Gilberto Garcia-Romo v. William P. Barr

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0255p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GILBERTO GARCIA-ROMO, ┐

Petitioner, │

│

> No. 18-3857

v. │

│

│

WILLIAM P. BARR, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals;

No. A 205 151 390.

Argued: August 7, 2019

Decided and Filed: October 4, 2019

Before: ROGERS, BUSH, and LARSEN, Circuit Judges.

_________________

COUNSEL

ARGUED: Alexander H. Park, LEWIS, THOMASON, KING, KRIEG & WALDROP, P.C.,

Memphis, Tennessee, for Petitioner. Michelle R. Slack, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Alexander H. Park, Rehim

Babaoglu, LEWIS, THOMASON, KING, KRIEG & WALDROP, P.C., Memphis, Tennessee,

for Petitioner. Brooke M. Maurer, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. This case presents the following central question: may

“a notice to appear” for a removal proceeding under 8 U.S.C. §§ 1229(a), 1229b(d)(1) be served

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upon a noncitizen1 through service of more than one written communication and still constitute

such “notice” if those multiple installments collectively give the noncitizen all of the information

required to be provided by § 1229(a)(1)(A)-(G)? Petitioner, Gilberto Garcia-Romo, a noncitizen,

says no. He argues that “a notice to appear” means that all of the information required by

§ 1229(a)(1)(A)-(G) must be provided in a single document served upon him in order for such

“notice” to be effectuated. As discussed below, we disagree, and for that principal reason we

deny Garcia-Romo’s petition for review of a final order of his removal from this country as

affirmed by the Board of Immigration Appeals (“BIA” or “Board”).

Before addressing the “notice to appear” issue, however, we should explain how this

issue arises here. Garcia-Romo filed an application with the Immigration Court to cancel his

removal order, seeking a form of discretionary relief that the Attorney General may grant to

noncitizens to allow them to remain in the United States if they meet certain eligibility

requirements under 8 U.S.C. § 1229b(b)(1). One of those requirements is that the alien “has

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). Under the “stop-

time” rule set forth in § 1229b(d)(1), the accrual period of continuous physical presence is

“deemed to end . . . when the alien is served a notice to appear under section 1229(a).” A “notice

to appear,” as defined and referred to in § 1229(a)(1), specifies that the noncitizen be provided

with written notice of several different categories of information, described in subsections

(A)-(G) of that statutory provision. One of those categories is “[t]he time and place at which the

[removal] proceedings will be held.” Id. § 1229(a)(1)(G).

Garcia-Romo received a document entitled “Notice to Appear” from the Department of

Homeland Security (“DHS”) that contained all of the required information under

§ 1229(a)(1)(A)-(G) except for the time and date of the removal proceedings. The Immigration

Court later sent Garcia-Romo a document entitled “Notice of Hearing in Removal Proceedings,”

which provided the required time-and-date information. Thus, there is no dispute that, through

1Consistent with the Supreme Court, we use the term “noncitizen” in this opinion “to refer to any person

who is not a citizen or national of the United States.” Pereira v. Sessions, 138 S. Ct. 2105, 2110 n.1 (2018) (citing

8 U.S.C. § 1101(a)(3)).

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the two referenced written communications, Garcia-Romo received all of the categories of

information required to be served by § 1229(a)(1)(A)-(G). Nonetheless, relying on Pereira v.

Sessions, 138 S. Ct. 2105 (2018), Garcia-Romo argues that the stop-time rule was never

triggered in his removal proceedings because he never received a single document that contained

all requisite categories.

For the reasons explained below, in light of the ordinary meaning of the relevant statutory

text, the stop-time rule is triggered when a noncitizen has received all of the required categories

of information of § 1229(a)(1)(A)-(G) whether sent through a single written communication or in

multiple written installments. Even if the statutory text were ambiguous, we would be required

by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) to

defer to the BIA’s interpretation of the statute, which accords with ours. We therefore DENY

Garcia-Romo’s petition for review.

I.

Garcia-Romo is a native and citizen of Guatemala who entered the United States without

the government’s authorization sometime in 2002. On February 29, 2012, DHS served Garcia-

Romo with a document entitled “Notice to Appear.” A.R. at 794–95. The document indicated

that Garcia-Romo was charged as subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) and

ordered him to appear “on a date to be set at a time to be set” to show why he should not be

removed from the United States. A.R. at 794. Approximately two months later, on April 30,

2012, Garcia-Romo received another document entitled “Notice of Hearing in Removal

Proceedings,” indicating that his removal proceedings were scheduled on December 19, 2012, at

9:00 a.m. A.R. at 793.

During the December proceedings, Garcia-Romo, appearing with counsel, indicated that

he would apply for cancellation of removal and also conceded his charges of removability.

A little over two years later, on February 25, 2014, Garcia-Romo timely filed his “Application

for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents,”

arguing that he was eligible for relief under 8 U.S.C. § 1229b(b). After a hearing, the

immigration judge denied Garcia-Romo’s application for cancellation of removal.

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The immigration judge reasoned that Garcia-Romo failed prove that he had been continuously

present in the United States for the ten years preceding the service of his February 29, 2012

“Notice to Appear.” To support this conclusion, the immigration judge pointed to evidence in

the administrative record showing that Garcia-Romo “was arrested by immigration officials on

April 25, 2005 and was voluntarily removed to Mexico.” A.R. at 63.

Garcia-Romo appealed the immigration judge’s order, and on August 17, 2018, the BIA

dismissed the appeal. The BIA concluded that Garcia-Romo’s “accrual of continuous physical

presence for cancellation purposes was terminated by the February 29, 2012, service of the

Notice to Appear . . . in combination with the subsequent Notice of Hearing dated April 30,

2012, informing the respondent of the date, time and place of his hearing.” A.R. at 3 (citing

8 U.S.C. § 1229b(d)(1); Pereira v. Sessions, 138 S. Ct. 2105 (2018)). Thus, Garcia-Romo

“needed to demonstrate that he was continuously physically present in the United States for

10 years prior to the receipt of his April 30, 2012 Notice of Hearing.” The BIA held that Garcia-

Romo failed to make this showing, because of the evidence showing that Garcia-Romo was

apprehended and returned to Mexico in April 2005. Accordingly, the BIA dismissed the appeal.

This timely petition followed.

II.

“Where the BIA reviews the immigration judge’s decision and issues a separate opinion,

rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision

as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (citation

omitted). “To the extent the BIA adopted the immigration judge’s reasoning, however, [we] also

review[] the immigration judge’s decision.” Id. (citation omitted). We review questions of law

de novo, “but substantial deference is given to the BIA’s interpretation of the [Immigration and

Nationality Act] and accompanying regulations.” Id. (citing Morgan v. Keisler, 507 F.3d 1053,

1057 (6th Cir. 2007)). The immigration judge’s and the Board’s factual findings, by contrast, are

reviewed under the substantial-evidence standard. Ben Hamida v. Gonzales, 478 F.3d 734, 736

(6th Cir. 2007). Thus, the immigration judge’s and the Board’s factual findings “are conclusive

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unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B).

Before we turn to the crux of this case, we must address the government’s assertion that

we lack jurisdiction because Garcia-Romo did not exhaust his administrative remedies. As the

government sees it, Garcia-Romo failed to exhaust his administration remedies because he “did

not include in his appeal to the Board any argument regarding the sufficiency of the [notice to

appear] or subsequent notice of hearing and whether the service of those documents effectively

triggered the stop-time rule for cancellation of removal.” Resp’t Br. at 7.

Under the Immigration and Nationality Act, this court has jurisdiction to review

“constitutional claims or questions of law” presented in a timely petition for review. 8 U.S.C.

§ 1252(a)(2)(D). However, as required by the statute, a court of appeals “may review a final

order of removal only if,” in addition to one other requirement not relevant here, “the alien has

exhausted all administrative remedies to the alien as of right.” Id. § 1252(d)(1); see also

Suassuna v. INS, 342 F.3d 578, 583 (6th Cir. 2003) (“The statute governing [the courts of

appeals’ jurisdiction] to review an order of deportation requires the exhaustion of administrative

remedies.”). “The purpose of section 1252(d)(1)’s exhaustion requirement is (1) to ensure that

the agency responsible for constructing and applying the immigration laws and implementing

regulations, has had a full opportunity to consider a petitioner’s claims; (2) to avoid premature

interference with the agency’s processes; and (3) to allow the BIA to compile a record which is

adequate for judicial review.” Bi Xia Qu v. Holder, 618 F.3d 602, 609 (6th Cir. 2010) (alteration

omitted) (quoting Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004)).

As a general rule the exhaustion requirement requires that the petitioner press all

reviewable issues to the BIA and each issue “must be reasonably developed in the petitioner’s

brief to the BIA.” Khalili, 557 F.3d at 432–33 (citing Sterkaj v. Gonzales, 439 F.3d 273, 279

(6th Cir. 2006); Hasan v. Ashcroft, 397 F.3d 417, 420 (6th Cir. 2005)). However, when the

Board sua sponte decides an issue not formally presented to it in the party’s briefing or in the

party’s Notice of Appeal, “the BIA’s action waives that issue’s exhaustion requirements.”

Khalili, 557 F.3d at 435.

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In its opinion below, the BIA concluded that “accrual of continuous physical presence for

cancellation purposes was terminated by the February 29, 2012, service of the Notice to Appear

(NTA) . . . in combination with the subsequent Notice of Hearing dated April 30, 2012,

informing the respondent of the date, time and place of his hearing.” A.R. at 3 (citing 8 U.S.C.

§ 1229a(d)(1); Pereira v. Sessions, 138 S. Ct. 2105 (2018)). The Board reached this conclusion

without invitation or argument from Garcia-Romo or the government. True, as the government

noted at oral argument, the BIA summarily concluded without reasoned analysis that the stop-

time rule was triggered after the service of the Notice of Hearing dated April 30, 2012. Oral

Arg. at 14:12–32. But that does not mean that the BIA did not raise the issue sua sponte.

Indeed, if the Board did not wish to address the issue of whether the ten-year continuous

presence requirement was satisfied, it could have considered the issue forfeited and dismissed the

appeal because of Garcia-Romo’s failure to brief when the accrual period ended. See 8 C.F.R.

§ 1003.1(d)(2)(i). Instead, the BIA decided that the “Notice to Appear” (which omitted time-

and-date information) and the subsequent “Notice of Hearing in Removal Proceedings” (which

included the previously omitted time-and-date information) triggered the stop-time rule in this

case and that substantial evidence in the record supported the immigration judge’s conclusion

that Garcia-Romo did not satisfy the continuous presence requirement under 8 U.S.C.

§ 1229b(b)(1)(A).

Thus, when the BIA concluded that the stop-time rule was triggered in this case, Garcia-

Romo was entitled to challenge this aspect of the BIA’s decision in a petition for review in this

court. The BIA’s determination that the “Notice of Hearing in Removal Proceedings,” dated

April 30, 2012, triggered the stop-time rule must be based on a permissible reading of the statute.

And if the BIA erred in reaching this sua sponte conclusion, the exhaustion requirement under

8 U.S.C. § 1252(d)(1) does not bar Garcia-Romo from raising this issue in a petition for review

in this court. Accordingly, we have jurisdiction to reach the merits of Garcia-Romo’s sole issue

in this petition.

III.

As indicated above, the issue before us is whether the government is required to satisfy

the requirements of 8 U.S.C. § 1229(a)(1)(A)-(G) in a single document, rather than in multiple

No. 18-3857 Garcia-Romo v. Barr Page 7

installments, in order to serve “a notice to appear” as used in § 1229b(d)(1) and thus trigger the

stop-time rule in that latter statutory provision.

We consider this legal question of statutory interpretation de novo. See United States v.

Kassouf, 144 F.3d 952, 955 (6th Cir. 1998). We start with the text of the relevant provisions—

here, 28 U.S.C. §§ 1229(a)(1), 1229b(d)(1)—“giving the words used their ordinary meaning,”

Artis v. District of Columbia, 138 S. Ct. 594, 603 (2018) (citation and internal quotation marks

omitted), based on usage at the time of the statute’s enactment, see, e.g., New Prime Inc. v.

Oliveira, 139 S. Ct. 532, 539 (2019) (citations omitted); Wisc. Cent. Ltd. v. United States, 138 S.

Ct. 2067, 2070 (2018). The words are to “be read in their context and with a view to their place

in the overall statutory scheme.” Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)

(citation omitted); see also Nat’l Air Traffic Controllers Ass’n v. Sec’y of Dep’t of Transp.,

654 F.3d 654, 657 (6th Cir. 2011) (“Plain meaning is examined by looking at the language and

design of the statute as a whole.” (citation omitted)).

Under this statutory scheme, Congress has given the Attorney General the discretion to

cancel the removal or adjust the status of certain nonpermanent residents. 8 U.S.C. § 1229b(b).

A nonpermanent resident who applies to cancel her or his removal order must show, among other

requirements,2 that she or he “has been physically present in the United States for a continuous

period of not less than 10 years immediately preceding the date of such application.” 8 U.S.C.

§ 1229b(b)(1)(A). Although § 1229b(b)(1)(a) establishes that the ten-year period is measured by

the “date of such application,” Congress also established a separate stop-time rule that measures

the ten-year period based on different intervening events. Id. § 1229b(d)(1). Relevant here is the

provision under § 1229b(d)(1), which states that “any period of continuous residence or

continuous physical presence in the United States shall be deemed to end . . . when the

[noncitizen] is served a notice to appear under section 1229(a) of this title.” § 1229b(d)(1).3

2The noncitizen also must demonstrate that she or he has been a person of good moral character during the

ten-year period and has not been convicted of an offense listed under the statute, and must establish that removal

would result in exceptional and extremely unusual hardship to the noncitizen’s spouse, parent, or child who is a

citizen of the United States or a noncitizen who is a lawful permanent resident. 8 U.S.C. § 1229b(b)(1)(B)-(D).

3The statute indicates that the stop-time rule also may be triggered when a noncitizen commits an offense

referred to in § 1182(a)(2) that in turn renders her or him removable or inadmissible. 8 U.S.C. § 1229b(d)(1)(B).

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The text clearly indicates that the noncitizen must receive “a notice to appear under

1229(a)” to trigger the stop-time rule. Based upon the cross-reference to § 1229(a) and express

reference to “a notice to appear” in § 1229b(d)(1), only “a notice to appear” described in

paragraph (1) of § 1229(a) will trigger the stop-time rule. Accord Pereira, 138 S. Ct. at 2114

(“It is true . . . that the stop-time rule makes broad reference to the notice to appear under

‘section 1229(a),’ which includes paragraph (1) as well as paragraphs (2) and (3). But the broad

reference to § 1229(a) is of no consequence, because . . . only paragraph (1) bears on the

meaning of ‘notice to appear.’” (internal citations omitted)).

Section 1229(a)(1), in turn, describes “a notice to appear” and states, “[i]n 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 required categories of

information listed in subsections (A) through (G). As explained in Pereira, this is

“quintessential definitional language.” 138 S. Ct. at 2116. In other words, the statute sets forth

the necessary categories of information that a noncitizen must receive in her or his “written

notice” in order for such notice to qualify as “a notice to appear” under § 1229(a)(1). This, of

course, requires that the noncitizen be given notice of all of the categories in

§ 1229(a)(1)(A)-(G), including “[t]he time and place at which the proceedings will be held.”

8 U.S.C. § 1229(a)(1)(G)(i).

There is no question that the document Garcia-Romo received bearing the title “Notice to

Appear”—which lacked the requisite time-and-date information, but otherwise contained all the

other required information under § 1229(a)(1)— was not, standing alone, sufficient to qualify as

“a notice to appear” within the meaning of § 1229(a)(1) for purposes of triggering the stop-time

rule. Pereira, 138 S. Ct. at 2114, 2116. But that does not answer the question of whether the

government can meet its notice obligation under § 1229(a) by sending Garcia-Romo a second

written communication, as it did through the “Notice of Hearing in Removal Proceedings,” that

provides him with the time-and-date information that was missing in the first communication.

Garcia-Romo argues that the statute precludes the government from “curing” its

incomplete initial communication with a supplemental communication. To support his

interpretation, Garcia-Romo focuses on the provision in § 1229b(d)(1) stating that service of

No. 18-3857 Garcia-Romo v. Barr Page 9

“a notice to appear” triggers the stop-time rule. (emphasis added). This language, according to

Garcia-Romo, “mandates service of a singular, compliant document” which contains “all of the

information required by Section 1229(a)(1)(A) through (G).” Pet’r Br. at 12.

This interpretation of the statute lacks merit. It gives too cramped a reading to the

meaning of the indefinite article “a” as understood in ordinary English. When the word “a”

precedes a noun such as “notice,” describing a written communication, the customary meaning

does not necessarily require that the notice be given in a single document. Rather, there may be

multiple communications that, when considered together, constitute “a notice.”

Consider, for example, an editor who tells an author that if she sends him “a book” he

will get it published. Suppose that, rather than send all chapters at once, the author submits her

writing piecemeal as it is drafted. Once she has sent all of the chapters to her editor, has she sent

“a book”? Most people would say yes. Maybe the editor expected that he would receive the

book in one submission, but the multiple installments nonetheless constitutes “a book” as

English is commonly used.

Or suppose a professor assigns each of her students to write “a paper.” The professor

explains that, for purposes of the assignment, the paper must contain an introduction, a body, and

a conclusion. One student turns in a document with an introduction and a body but neglects to

submit the conclusion. Once the student discovers that the conclusion is missing, he makes

arrangements to get it to the professor. Has the student submitted “a paper” even though he

made two submissions? Most would say he has. The student has submitted multiple written

communications, that when combined, meet the professor’s definition of “a paper” because they

provide all of the information required by professor to be included in the paper.

As these examples demonstrate, the use of the indefinite article “a” before a word that

describes written communication does not necessarily mean that delivery of the message must be

in one transmission. This principle reflects ordinary usage of the indefinite article “a” with

respect to physical objects in general. For example, “[i]f a girl should say that she wanted a

dress made from a piece of red satin, she would not signify that all the material required would

have to be in one piece. The goods might be in several lengths, each length used for a particular

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part of the dress.” Margaret M. Bryant, English in the Law Courts: The Part That Articles,

Prepositions, and Conjunctions Play in Legal Decisions 40–41 (1962) (emphasis added).

Similarly, here, written communications to a noncitizen in multiple components or

installments may collectively provide all the information necessary to constitute “a notice to

appear” under 8 U.S.C. § 1229b(d). Thus, the government triggers the stop-time rule when it

sends a noncitizen all the required categories of information under § 1229(a)(1)(A)-(G) through

one or multiple written communications.

IV.

Contrary to what Garcia-Romo argues, the Supreme Court’s decision in Pereira v.

Sessions, 138 S. Ct. 2105 (2018) does not compel a different interpretation than the ordinary

meaning applied above. The Pereira Court answered the following “narrow question”: “If the

Government serves a noncitizen with a document that is labeled ‘notice to appear,’ but the

document fails to specify either the time or place of the removal proceedings, does it trigger the

stop-time rule?” 138 S. Ct. at 2110. In that case, the noncitizen (Pereira) received a document

entitled “Notice to Appear” that met all the requirements of § 1229(a)(1) with the exception that

it failed to list the time and date when the proceedings would be held. See id. at 2113. That

document was personally served on Pereira on May 31, 2006. Id. at 2112. The immigration

court then mailed Pereira “a more specific notice setting the date and time for his initial removal

hearing for October 31, 2007, at 9:30 a.m.” Id. “But that second notice was sent to Pereira’s

street address rather than his post office box (which he had provided to DHS), so it was returned

as undeliverable.” Id. “In 2013, after Pereira had been in the country for more than 10 years,”

he was arrested for a “minor motor vehicle violation” and subsequently entered removal

proceedings. Id. The BIA and the First Circuit agreed that the stop-time rule was triggered in

2006 by the notice he received in person. See id. at 2112.

But the Supreme Court disagreed. Because the Court concluded that the 2006 document

did not trigger the stop-time rule, Pereira satisfied the ten-year continuous presence requirement

in § 1229b(b)(1). See id. at 2112. In reaching this conclusion, the Court had no occasion to

determine whether the government would be able to supplement the initial written

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communication lacking all the required disclosures of § 1229(a)(1) through a subsequent

document providing the missing information to trigger the stop-time rule because the

government never successfully served Pereira with a supplemental communication that included

the time-and-date information. Thus, the Pereira holding does not control the outcome of this

case.

Garcia-Romo nonetheless contends that “the Supreme Court made clear that the

Government may not cobble together a notice to appear through several separate documents

which serve to ‘complete’ the original, defective notice to appear.” Pet’r Br. at. 13. Pereira

does not say this. To understand why, consider the dialogue between the dissenting and majority

Supreme Court opinions in that case.

Justice Alito, writing as the sole dissenter in Pereira, concluded that “§ 1229(a)(1)’s

language can be understood to define what makes a notice to appear complete,” and “[u]nder that

interpretation a notice that omits some of the information required by § 1229(a)(1) might still be

a ‘notice to appear.’” Id. at 2126 (Alito, J., dissenting). To support his point, Justice Alito

invoke the colorful illustration involving a three-wheeled car: “In everyday life, a person who

sees an old Chevy with three wheels in a junkyard would still call it a car.” Id.

The Pereira majority rejected this interpretation. In rebuttal, the Pereira majority

explained that section 1229(a)(1) “defines a ‘notice to appear’ as a ‘written notice’ that

‘specif[ies],’ at a minimum, the time and place of the removal proceedings.” Id. at 2116

(alteration in original) (quoting 8 U.S.C. § 1229(a)(1)(G)(i)). Thus, it could not be that a

“defective notice to appear is still a ‘notice to appear’ even if it is incomplete—much like a

three-wheeled Chevy is still a car.” Id. Accordingly, the Pereira majority rejected only the

premise that “a notice to appear” can come into fruition before the government delivers all the

required information in § 1229(a)(1)(A)-(G) to the noncitizen. In other words, if a car were

defined to require four wheels, the three-wheeled Chevy only becomes a car after a fourth tire

has been installed. Nothing in Pereira majority’s reasoning suggests that the government may

not supplement the first incomplete communication with an additional communication so that the

noncitizen receives all the required information in § 1229(a)(1)(A)-(G). In the spirit of keeping

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with the three-wheeled Chevy analogy, nothing prevents the government from adding a fourth

tire so that the three-wheeled Chevy can finally be a car that is defined to have four wheels.

Thus, we are not persuaded by Garcia-Romo that Pereira compels interpreting the statute

in his favor. In fact, our holding is entirely consistent with Pereira.

V.

Also unpersuasive is the Ninth Circuit’s reasoning in Lopez v. Barr, 925 F.3d 396 (9th

Cir. 2019), which adopted the statutory interpretation advanced by Garcia-Romo. The Lopez

court held that “the statute speaks clearly: residence is terminated ‘when the alien is served a

notice to appear. The use of the singular indicates that service of a single document—not

multiple—triggers the stop-time rule.” 925 F.3d at 402 (citations omitted) (quoting 8 U.S.C.

§ 1229b(d)(1)). The Ninth Circuit reasoned that allowing the government to serve noncitizens

with multiple notices to appear would contradict the statute’s text and was inconsistent with

Pereira. See id. at 402, 403.

Regarding the text of the statute, the Lopez court emphasized the singular use of the

phrase “a notice to appear” in § 1229b(d)(1). Although the Dictionary Act, 1 U.S.C. § 1,

requires that, in determining the meaning of an Act of Congress, “words importing the singular

include and apply to several persons, parties, or things,” the Lopez court declined to apply the

Dictionary Act to the phrase “a notice to appear.” See 925 F.3d at 402. Relying on United States

v. Hayes, 555 U.S. 415, 422 n.5 (2009), the Ninth Circuit explained that the singular/plural rule

in the Dictionary Act is designed to apply “only on the rare occasions when doing so is necessary

to carry out the evident intent of the statute.” Lopez, 925 F.3d at 402 (cleaned up). The Ninth

Circuit determined that this “rare occasions” exception was inapplicable because “[a] single,

complete Notice to Appear achieves” Congressional intent to convey time-and-place information

to a noncitizen and facilitates appearance at the removal proceedings. See id. Lopez also

rejected the interpretation we have adopted because, according to the Ninth Circuit, it would

require reading the statute as stating that “the stop-time provision would be triggered ‘when the

alien is served notices to appear under section 1229(a).’” Id. at 402.

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However, the interpretation of § 1229b(d)(1) does not even hinge on the significance of

whether the phrase “a notice to appear” should be read in the singular or the plural. Therefore,

the Dictionary Act is not relevant to the statutory interpretation issue we are deciding.

As explained above, the plain and ordinary meaning of the word “a” as used in context naturally

contemplates that service of the required information can be achieved through written

communication in multiple installments. See supra, at 8–12. Our interpretation of the statute is

not that there can be “multiple notices to appear,” as the Ninth Circuit characterizes the statutory

interpretation we adopt. We agree with the Ninth Circuit that the statute calls for only one

“notice to appear.” But that proposition does not answer the question of whether the requisite

informational components of “a notice to appear” may be provided through multiple written

communications. The Lopez court did not consider this particular question; therefore, we find its

analysis of the statute to be incomplete.

Further, the Ninth Circuit misreads Pereira. The Lopez court suggests that Pereira

established a binary inquiry for determining whether a document is “a notice to appear”: either

the document contains all the required information under § 1229(a)(1)(A)-(G) (rendering it a true

“notice to appear’) or it does not (rendering it a “putative notice to appear”). See 925 F.3d at

402, 403 (“Nevertheless, no matter how many documents are sent, none qualifies as a ‘notice to

appear’ unless it contains the information Section 1229(a) prescribes.”). To support its reading

of Pereira, the Ninth Circuit noted that “the Supreme Court held that Section 1229(a)(1) defines

what a notice to appear is, and that the definition is imported every time the term ‘notice to

appear’ is used in the statute—especially when it is used in the stop-time rule, 8 U.S.C.

§ 1229b(d)(1), which refers to ‘a notice to appear under section 1229(a).’” Lopez, 925 F.3d at

403 (quoting Pereira, 138 S. Ct. at 2116). Thus, under this reading, the government lacks the

ability to supplement its first communication with a second one.

The analytical problem with this conclusion is that it rests on the assumption that a

subsequent written communication cannot “cure the defect in the initial” communication. See

Lopez, 925 at 407 (Callahan, J., dissenting). In fact, the Pereira opinion “says nothing about

whether a” deficient initial communication “can be cured by a subsequent document that fully

provides specific time, date, and place information.” Id. And thus, while we agree with the

No. 18-3857 Garcia-Romo v. Barr Page 14

Lopez court that a noncitizen receives “a notice to appear” only after she or he has received all

the required information listed under § 1229(a)(1)(A)-(G), “it does not follow that all the criteria

listed in § 1229(a) must be contained in a single document.” Id.

VI.

Lastly, our holding accords with the BIA’s interpretation of the statute set forth in its en

banc opinion in In re Mendoza-Hernandez, 27 I. & N. Dec. 520 (B.I.A. 2019) (en banc). There,

the BIA held that “where a notice to appear does not specify the time and place of an alien’s

initial removal hearing, the subsequent service of a notice of hearing containing that information

‘perfects’ the deficient notice to appear, satisfies the notice requirements of section [1229(a)(1)],

and triggers the ‘stop-time’ rule of section [1229b(d)(1)(A)].” Id. at 535. The BIA explained,

“[W]e do not read the statute as requiring that the ‘written notice’ be in a single document.

Rather it may be provided in one or more documents—in a single or multiple mailings . . . so

long as the essential information is conveyed in writing and fairly informs the alien of the time

and place of the proceedings.” Id. at 531.

When the BIA interprets the Immigration and Nationality Act, its interpretation is eligible

for Chevron deference. See Negusie v. Holder, 555 U.S. 511, 516–17 (2009). The BIA’s

entitlement to deference hinges on the result of a two-step test we must employ. See City of

Arlington v. FCC, 569 U.S. 290, 296 (2013). First, after “applying the ordinary tools of statutory

construction,” we must determine if the statute is ambiguous. Id. “If the statute is unambiguous,

then the court applies it as-written; ‘that is the end of the matter.’” Arangure v. Whitaker,

911 F.3d 333, 337–38 (6th Cir. 2018) (quoting City of Arlington, 569 U.S. at 296). But if we

were to conclude that the statute was ambiguous, then we would be required to defer to the

agency’s interpretation of the statute provided that it is a “permissible” interpretation. City of

Arlington, 596 U.S. at 296. In other words, the agency’s interpretation must be “within the

bounds of reasonable interpretation.” Id.

We have concluded that the relevant statutory text is unambiguous and that its ordinary

meaning allows for the government to provide non-citizens with the required categories of

information under § 1229(a)(1)(A)-(G) using multiple documents. Accordingly, we need not

No. 18-3857 Garcia-Romo v. Barr Page 15

defer to the BIA’s interpretation of the statute. But even if we had to defer under Chevron, that

would not change the outcome here because, as noted, the BIA agrees with our interpretation of

statute.

If we were to accept Garcia-Romo’s strict construction of § 1229b(d)(1) as a reasonable

interpretation of the statute, it would at most suggest that § 1229b(d)(1) is subject to at least two

reasonable interpretations. “When a statute ambiguously lends itself to more than one

interpretation, we may not substitute one party’s construction of the statute for a reasonable

interpretation issued by the agency charged with administering it.” Gonzalez-Garcia v. Holder,

770 F.3d 431, 434 (6th Cir. 2014), abrogated on other grounds by Pereira, 138 S. Ct. at 2114.

Accordingly, the government’s interpretation would nonetheless prevail even had we credited

Garcia-Romo’s interpretation. Under Chevron, we would defer to the BIA’s statutory

interpretation, which is the same as our own.

VII.

For the foregoing reasons, we DENY the petition for review.