Mario Ortiz-Santiago v. William P. Barr

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-3251

MARIO ORTIZ-SANTIAGO,

Petitioner,

v.

WILLIAM P. BARR, Attorney General of the United States,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

No. A206-788-936

____________________

ARGUED APRIL 8, 2019 — DECIDED MAY 20, 2019

____________________

Before WOOD, Chief Judge, and SCUDDER and ST. EVE, Cir-

cuit Judges.

WOOD, Chief Judge. Jurisdiction, the Supreme Court has re-

minded us, “is a word of many, too many meanings.” Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting

United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).

Petitioner Mario Ortiz-Santiago, who is seeking to avoid re-

moval from this country, now asks us to wade into those

murky waters. He contends that because the Notice to Appear

2 No. 18-3251

(“Notice”) sent to him by the Department of Homeland Secu-

rity (“DHS”) did not have the statutorily required time-and-

date information for his removal hearing, subject-matter juris-

diction never vested in the Immigration Court. This flaw, he

reasons, rendered the Notice so defective that it did not suffice

to trigger the Immigration Court’s jurisdiction over his case.

Because he never was properly placed in removal proceed-

ings, he concludes, the order of removal that the Immigration

Judge entered and the Board of Immigration Appeals af-

firmed must be vacated.

Ortiz-Santiago is correct that the Notice was procedurally

defective, but he overstates the problem. The requirement that

a Notice include, within its four corners, the time, date, and

place of the removal proceeding is not “jurisdictional” in na-

ture. It is instead the agency’s version of a claim-processing

rule, violations of which can be forfeited if an objection is not

raised in a timely manner. We thus hold, as have the Second,

Sixth, and Ninth Circuits, that an Immigration Court’s juris-

diction is secure despite the omission in a Notice of time-and-

place information. See Banegas Gomez v. Barr, — F.3d —, No.

15-3269, 2019 WL 1768914, at *6–8 (2d Cir. April 23, 2019); San-

tos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019); Karingithi v.

Whitaker, 913 F.3d 1158 (9th Cir. 2019); Hernandez-Perez v.

Whitaker, 911 F.3d 305 (6th Cir. 2018). Although we take a dif-

ferent path from those circuits to reach this conclusion, we

agree that nothing in Pereira v. Sessions, 138 S. Ct. 2105 (2018),

requires a different result. See also Villa Serrano v. Barr, — F.3d

—, No. 18-2886, 2019 WL 2052354, at *4 (7th Cir. May 9, 2019)

(noting but not deciding this issue). We therefore deny Ortiz-

Santiago’s petition for review.

No. 18-3251 3

I

Ortiz-Santiago is a Mexican citizen who has continuously

resided in the United States without legal status since 1999.

He is now about 50 years old. In October 2015, he was arrested

for driving without a license. Shortly thereafter Immigration

and Customs Enforcement served him with a document enti-

tled “Notice to Appear” for removal proceedings. See 8 U.S.C.

§ 1229(a). This Notice asserted that he is a removable nonciti-

zen because he entered the United States without being ad-

mitted or paroled. The Notice did not, however, include either

a time or date for Ortiz-Santiago’s hearing before the Immi-

gration Judge. This omission violated the Immigration and

Nationality Act. See 8 U.S.C. § 1229(a)(1)(G)(i) (requiring a

Notice to include “[t]he time and place at which the proceed-

ings will be held”). Cf. 8 C.F.R. § 1003.15(b), (c) (specifying the

contents of a Notice with no mention of time and date). The

Notice Ortiz-Santiago received said only that he should ap-

pear at the Office of the Immigration Judge in Chicago at a

date and time “to be set.” Shortly thereafter, the Immigration

Court sent Ortiz-Santiago a “Notice of Hearing,” setting his

hearing for November 12, 2015 at 10:30 a.m. More than a dec-

ade ago, we expressly approved this two-step procedure. See

Dababneh v. Gonzales, 471 F.3d 806, 809–10 (7th Cir. 2006).

During proceedings before the Immigration Judge on Au-

gust 24, 2016, Ortiz-Santiago conceded that he was subject to

removal. He nevertheless sought cancellation of removal

based on his having spent more than ten continuous years in

the United States, his good moral character, and the pur-

ported hardship that his removal would cause to his stepfa-

ther, who is a legal permanent resident. See 8 U.S.C.

§ 1229b(b). After a hearing, the Immigration Judge denied

4 No. 18-3251

cancellation, finding that Ortiz-Santiago had failed to show

the requisite hardship to his stepfather or his own good moral

character.

Ortiz-Santiago appealed that decision to the Board of Im-

migration Appeals (“the Board”). While his appeal was pend-

ing, the Supreme Court decided Pereira, which held that a No-

tice that lacked the statutorily-required time-and-date infor-

mation did not trigger the stop-time rule. 138 S. Ct. at 2118.

(That rule dictates the end-point of the non-citizen’s qualify-

ing residence in the United States for certain immigration ben-

efits.) The Court stated, without qualification, that “[a] docu-

ment that fails to include such information is not a ‘notice to

appear under section 1229(a)’ and thus does not trigger the

stop-time rule.” Id. Approximately two months after that de-

cision, but before the Board issued its decision in this case,

Ortiz-Santiago filed a motion to remand with the Board. He

took the Court at its word: no time-and-date information, he

believed, was the same as no Notice at all. See 8 C.F.R.

§ 1003.14 (stating that “jurisdiction vests … when a charging

document [including a Notice to Appear] is filed with the Im-

migration Court”). In his view, all he received was a useless

piece of paper that did not suffice to initiate anything. The

Board denied Ortiz-Santiago’s motion to remand and, on de

novo review, it affirmed the Immigration Judge’s finding that

he failed to show that his stepfather would suffer sufficient

hardship to warrant cancellation. This timely petition for re-

view, in which Ortiz-Santiago emphasizes his “jurisdictional”

argument, followed.

No. 18-3251 5

II

A

As with all questions of statutory interpretation, we start

with the statute’s text. In relevant part, 8 U.S.C.

§ 1229(a)(1)(G)(i) states that:

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 per-

son 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) speci-

fying the following: … The time and place at

which the proceedings will be held.

Neither that provision, nor any other within the Immigra-

tion and Nationality Act, says anything about when the Im-

migration Court is formally authorized to proceed with the

case. The agency thus issued implementing regulations,

which do the following: 8 C.F.R. § 1003.14 states that “juris-

diction vests” when a charging document is filed with the Im-

migration Court; 8 C.F.R. § 1003.13 defines a charging docu-

ment as one of several forms, among which is a Notice; and

8 C.F.R. § 1239.1 specifies that a Notice is the only way to

begin a removal proceeding.

But saying that “jurisdiction” vests with the Immigration

Court upon the filing of a Notice to Appear is unhelpful with-

out defining what that Notice must include in order to have

that effect. Both the statute and the regulations attempt to ad-

dress this question. As described above, 8 U.S.C. § 1229(a) de-

scribes a Notice as “written notice … given … to the alien …

specifying” various things including the government’s

6 No. 18-3251

allegations, the noncitizen’s rights and responsibilities, and

the “time and place at which the proceedings will be held.”

The relevant regulations, 8 C.F.R. §§ 1003.15 and 1003.18, pro-

vide that a Notice must contain similar information. Im-

portantly, however, neither regulation repeats the require-

ment that a Notice contain the “time and place” of the re-

moval proceedings. Instead, 8 C.F.R. § 1003.18(b) says only

that the “time, place and date” of the initial hearing be pro-

vided “where practicable.” At least in the last few years, DHS

apparently never found it “practicable” to send Notices that

contained time and date information. See Pereira, 138 S. Ct. at

2111 (noting that “almost 100 percent” of Notices from the

previous three years omitted time and date information). In-

stead, DHS sent Notices with no date or time for the initial

hearing and used a place-filler indicating that this infor-

mation was “to be set.” At some point after the Notice was

sent—sometimes the same day, sometimes months later—the

Immigration Court would send the noncitizen a “Notice of

Hearing” detailing when and where she was required to ap-

pear.

Until recently, few if any courts were troubled by this in-

consistency between the statutory and regulatory text. We

certainly were not. To the contrary, we upheld this notifica-

tion procedure against multiple attacks in the years between

1997 (the year that both the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”) and this im-

plementing regulation became effective) and now. In

Dababneh, we held that “the fact that the government fulfilled

its requirements under INA § 239(a) in two documents did

not strip the [Immigration Judge] of jurisdiction.” 471 F.3d at

810. We also held that the two-document procedure was suf-

ficient to trigger the stop-time rule that governs the end of the

No. 18-3251 7

non-citizen’s “period of continuous physical presence.” Id.,

citing 8 U.S.C. § 1229b(d)(1) (the stop-time rule). And in Yi Di

Wang v. Holder, 759 F.3d 670 (7th Cir. 2014), we held that the

Board permissibly interpreted section 1229b(d)(1) to allow the

stop-time rule to be triggered by a Notice without time-and-

place information, without regard to whether a separate No-

tice of Hearing was later sent. Id. at 674–75. We were not an

outlier in reaching this conclusion: every circuit court but one

to address the issue upheld the Board’s interpretation. See Pe-

reira, 138 S. Ct. at 2113 n.4 (collecting cases).

Much of that changed with Pereira. The question presented

to the Court in that case was the same as the one we faced in

Yi Di Wang: whether DHS’s failure to include time-and-date

information in a document labeled “Notice to Appear” would

still allow that document to trigger the stop-time rule. Pereira,

138 S. Ct. at 2110. The Court found the answer to that question

“as obvious as it seems: No.” Id. It determined that “[t]he

plain text, the statutory context, and common sense all [led]

inescapably and unambiguously to” its conclusion. Id.

The relevant statutory provisions, the Court said, were un-

ambiguous and thus not amenable to agency interpretation or

an appropriate subject for agency deference. The stop-time

rule is explicitly triggered by the service “of a notice to appear

under section 1229(a).” 8 U.S.C. § 1229b(d)(1). Section 1229(a)

then states that a “notice to appear” is “a ‘written notice ...

specifying,’ as relevant here, ‘[t]he time and place at which the

[removal] proceedings will be held.’” Pereira, 138 S. Ct. at 2114

(quoting 8 U.S.C. § 1229(a)(1)(G)(i)). Combined, the “plain

text” thus required that in order to trigger the stop-time rule

“the Government must serve a notice to appear that, at the

8 No. 18-3251

very least, ‘specif[ies]’ the ‘time and place’ of the removal pro-

ceedings.” Id.

The surrounding statutory subsections bolstered the

Court’s conclusion. Section 1229(a)(2) enables the govern-

ment to change the time and place of the noncitizen’s hearing.

But the ability to change or postpone the hearing presupposes

that the Notice had to specify a time and place in the first in-

stance. Pereira, 138 S. Ct. at 2114. A contrary interpretation, the

Court feared, would allow the government to subvert section

1229(b)(1)’s protection of the noncitizen’s ability to secure

counsel. That provision dictates that no hearing may occur

within ten days of the Notice’s service, so that the noncitizen

has time to secure counsel. But if the government could send

a Notice with no time or date for the hearing without conse-

quence, “the Government could serve a document labeled

‘notice to appear’ without listing the time and location of the

hearing and then, years down the line, provide that infor-

mation a day before the removal hearing when it becomes

available.” Pereira, 138 S. Ct. at 2114–15. This would gut sec-

tion 1229(b)(1)’s protections. The Court also appealed to com-

mon sense in support of its reading of the statute. If the words

“notice to appear” mean anything, the Court reasoned, they

must mean providing enough “notice” of the information to

allow a noncitizen “to appear” for a hearing, i.e. the time and

place of that hearing. Id.

We see two key features in Pereira’s analysis. First, Pereira

focused on one issue at the intersection of two statutory pro-

visions: the stop-time rule and section 1229(a)’s requirements

for a Notice. See id. at 2110. As the Court recognized, this is a

narrow question. It is thus not surprising that the opinion dis-

cussed only the relevance of the omission of time-and-place

No. 18-3251 9

information for purposes of the duration of residence in the

United States. See id. at 2113.

Nonetheless, Pereira is not a one-way, one-day train ticket.

The Court stated more generally that section 1229(a) speaks

“in definitional terms” when referring to time-and-place in-

formation. Id. at 2116. It worried that not including time-and-

place information would “deprive [the notice to appear] of its

essential character.” Id. at 2116–17. And it thought that “the

statute makes clear that Congress fully intended to attach sub-

stantive significance to the requirement that noncitizens be

given notice of at least the time and place of their removal

proceedings.” Id. at 2118. Ultimately, it announced that

“when the term ‘notice to appear’ is used elsewhere in the

statutory section, including as the trigger for the stop-time

rule, it carries with it the substantive time-and-place criteria

required by § 1229(a).” Id. at 2116 (emphasis added). What the

Court did not resolve, however, was what should happen if

the time and place are missing. It is to that question that we

now turn.

B

We start with the uncontroversial proposition that an

agency has no power to rewrite the text of a statute. See Chev-

ron v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842–43

(1984). If Congress has defined a term, then an implementing

regulation cannot re-define that term in a conflicting way. We

thus conclude that the Notice Ortiz-Santiago received was de-

fective. Congress defined a “Notice to Appear” as a document

containing a specific list of required information, including

“[t]he time and place at which the proceedings will be held,”

8 U.S.C. § 1229(a)(1)(G)(i), and his Notice omitted that infor-

mation. As the Supreme Court found, Congress’s language

10 No. 18-3251

was “definitional,” and time-and-place information was “un-

questionably” part of a Notice’s “essential character.” Pereira,

138 S. Ct. at 2116–17.

The government’s efforts to salvage the Notice are unper-

suasive. It wants us to find that 8 C.F.R. § 1239.1, entitled “No-

tice to Appear,” is not talking about the same “Notice to Ap-

pear” that is defined in the statute. See also 8 C.F.R.

§§ 1003.15, 1003.18 (also referring to a “Notice to Appear”).

That is absurd. The regulation itself refers to 8 U.S.C. § 1229a,

which is also the reference point for 8 U.S.C. § 1229(a)(1)(G)(i),

where we find the time-and-place requirement. If that were

not enough, the government’s position also offends one of the

most basic rules of statutory interpretation: “identical words

used in different parts of the same act are intended to have the

same meaning.” Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860

(1986).

The government also urges that it achieves substantial

compliance with the statute when it uses the two-step process,

first sending an incomplete Notice, and then filling in the

blanks for time and place in a later Notice of Hearing. The

Board adopted that position in Matter of Bermudez-Cota, 27 I.

& N. Dec. 441 (BIA 2018), in part by relying on our holding in

Dababneh. Id. at 445–47. We are not so sure. It appears to us

that Bermudez-Cota brushed too quickly over the Supreme

Court’s rationale in Pereira and tracked the dissenting opinion

rather than that of the majority.

It is also telling that Congress itself appears to have re-

jected the two-step approach when it passed IIRIRA. Before

that time, deportation proceedings began with a document

called an “Order to Show Cause.” See 8 U.S.C. § 1252b (1995).

The Order to Show Cause had to include largely the same

No. 18-3251 11

information as the later Notice to Appear, except that it did

not need to specify the time and place of the hearing. See id.

at § 1252b(a)(1). Instead, just as the Pereira dissenter and the

Bermudez-Cota decision would have it, the statute allowed the

time and place to be communicated to a non-citizen “in the

order to show cause or otherwise.” Id. (emphasis added). When

Congress enacted IIRIRA, it combined the separate provision

in section 1252b(1)(2)(A) with the other substantive require-

ments of the Order to Show Cause, and it came up with the

Notice to Appear. The “or otherwise” language disappeared.

The Board took no note of this statutory evolution in Bermu-

dez-Cota, nor did it explain how its decision complied with the

present statutory language. These omissions are troubling

enough to cause us to refrain from resolving this case with a

simple citation to Bermudez-Cota.

III

A

If we had found that the two-step procedure that the

Board followed was compatible with the statute, we could

end our opinion here. Since we do not read the law that way,

however, we must move on to Ortiz-Santiago’s contention

that the failure to comply was an error of jurisdictional signif-

icance.

The parties have assumed that the lack of time-and-place

information affects the Immigration Court’s (and by exten-

sion our) subject-matter jurisdiction. That assumption may

have been a tactical one by both parties. It allows Ortiz-Santi-

ago to take the position that his complaint about the govern-

ment’s misstep is not untimely, and it allows the government

to raise the dire possibility that adopting Ortiz-Santiago’s

12 No. 18-3251

position would cause thousands, if not millions, of removal

proceedings to be void ab initio. See, e.g., Hernandez-Perez, 911

F.3d at 314 (contemplating this latter possibility). We are not

bound by their framing of the issue, however, and so we re-

gard that characterization as a question to be resolved.

As we acknowledged at the outset, not every error is juris-

dictional. In recent years the Supreme Court has “pressed a

stricter distinction between truly jurisdictional rules, which

govern ‘a court’s adjudicatory authority,’ and nonjurisdic-

tional ‘claim-processing rules,’ which do not.” Gonzalez v. Tha-

ler, 565 U.S. 134, 141 (2012) (citing Kontrick v. Ryan, 540 U.S.

443, 454–55 (2004)). (Granted, that line of authority arose in

the context of the courts rather than agencies, but we find the

principle a useful one here as well.) Gonzalez limited jurisdic-

tional rules to those that “clearly state[] that a threshold limi-

tation on a statute’s scope shall count as jurisdictional.” 565

U.S. at 141 (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 515

(2006)).

Unlike a limitation on a court’s subject-matter jurisdiction,

a claim-processing rule is one that “seek[s] to promote the or-

derly progress of litigation by requiring that the parties take

certain procedural steps at certain specified times.” Henderson

ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). The

“quintessential” example of a claim-processing rule is a filing

deadline. United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632

(2015). Even a claim-processing rule that is “framed in man-

datory terms” does “not deprive a court of authority to hear a

case.” Id. “[I]ndeed, that is so however emphatically ex-

pressed those terms may be.” Id. (quoting Henderson, 562 U.S.

at 435) (alterations and internal quotation marks omitted).

No. 18-3251 13

Applying that analysis to the situation before us, we see a

statute (8 U.S.C. § 1229(a)(1)(G)(i)) that says nothing about the

agency’s jurisdiction. It simply sets out the information that

must be included in a Notice to Appear. That does not mean

that the statute is unimportant or can be ignored. It simply

means that an aggrieved party can forfeit any objection she

has by failing to raise it at the right time. See Kontrick, 540 U.S.

at 456–58.

The fact that the Executive Office for Immigration Review

of the Department of Justice purported to describe when “ju-

risdiction” vests in a case before an immigration court is nei-

ther here nor there. See 8 C.F.R. § 1003.14(a). While an agency

may adopt rules and processes to maintain order, it cannot

define the scope of its power to hear cases. What the Executive

Office was doing was establishing exactly what it takes

properly to commence a case before it. That decision is not

one of jurisdictional significance in the same sense that com-

plete diversity or the existence of a federal question is for a

district court. Nonetheless, when the agency creates the rules

for its adjudicatory proceedings, it must act within the limits

that Congress gave it.

A failure to comply with the statute dictating the content

of a Notice to Appear is not one of those fundamental flaws

that divests a tribunal of adjudicatory authority. Instead, just

as with every other claim-processing rule, failure to comply

with that rule may be grounds for dismissal of the case. See

generally Carlisle v. United States, 517 U.S. 416 (1996) (uphold-

ing the denial of a motion for judgment of acquittal that was

filed one day late upon the government’s objection). But such

a failure may also be waived or forfeited by the opposing

party. See Eberhart v. United States, 546 U.S. 12, 19 (2005)

14 No. 18-3251

(finding forfeiture because the government did not raise a

timeliness objection before the district court).

As our sister circuits and the Board have noted, it is telling

that the Supreme Court made no mention of jurisdiction in

Pereira. See Karingithi, 913 F.3d at 1161; Hernandez-Perez, 911

F.3d at 314; Bermudez-Cota, 27 I. & N. Dec. at 443–44. That

makes sense: there is no reason why the Court needed to do

so. And had it found a lack of jurisdiction, it would not have

remanded for further proceedings.

B

With that framework established, we turn back to Ortiz-

Santiago. Ortiz-Santiago did not raise DHS’s failure to include

the time and date of his removal hearing until his appeal of

the Immigration Judge’s decision was already pending with

the Board. In the usual case, we would have no trouble saying

that his delay resulted in the forfeiture of this point. Indeed,

Ortiz-Santiago complained about the defect in the Notice only

after Pereira was decided and he saw the possibility of wiping

out his entire immigration proceeding. The question is thus

whether Pereira was a sufficient intervening cause to excuse

an otherwise clear case of forfeiture, and if not, whether Ortiz-

Santiago’s forfeiture should be forgiven for some other rea-

son.

Generally, a party wishing to object to a violation of a

claim-processing rule must make a timely objection. See Eber-

hart, 546 U.S. at 19 (“[W]here the Government failed to raise a

defense of untimeliness until after the District Court had

reached the merits, it forfeited that defense.”); Grigsby v. Cot-

ton, 456 F.3d 727, 731 (7th Cir. 2006) (finding forfeiture where

No. 18-3251 15

the government failed to object to a habeas petitioner’s time-

liness or procedural default in the district court).

Here, Ortiz-Santiago’s objection hinged on Pereira’s inter-

pretation of section 1229(a). Before Pereira, such an objection

would have been regarded in most—though importantly not

all—courts as meritless. We had rejected the exact argument

Ortiz-Santiago sought to make about section 1229(a)’s time-

and-place information requirement and its effect on the Im-

migration Court’s jurisdiction. See Dababneh, 471 F.3d at 808–

10. Most of the other courts of appeals were in accord.

Pereira thus represented a genuine change in circum-

stances. Courts are normally obliged to apply changes in the

law that occur while they continue to have power to adjudi-

cate the case before them. In matters of equity, that duty may

extend even beyond a final judgment. See Pennsylvania v.

Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1865).

Generally speaking, the obligation to apply changes in the

law extends through a party’s direct appeal. See Henderson,

568 U.S. at 276 (citing United States v. Schooner Peggy, 5 U.S. (1

Cranch) 103 (1801)); Richardson v. United States, 379 F.3d 485,

487 (7th Cir. 2004) (“It is well-established that a court gener-

ally applies the law in effect at the time of its decision, and

that if the law changes while the case is on appeal the appel-

late court applies the new rule.”).

But that does not mean that a party may always stand si-

lent if a potential problem exists. In Ortiz-Santiago’s case,

there were signs that a meritorious argument could be raised.

He could have noted both the clear statutory text and the fact

that the Third Circuit disagreed with Dababneh’s and Yi Di

Wang’s treatment of Notices in the stop-time context. See

Orozco-Velasquez v. Attorney General[,] United States, 817 F.3d

16 No. 18-3251

78, 81–83 (3d Cir. 2016). Orozco-Velasquez, importantly, was

decided several months before the Immigration Judge issued a

merits decision in Ortiz-Santiago’s case.

We see no reason on this record to relieve Ortiz-Santiago

of this forfeiture. Cf. Freytag v. Comm’r of Internal Revenue, 501

U.S. 868, 879 (1991). This is not a case in which the Notice of

Hearing never reached him, or it came so quickly that he had

trouble preparing for the hearing, or any other discernible

prejudice occurred. And if we are considering the equities, we

must add to the scales the severity of the consequences and

the impact on the government of insisting on compliance at

this late date. (We presume that the government even now

could issue a compliant Notice to Appear and proceed with a

new case against Ortiz-Santiago; but that is cold comfort

given the resources that already have been invested in this

matter.) If Ortiz-Santiago had raised a prompt objection to the

Notice, the Immigration Judge could and should have

quashed it for noncompliance with the statute. A new, com-

pliant Notice could have issued, and the case could have pro-

ceeded. The fact that the agency’s regulations require only

that the Department of Homeland Security provide time-and-

place information “where practicable” does not, as we have

said, dilute the statutory requirements. See 8 C.F.R.

§ 1003.18(b).

The courts of appeals operate under a similar system. In

order to file a proper appeal in a federal court of appeals, the

district-court loser must lodge a notice of appeal in the district

court within a specified time, and then the district clerk must

serve a copy of the notice of appeal on all counsel of record

and unrepresented parties and send a copy to the clerk of the

court of appeals. FED. R. APP. P. 3(a), (d). The rules specify

No. 18-3251 17

what a notice of appeal must include: the name of the appeal-

ing party or parties; the judgment or order from which the

appeal is taken; and the court to which the appeal is directed.

Id., Rule 3(c)(1). But—and here is the point that is pertinent to

the present case—the rules go on to say that appeals must not

be dismissed “for informality of form or title of the notice of

appeal, or for failure to name a party whose intent to appeal

is otherwise clear from the notice.” Id., Rule 3(c)(4). Indeed,

the Supreme Court has held that even the absence of a signa-

ture on a notice of appeal does not automatically require the

court of appeals to dismiss the appeal. Becker v. Montgomery,

532 U.S. 757, 760 (2001). The lack of a signature, it said, is a

curable lapse rather than a jurisdictional flaw.

We see no reason not to apply the same approach here.

Relief will be available for those who make timely objections,

as well as those whose timing is excusable and who can show

prejudice. See, e.g., Pereira, 138 S. Ct. at 2112 (explaining that

Pereira never received his Notice of Hearing despite provid-

ing a change of address to DHS). And we urge the Depart-

ment of Homeland Security to be more scrupulous in its stat-

utory compliance: it is much easier to do things right the first

time than to do them over.

IV

Anticipating that we might uphold the Notice to Appear,

Ortiz-Santiago also asks us to remand his case to the Board

for reconsideration of his character and his showing that his

legal-permanent-resident stepfather will experience “excep-

tional and extremely unusual” hardship if Ortiz-Santiago is

removed. But on this point Congress has imposed a jurisdic-

tional bar. See 8 U.S.C. § 1252(a)(2)(B). Ortiz-Santiago’s argu-

ments for relief are attacks on the merits of the Board’s

18 No. 18-3251

reasoning; he believes that the Board did not fully appreciate

the extent of harm to his stepfather that the loss of his remit-

tances will cause. This attack on the merits raises no “consti-

tutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D),

and so we have no jurisdiction to consider it. See Stepanovic v.

Filip, 554 F.3d 673, 677–78 (7th Cir. 2009) (explaining that 8

U.S.C. § 1252(a)(2)(D) allows only review of “pure” questions

of law).

***

In order to proceed in its attempt to remove Ortiz-Santiago

from the United States, DHS should have provided him with

a statutorily compliant Notice to Appear and filed that notice

with the Immigration Court. It failed to do so when it omitted

the time and date of Ortiz-Santiago’s removal hearing from

that Notice. But this was a failure to follow a claim-processing

rule, not a jurisdictional flaw. Because Ortiz-Santiago did not

timely object to the government’s misstep and cannot show

that he was prejudiced by the noncompliant form, we DENY

his petition for review.