of § 1229(a)--the reading Urbina proposes here.

Or, it could simply specify the document as a definitional

matter. 25 I. & N. Dec. at 647.

The BIA resolved that ambiguity, deciding “that the key

phrase is ‘served a notice to appear.’” Id. Thus, “the best

reading of the statute as a whole is that Congress intended the

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phrase ‘under section [1229](a)’ after ‘notice to appear’ to

specify the document the DHS must serve on the alien to trigger

the ‘stop-time’ rule.” Id. The BIA further observed that the

stop-time provision refers broadly to the entirety of § 1229(a),

which includes procedures for changing the date and time of a

hearing. See id. at 647–48; see also 8 U.S.C. § 1229(a)(2).

Finally, the BIA reasoned that the Act’s legislative

history evinced a congressional intent to prevent aliens from

accruing time that would undermine deportation proceedings

already in progress. See 25 I. & N. Dec. at 649–50. According

to the BIA, “[a] primary purpose of a notice to appear is to

inform an alien that the Government intends to have him or her

removed from the country, but the inclusion of the date and time

of the hearing is not necessary for the Government’s intention

in this regard to be conveyed.” Id. at 650.

We analyze the BIA’s interpretation in accordance with

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). Under that precedent, “[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.” Id. at 842–43.

If, however, “the statute is silent or ambiguous with respect to

the specific issue, the question for the court is whether the

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agency’s answer is based on a permissible construction of the

statute.” Id. at 843.

As to the first step, we agree with the BIA that the

relevant statutory provision is ambiguous. Both the BIA’s and

Urbina’s readings are plausible in light of the text. And

because the BIA’s interpretation in Camarillo is plausible--for

the reasons the BIA gave in that case--it merits deference under

the second step. Thus, despite the missing date and time,

Urbina’s notice to appear was valid, and triggered the stop-time

rule.

We recognize that Camarillo does not directly address

whether its analysis would apply to incorrect charges as well as

missing dates and times. In a footnote, however, the BIA

suggested that “there is no reason to conclude that Congress

would have intended an alien to be able to accrue time between

service of the notice to appear and service of an I-261

[providing the “charges against the alien”], which may occur

much later and, in fact, ‘[a]t any time during the proceeding.’”

25 I. & N. Dec. at 650 n.7 (quoting 8 C.F.R. § 1240.10(e)).

We defer to this reasonable interpretation, although we

note that the notice to appear in this case substantially

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complied with the requirements of § 1229(a). 2 This is hardly a

case, moreover, where DHS brought trumped-up charges for the

purpose of stopping the clock; indeed, DHS initially relied on

Urbina’s own statements as to when he entered the country. We

do not decide today whether a more egregious case might warrant

a different result.

We thus deny this portion of Urbina’s petition.

B.

Urbina next argues that the IJ improperly denied his motion

to terminate the removal proceedings. He believes that if the

IJ had terminated the case, rather than continuing it so DHS

could amend the charge against him, the stop-time rule would

have been triggered only by the new charge--and after the ten

years had accrued. But in asking DHS to file the I-261 form,

the IJ did precisely what Urbina had originally requested. See

A.R. 99 (“We would just be seeking then an I-261 that would

reflect the proper change.”). Moreover, Urbina did not object

to the IJ’s decision to continue the case. See A.R. 108, 110–

11. We find no abuse of discretion on these facts. See Onyeme

2

Except for the deficiencies Urbina complains of here, the

notice to appear included the elements required by § 1229(a),

such as the nature of the proceedings against Urbina, the legal

authority under which the proceedings were conducted, Urbina’s

right to be represented by counsel, and the consequences of

failure to provide current contact information. Compare 8

U.S.C. § 1229(a)(1), with J.A. 185–86.

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v. U.S. I.N.S., 146 F.3d 227, 231 (4th Cir. 1998) (“[W]hen

reviewing the BIA’s decision upholding the IJ’s discretionary

action, we uphold the BIA’s decision unless it was made without

a rational explanation, it inexplicably departed from

established policies, or it rested on an impermissible basis,

e.g., invidious discrimination against a particular race or

group.” (internal quotation marks and alterations omitted)). We

therefore reject this claim of error.

C.

Urbina further complains that the amended charge itself is

invalid. In particular, he asserts that DHS did not have

authority to promulgate 8 C.F.R. § 1240.10(e), which permits DHS

to amend charges. See id. (“At any time during the proceeding,

additional or substituted charges of inadmissibility and/or

deportability and/or factual allegations may be lodged by [DHS]

in writing.”). Urbina reasons that the Immigration and

Nationality Act clearly provides for changes to the time and

date of proceedings on a notice to appear, see 8 U.S.C.

§ 1229(a)(2), but does not contain a similar provision for

amending charges. Thus, he contends, the regulation is invalid.

But “[b]ecause Congress expressly delegated to the Attorney

General the authority to establish such regulations as are

necessary for carrying out the INA, the challenged regulation

must be given controlling weight unless it is arbitrary,

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capricious, or manifestly contrary to the statute.” Suisa v.

Holder, 609 F.3d 314, 319 (4th Cir. 2010) (internal quotation

marks, citations, and alterations omitted). Although the

statute is silent regarding the amendment of charges, it is

sensible to allow DHS discretion to make changes as it acquires

more information. Because the regulation is hardly arbitrary or

capricious, we deny this part of Urbina’s petition.

D.

Next, Urbina contends that the IJ violated his procedural

due process right by pretermitting his application for

cancellation of removal. This is prejudicial, he argues,

because of “open factual issues” regarding his eligibility for

relief: that is, whether the court should measure the ten years

from Urbina’s purported January 1998 entry date, rather than the

October 2000 entry. Petitioner’s Br. at 33.

Given Urbina’s earlier contention that DHS should not have

given the 1998 entry date any credence, this argument strikes us

as dubious at best. In any event, we lack jurisdiction to

review it because Urbina failed to raise the question before the

BIA. “A court may review a final order of removal only if . . .

the alien has exhausted all administrative remedies available to

the alien as of right . . . .” 8 U.S.C. § 1252(d)(1). “We have

previously interpreted [§ 1252(d)(1)] as a jurisdictional bar.”

Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008). Because

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Urbina could have raised this claim before the BIA but chose not

to, we dismiss this part of his petition.

E.

Finally, Urbina asks that we reverse the BIA’s denial of

his motion to reconsider. We review such a denial for abuse of

discretion. See Narine v. Holder, 559 F.3d 246, 249 (4th Cir.

2009); see also Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir.

2009) (“The BIA’s denial of a motion to reopen is reviewed with

extreme deference . . . .” (internal quotation marks omitted)).

“[W]e can reverse only if the Board acted arbitrarily,

irrationally, or contrary to law.” Narine, 559 F.3d at 249

(internal quotation marks and citations omitted).

Urbina focuses on the BIA’s assertion that “the

inaccuracies in the original [notice to appear] were based upon

the respondent’s fraudulent statements in his previous sworn

applications for temporary protected status.” S.A.R. 4. Urbina

first complains that his statements were not in the record--

which is clearly incorrect. See A.R. 133, 138, 142, 146. More

colorably, he argues that the BIA overstepped its authority by

finding the statements “fraudulent,” as the IJ never made such a

finding itself.

As a result, Urbina contends, the BIA has failed to follow

its own regulations. See 8 C.F.R. § 1003.1(d)(3)(iv) (“Except

for taking administrative notice of commonly known facts such as

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current events or the contents of official documents, the Board

will not engage in factfinding in the course of deciding

appeals.”). This failure, he argues, creates reversible error

under the Accardi doctrine. See United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260, 268 (1954) (objecting to the BIA’s

failure to follow its valid regulations).

The BIA’s decision, however, makes clear that its reliance

on Camarillo serves as the primary basis for denial of the

motion for reconsideration. Because we have determined that

deference to Camarillo is appropriate, we need not reach the

BIA’s alternative rationale regarding fraud. 3 We thus deny this

portion of Urbina’s petition.

III.

For the foregoing reasons, Urbina’s petition is

DENIED IN PART

AND DISMISSED IN PART.

3

At oral argument, the government explained that the BIA’s

characterizations of fraud would not be held against Urbina in

any future proceeding. We have every expectation that DHS and

the BIA will abide by this representation.

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