LAPARRA

Cite as 28 I&N Dec. 425 (BIA 2022) Interim Decision #4034

Matter of Sergio Rodolfo LAPARRA-DeLeon, Respondent

Decided January 18, 2022

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A respondent receives sufficient written notice to support the entry of an in absentia order

of removal, even if he or she was served with a noncompliant notice to appear that did not

specify the time or place of the hearing, where the respondent was properly served with a

statutorily compliant notice of hearing specifying this information. Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021), distinguished. Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA

2019), and Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019), reaffirmed.

FOR RESPONDENT: Lidia M. Sanchez, Esquire, Providence, Rhode Island

FOR THE DEPARTMENT OF HOMELAND SECURITY: Meggan G. Johnson,

Associate Legal Advisor

BEFORE: Board Panel: GREER and O’CONNOR, Appellate Immigration Judges;

DE CARDONA, Temporary Appellate Immigration Judge.

GREER, Appellate Immigration Judge:

On July 19, 2021, the respondent filed a motion with this Board to reopen

and terminate his removal proceedings, or alternatively to reopen and rescind

the in absentia removal order entered against him on April 12, 2010, based

on the United States Supreme Court’s decisions in Pereira v. Sessions, 138

S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). We

conclude that these decisions do not alter the validity of the in absentia

removal order entered against the respondent. Although he was served with

a notice to appear that did not specify the time or place of the hearing at

which he was ordered removed in absentia, he was later served with a notice

of hearing that complied with the statute and specified this information as

well as the consequences of failing to appear for his hearing. These

documents vested the Immigration Judge with jurisdiction over his

proceedings, supplied the respondent with sufficient notice of the time and

place of his hearing, and informed him he could be ordered removed in

absentia if he failed to appear. Accordingly, his motion will be denied.

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I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guatemala who entered the

United States without inspection at an unknown place and date. The

Department of Homeland Security (“DHS”) personally served him with

a notice to appear on July 15, 2008, ordering him to appear for a hearing

before an Immigration Judge in Boston, Massachusetts, at a date and time to

be set. On March 19, 2010, the Immigration Court sent a notice of hearing

to the respondent at the address he provided, notifying him that his initial

hearing was scheduled to take place before the Boston Immigration Court on

April 8, 2010, at 1:30 p.m. and of the consequences of failing to attend this

hearing. When the respondent did not appear at that hearing, the Immigration

Judge ordered him removed in absentia.

Citing Pereira v. Sessions, the respondent moved to reopen and terminate

his proceedings, arguing that the Immigration Judge had no jurisdiction over

the proceedings because he was served with a notice to appear that did not

list the date and time of the removal hearing. The Immigration Judge denied

the respondent’s motion based on the Board’s decision in Matter of

Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018). In that case, we distinguished

Pereira and held that a notice to appear that does not specify the time or place

of a noncitizen’s initial removal hearing vests an Immigration Judge with

jurisdiction over the removal proceedings and meets the requirements of

section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)

(2018), so long as a notice of hearing specifying this information is later

served on the noncitizen. The respondent appealed from the Immigration

Judge’s denial of his motion, and we dismissed the respondent’s appeal from

the Immigration Judge’s decision.

In his current motion to terminate, the respondent relies on the Supreme

Court’s decision in Niz-Chavez v. Garland to again argue that his notice to

appear failed to vest the Immigration Judge with jurisdiction. He

additionally argues that his in absentia removal order must be rescinded

because he was not served with “written notice” of his hearing, as required

by section 240(b)(5)(A) of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2018). 1

II. LEGAL BACKGROUND

The noncitizen in Pereira v. Sessions was issued a notice to appear in

2006 that did not specify the date and time for his initial hearing, and a notice

of hearing containing this information was sent to the wrong address in 2007.

The noncitizen did not appear and was ordered removed in absentia. In 2013,

1

To resolve any issue regarding the timeliness of the respondent’s motion, we will

address his arguments on our own motion. 8 C.F.R. §1003.2(a) (2021).

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the in absentia removal order was rescinded and proceedings were reopened

because the noncitizen did not receive the notice of hearing. In reopened

proceedings, the Immigration Judge relied on Matter of Camarillo, 25 I&N

Dec. 644 (BIA 2011), abrogated by Pereira, 138 S. Ct. at 2114, to conclude

that service of the notice to appear had triggered the so-called “stop-time”

rule under section 240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A)

(2018). The “stop-time” rule provides that service of “a notice to appear

under section 239(a)” ends a noncitizen’s accrual of continuous residence

and physical presence in the United States for purposes of cancellation of

removal. Section 240A(d)(1)(A) of the Act. In Matter of Camarillo, we held

that the service of a notice to appear triggers the “stop-time” rule, even if the

notice to appear does not include the date and time of the initial hearing.

Because the noncitizen in Pereira had not accrued the requisite period of

continuous presence following service of the notice to appear, the

Immigration Judge denied his application for cancellation of removal. We

dismissed the noncitizen’s appeal.

The Supreme Court’s decision in Pereira abrogated Matter of Camarillo,

holding that a noncompliant notice to appear which does not specify the time

or place of the initial removal hearing is not “a notice to appear under section

239(a)” and cannot trigger the “stop-time” rule. The Court left open whether

a statutorily compliant notice of hearing could cure a noncompliant notice to

appear by separately providing the required time and place information and

trigger the “stop-time” rule.

Following Pereira, this Board issued Matter of Bermudez-Cota,

addressing the threshold issue of whether jurisdiction vested with the

Immigration Court based on a noncompliant notice to appear that does not

specify the time or place of the initial hearing. As noted, we distinguished

Pereira in Matter of Bermudez-Cota, noting that the “dispositive question”

before the Court in Pereira “was whether a notice to appear that does not

specify the time and place at which proceedings will be held . . . triggers the

‘stop-time’ rule for purposes of cancellation of removal.” 27 I&N Dec.

at 443 (citation omitted). We held that a noncompliant notice to appear

vested an Immigration Court with jurisdiction over a case, and thus Pereira

did not require termination, so long as a noncitizen was later served with

a notice of hearing that complies with the requirements of section 239(a)(2)

and specifies the time and place of the removal hearing.

Most circuits have agreed with our holding in Matter of Bermudez-Cota,

although some have treated the regulations governing the docketing of a case

before an Immigration Judge through the filing of a notice to appear as

a claim-processing rule. See Matter of Arambula-Bravo, 28 I&N Dec. 388,

391–92 & n.3 (BIA 2021) (collecting cases). The Board clarified these

divergent views in Matter of Rosales Vargas and Rosales Rosales, 27 I&N

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Dec. 745, 753 (BIA 2020), recognizing that certain rules under the

regulations for initiating proceedings are “internal docketing or

claim-processing rule[s]” that do not “serve to limit subject matter

jurisdiction” of the Immigration Courts.

In the in absentia context, the Board held in Matter of Pena-Mejia,

27 I&N Dec. 546, 548 (BIA 2019), that an Immigration Judge may enter an

in absentia order of removal “if a written notice containing the time and place

of the hearing was provided either in a notice to appear under section

239(a)(1), or in a subsequent notice [of hearing specifying] the time and

place of the hearing pursuant to section 239(a)(2).” Accord Matter of

Miranda-Cordiero, 27 I&N Dec. 551, 553 (BIA 2019). In reaching this

holding, the Board relied on the disjunctive wording of section 240(b)(5)(A),

decisions from the jurisdictional context, like Matter of Bermudez-Cota, and

the relevant regulations, which do not require a notice to appear to include

time and place information to vest jurisdiction with an Immigration Court.

In a companion case, Matter of Miranda-Cordiero, we interpreted section

240(b)(5)(B) and held that rescinding an in absentia removal order was not

required if a noncitizen failed to provide an address where a notice of hearing

could be sent pursuant to section 239(a)(1)(F) of the Act, regardless of

whether the notice to appear specified the time and place of the hearing. In

both Matter of Pena-Mejia and Matter of Miranda-Cordiero, we viewed the

jurisdictional issue and when it is appropriate to enter an in absentia removal

order as distinct from the “stop-time” rule issue considered in Pereira,

because the latter is tethered to “specific language in the ‘stop-time’

provisions of section 240A(d)(1) of the Act, while the [former are] governed

by the rules regarding failure to appear in section 240(b)(5)(A), as well as

the regulations applicable to that statute.” Matter of Pena-Mejia, 27 I&N

Dec. at 550; see also Matter of Miranda-Cordiero, 27 I&N Dec. at 553.

To answer the question left open in Pereira, namely, whether a compliant

notice of hearing could cure a noncompliant notice to appear by separately

providing time and place information and trigger the “stop-time” rule, the

Board issued Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N

Dec. 520 (BIA 2019), overruled in part by Matter of M-F-O-, 28 I&N Dec.

408, 416 n.13 (BIA 2021). In that case, we answered this question in the

affirmative, holding that “where a notice to appear does not specify the time

or place of an . . . initial removal hearing, . . . service of a notice of hearing

containing that information perfects the deficient notice to appear . . . and

ends the . . . period of continuous residence or physical presence” pursuant

to the “stop-time” rule. Id. at 529. 2 Our holding in Matter of

2

We likewise held that service of a noncompliant notice to appear ends the accrual of

physical presence for purposes of voluntary departure so long as a noncitizen is later served

with a notice of hearing in Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223,

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Mendoza-Hernandez and Capula-Cortes generated a circuit split, 3 which the

Supreme Court resolved in Niz-Chavez, 141 S. Ct. at 1479–80.

In that case, the Court held that a notice to appear must be a single

document containing all the information specified in section 239(a)(1) of the

Act—including the time and place of the noncitizen’s removal hearing—

before it will trigger the “stop-time” rule, even if the noncitizen is later served

with a notice of hearing specifying this time and place information. After

Niz-Chavez, the Board revisited whether a noncompliant notice to appear

vests an Immigration Court with jurisdiction. See Matter of

Arambula-Bravo, 28 I&N Dec. at 391–92. Consistent with every circuit

court of appeals that has considered the question, 4 we held that Niz-Chavez

does not alter our prior conclusions in Matter of Bermudez-Cota and Matter

of Rosales Vargas and Rosales Rosales that a noncompliant notice to appear

vests jurisdiction with an Immigration Judge so long as a respondent is later

served with a notice of hearing specifying the time and place of the hearing,

and we followed our holdings in those decisions.

226 (BIA 2021). However, we later overruled that holding to the extent it was inconsistent

with Niz-Chavez and adopted the holding from the governing circuit. See Matter of

M-F-O-, 28 I&N Dec. at 416–17 (overruling Matter of Viera-Garcia and Ordonez-Viera

and applying nationwide the standard announced in Posos-Sanchez v. Garland, 3 F.4th

1176 (9th Cir. 2021)).

3

Compare Yanez-Pena v. Barr, 952 F.3d 239, 246 (5th Cir. 2020) (deferring to our

holding in Mendoza-Hernandez and Capula-Cortes), vacated, 141 S. Ct. 2589 (2021)

(vacating and remanding based on Niz-Chavez), and Garcia-Romo v. Barr, 940 F.3d 192,

196–97 (6th Cir. 2019) (concluding that the statute is unambiguous and agreeing with our

holding), vacated, 141 S. Ct. 2590 (2021) (vacating and remanding in light of Niz-Chavez),

with Banuelos v. Barr, 953 F.3d 1176, 1178 (10th Cir. 2020) (concluding that the

“stop-time” rule requires a single, complete notice to appear, not a “combination of

documents”), Guadalupe v. Att’y Gen. U.S., 951 F.3d 161, 164–66 (3d Cir. 2020) (same),

and Lopez v. Barr, 925 F.3d 396, 399–400 (9th Cir. 2019) (same), remanded, 998 F.3d 851

(9th Cir. 2021) (en banc) (remanding based on Niz-Chavez).

4

See Chavez-Chilel v. Att’y Gen. U.S., 20 F.4th 138, 142–44 & n.7 (3d Cir. 2021); United

States v. Castillo-Martinez, 16 F.4th 906, 913–14 & n.3 (1st Cir. 2021); Chery v. Garland,

16 F.4th 980, 986–87 (2d Cir. 2021); Ramos Rafael v. Garland, 15 F.4th 797, 800–01 (6th

Cir. 2021); Tino v. Garland, 13 F.4th 708, 709 n.2 (8th Cir. 2021) (per curiam); United

States v. Bastide-Hernandez, 3 F.4th 1193, 1196 (9th Cir.) (agreeing that a noncompliant

notice to appear could vest jurisdiction), vacated and reh’g en banc granted, 20 F.4th 1230

(9th Cir. 2021); Maniar v. Garland, 988 F.3d 235, 242 & n.2 (5th Cir. 2021); cf. De La

Rosa v. Garland, 2 F.4th 685, 687–88 (7th Cir. 2021) (citing Niz-Chavez in support of its

holding that a noncompliant notice to appear violates a claim-processing rule, not

a jurisdictional requirement).

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III. ANALYSIS

A. Termination

After the respondent was served with a noncompliant notice to appear, he

was served with a compliant notice of hearing specifying the time and place

of his hearing. Accordingly, our recent precedential decision in Matter of

Arambula-Bravo, 28 I&N Dec. at 390–92, forecloses the respondent’s

argument that his proceedings should be terminated for lack of jurisdiction.

The Immigration Judge therefore had jurisdiction over these removal

proceedings, and neither Pereira nor Niz-Chavez require termination. Id.

at 391; see also United States v. Castillo-Martinez, 16 F.4th 906, 913–14

& n.3 (1st Cir. 2021). We will therefore deny the respondent’s motion to

terminate.

B. In Absentia Removal Order

The only remaining issue is whether we should rescind the Immigration

Judge’s in absentia order of removal because the respondent did not receive

sufficient notice of his removal hearing. Section 240(b)(5)(A) of the Act

provides that a respondent “shall be ordered removed in absentia” if a

respondent has been provided with “written notice required under paragraph

(1) or (2) of section 239(a)” of the Act. In turn, section 240(b)(5)(C)(ii)

provides, in relevant part, that an in absentia order of removal “may be

rescinded” if a respondent “did not receive notice in accordance with

paragraph (1) or (2) of section 239(a).” 5 As noted, we held that in light of

the statute’s use of the disjunctive term “or,” an in absentia order of removal

may be entered and need not be rescinded if “a written notice containing the

time and place of the hearing was provided either in a notice to appear under

section 239(a)(1) or in a subsequent notice of the time and place of the

hearing pursuant to section 239(a)(2).” Matter of Pena-Mejia, 27 I&N Dec.

at 548; accord Matter of Miranda-Cordiero, 27 I&N Dec. at 553.

The respondent argues that we should withdraw from our decisions in

Matter of Pena-Mejia and Matter of Miranda-Cordiero in light of

Niz-Chavez. He contends we should rescind his in absentia removal order

because he did not receive sufficient notice under sections 240(b)(5)(A) and

(C)(ii) of the Act, even though he was served a notice of hearing specifying

the time and place of the hearing at which he was ordered removed in

5

Congress added both provisions to the Act in 1996, when it added sections 239(a)(1)

and (2) and the “stop-time” rule under section 240A(d)(1) to the Act. See Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,

Div. C, § 304(a)(3), 110 Stat. 3009-546, 3009-587.

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absentia and the consequences of failing to appear for this hearing. We

disagree and will reaffirm our holdings in Matter of Pena-Mejia and Matter

of Miranda-Cordiero.

i. Niz-Chavez

Unlike the provisions at issue in Niz-Chavez, the ordinary meaning of the

in absentia provisions at sections 240(b)(5)(A) and (C)(ii) of the Act and their

place in the overall statutory scheme reflect that rescinding the respondent’s

in absentia order of removal is not warranted. 141 S. Ct. at 1480, 1482

(stating that in resolving a “dispute over a statute’s meaning, [we] normally

seek[] to afford the law’s terms their ordinary meaning at the time Congress

adopted them” and look to the “statutory structure and history”).

In support of its holding, the Supreme Court in Niz-Chavez relied on the

fact that section 239(a)(1) of the Act defines “written notice” for purposes of

that provision as “a ‘notice to appear.’” Id. at 1480 (emphasis added)

(quoting section 239(a)(1) of the Act). The Court found it significant that

Congress used the indefinite article “‘a’ . . . outside the defined term (‘notice

to appear’) [to] modif[y] the entire definition” of “notice to appear” under

section 239(a)(1), thereby requiring “‘a’ written notice containing all the

required information” listed under that provision, including the time and

place of proceedings. Id. The Court also observed that section 240A(d)(1),

the provision that “creates the stop-time rule, . . . separately speaks of ‘a’

notice to appear.” Id. at 1481. Accordingly, the Court concluded that

Congress meant the “stop-time” rule to be triggered by “‘a’ single

document”—namely, a notice to appear specifying all of the information

required under section 239(a)(1), including the time and place of the

noncitizen’s removal hearing. Id.

In contrast to the provisions discussed in Niz-Chavez, the in absentia

provisions at issue here do not use an indefinite or definite article (“a” or

“the”) to modify the terms “written notice” and “notice” under section

239(a)(1) or (2). Rather, section 240(b)(5)(A) of the Act mandates the entry

of an in absentia order of removal in certain cases where a respondent fails

to appear “after written notice required under paragraph (1) or (2) of section

239(a) has been provided.” (Emphasis added.) 6 And section 240(b)(5)(C)(ii)

6

We note the definite article “the” appears before two subsequent references to “written

notice” in section 240(b)(5)(A), to specify that a noncitizen cannot be ordered removed

absent evidence that he or she was served with “the written notice” at the most recent

address provided. We read these latter uses of the article “the” to modify “written notice”

as referring back to the unmodified, introductory phrase “written notice,” which describes

notice provided pursuant to either a notice to appear under section 239(a)(1) or a notice of

hearing under section 239(a)(2). See Yates v. United States, 574 U.S. 528, 543 (2015)

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of the Act provides that an in absentia order may be rescinded upon a motion

filed “at any time” demonstrating that a respondent “did not receive notice in

accordance with paragraph (1) or (2) of section 239(a).” (Emphasis added.)

We conclude that unlike the “stop-time” rule at section 240A(d)(1),

sections 240(b)(5)(A) and (C)(ii) do not use the terms “written notice” or

“notice” to describe a discrete act of notice coming in the form of a single

document, namely, a notice to appear. See Niz-Chavez, 141 S. Ct. at 1481

(observing that had Congress been indifferent about whether notice should

come in a single document or multiple documents under the “stop-time” rule,

it would have omitted a definite or indefinite article before the term “notice”);

cf. Chery v. Garland, 16 F.4th 980, 987 (2d Cir. 2021) (distinguishing

Niz-Chavez in the jurisdictional context because the governing regulations

refer to written notice unmodified by an indefinite article, whereas the

“stop-time” rule requires “‘a’ singular written notice” (citation omitted)).

Instead, sections 240(b)(5)(A) and (C)(ii) respectively provide that

“written notice” or “notice” may be provided under, or in accordance with,

either “paragraph (1) or (2) of section 239(a).” (Emphasis added.)

Accordingly, an in absentia order of removal may be entered and need not be

rescinded “if a written notice containing the time and place of the hearing

was provided either in a notice to appear under section 239(a)(1) or in

a subsequent notice of the time and place of the hearing pursuant to section

239(a)(2).” Matter of Pena-Mejia, 27 I&N Dec. at 548; accord Matter of

Miranda-Cordiero, 27 I&N Dec. at 553. 7 A notice of hearing under section

239(a)(2), though similar to a notice to appear under section 239(a)(1), must

specify “the new time or place of the proceedings, and . . . the consequences

under section 240(b)(5) of failing . . . to attend such proceedings.” Section

239(a)(2)(i)–(ii) of the Act. 8

(relying “on the principle of noscitur a sociis—a word is known by the company it keeps—

to ‘avoid ascribing to one word a meaning . . . inconsistent with its accompanying words’”

(citation omitted)).

7

Although we did not specifically address section 240(b)(5)(C)(ii) in Matter of

Pena-Mejia or Matter of Miranda-Cordiero, to the extent that provision contains identical

language to section 240(b)(5)(A), we ascribe the same meaning to that language. See

Pereira, 138 S. Ct. at 2115 (“[I]t is a normal rule of statutory construction that identical

words used in different parts of the same act are intended to have the same meaning.”

(citation omitted)).

8

We do not read Niz-Chavez as precluding the service of a compliant notice of hearing

in the absence of a compliant notice to appear. Although the Court stated that a compliant

notice of hearing could not trigger the “stop-time” rule in the absence of a compliant notice

to appear, Niz-Chavez, 141 S. Ct. 1485, it did not address the specific issue before us:

whether a compliant notice of hearing could supply a respondent with sufficient “written

notice” to trigger the in absentia provisions of the Act, even in the absence of a compliant

notice to appear.

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It makes sense that “written notice” and “notice,” for purposes of sections

240(b)(5)(A) and (C)(ii), respectively, may come in the form of either

a statutorily compliant notice to appear or a compliant notice of hearing

because the statute requires both documents to inform a respondent of:

(1) the time and place of the hearing at which he or she could be ordered

removed; and (2) that the respondent could be ordered removed in absentia

if he or she fails to appear for that hearing. Compare sections

239(a)(1)(G)(i)–(ii) of the Act, with sections 239(a)(2)(A)(i)–(ii) of the Act.

Once it is shown that a respondent has received both pieces of information

and fails to appear, an Immigration Judge must, provided other requirements

have been met, 9 enter an in absentia removal order. See 8 C.F.R.

§ 1003.26(c)(2) (2021) (stating that a noncitizen shall be ordered removed in

absentia if, among other things, it is established that he or she received

“written notice of the time and place of proceedings and written notice of the

consequences of failure to appear”).

In other words, a respondent may be ordered removed in absentia if he or

she receives a statutorily compliant notice to appear under section 239(a)(1)

specifying the time and place of the hearing at which he or she may be

ordered removed and the consequences of failing to appear for that hearing.

However, once it has been shown that a respondent has been properly served

with a statutorily compliant notice of hearing under section 239(a)(2),

notifying him or her of this information, the respondent has received

sufficient “written notice” to trigger the in absentia provision at section

240(b)(5)(A), even in the absence of a statutorily compliant notice to appear.

In such a case, moreover, rescinding the in absentia order for lack of “notice”

under section 240(b)(5)(C)(ii) of the Act would not be warranted. See

8 C.F.R. § 1003.23(b)(4)(ii) (2021) (providing that an in absentia order may

be rescinded upon a showing that the respondent “did not receive notice in

accordance with sections 239(a)(1) or (2) of the Act”).

The United States Court of Appeals for the Sixth Circuit reached the same

conclusion in Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019). In that

case, even though the noncitizen had not received “written notice” under

section 239(a)(1) because his notice to appear “did not include the date and

time of the removal proceeding,” the court concluded he received sufficient

“written notice” to trigger section 240(b)(5)(A) since he was served with

a statutorily compliant notice of hearing under section 239(a)(2), which

specified this information. Id. at 492. Thus, the court found that rescinding

9

In addition to demonstrating that the respondent received “written notice” of the time

and place of his hearing and the consequences of failing to appear, the DHS must have

shown by clear and convincing evidence that he was removable as charged in the notice to

appear before he could be ordered removed in absentia. Section 240(b)(5)(A) of the Act;

8 C.F.R. § 1003.26(c)(1) (2021).

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the noncitizen’s in absentia order for lack of “notice” under section

240(b)(5)(C)(ii) of the Act was not warranted.

We therefore hold that the respondent received sufficient “written notice”

to support the entry of an in absentia order of removal under section

240(b)(5)(A), and that order need not be rescinded for lack of “notice” under

section 240(b)(5)(C)(ii) of the Act, because, even though he was served with

a noncompliant notice to appear that did not specify the time or place of his

removal hearing, he was properly served with a statutorily compliant notice

of hearing under section 239(a)(2) specifying this information. Accordingly,

we will deny his motion to reopen and rescind the in absentia removal order.

ii. Overall Statutory Context and Regulatory History

Our holding is consistent with the place of sections 240(b)(5)(A) and

(C)(ii) in the overall statutory scheme as well as the relevant regulatory

history. As noted, the “stop-time” rule denotes a discrete moment in time

when a respondent is served with notice and stops accruing continuous

presence or residence for purposes of cancellation of removal. However,

sections 239(a)(1), (2), 240(b)(5)(A), and (C)(ii) of the Act, when read

together, contemplate an ongoing process. In the normal course of

adjudicating a case, once subject matter has vested with an Immigration

Court through the service of the notice to appear—even if that notice to

appear lacks time or place information—an Immigration Judge will continue

to apprise the parties of new hearing dates by serving them with notices of

hearing under section 239(a)(2). See Matter of Arambula-Bravo, 28 I&N

Dec. at 389–92. For any given proceeding, there may be multiple hearings

necessitating the service of multiple notices of hearing under section

239(a)(2). An in absentia removal order may be entered at any time during

this ongoing process, and that order can be rescinded “at any time” if

a respondent demonstrates that he or she did not receive the latest notice

pursuant to either a compliant notice to appear under section 239(a)(1) or

a section 239(a)(2) notice of hearing. Section 240(b)(5)(C)(ii) of the Act. 10

10

By contrast, section 240(b)(7) of the Act, the provision most analogous to the ones at

issue here, does not describe an ongoing process. It instead explicitly references a single,

discrete moment in time when a noncitizen receives written and oral notice of the time and

place of their hearing and the consequences of failing to appear. That provision bars certain

noncitizens ordered removed in absentia from applying for discretionary forms of relief if

“at the time of the notice described in paragraph (1) or (2) of section 239(a), [the noncitizen]

was provided oral notice . . . of the time and place of the proceedings and of the

consequences . . . of failing . . . to attend [the] proceeding.” Section 240(b)(7) of the Act

(emphasis added); cf. Matter of Alyazji, 25 I&N Dec. 397, 405 (BIA 2011) (holding that

the phrase “the date of admission” in section 237(a)(2)(A)(i) of the Act, 8 U.S.C.

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Moreover, prior to the enactment of sections 239(a)(1), (2), 240(b)(5)(A),

and (C)(ii), the governing regulations provided that Immigration Courts were

solely responsible for scheduling cases and “providing notice of the time,

place, and date of the hearing to the government and [noncitizen].” 8 C.F.R.

§ 3.18 (1996). After these provisions were enacted, the pertinent regulation

was revised to state that in removal proceedings, the legacy Immigration and

Naturalization Service—now the DHS—was responsible for providing, in

a notice to appear, “the time, place and date of the initial removal hearing,

where practicable.” Inspection and Expedited Removal of Aliens; Detention

and Removal of Aliens; Conduct of Removal Proceedings; Asylum

Procedures, 62 Fed. Reg. 10,312, 10,332 (Mar. 6, 1997) (codified at 8 C.F.R.

§ 3.18(b) (1998)). 11 However, where the DHS does not provide this

information in the notice to appear, “the Immigration Court [is] responsible

for scheduling the initial removal hearing and providing notice to [the

parties] of the time, place, and date of the hearing.” 8 C.F.R. § 1003.18(b)

(2021). This regulation additionally provides that an Immigration Court

must provide “written notice” specifying a new or changed “time and place

of the proceeding and the consequences under section 240(b)(5) . . . of failing

to . . . to attend such proceeding.” Id. Thus, the relevant regulatory history

supports our conclusion that following the enactment of sections 239(a)(1),

(2), 240(b)(5)(A), and (C)(ii), either the DHS or the Immigration Court may

schedule the initial removal hearing and notify the respondent of the time and

place of that hearing, and the consequences of failing to appear, through

either a notice to appear under section 239(a)(1) or a notice of hearing under

section 239(a)(2) of the Act, respectively.

We also believe our reading of sections 240(b)(5)(A) and (C)(ii)

harmonizes these provisions with the case law from this Board and most

circuit courts holding that a noncompliant notice to appear vests an

Immigration Judge with jurisdiction to order a noncitizen removed. Under

this case law, a noncitizen who receives a noncompliant notice to appear, but

is later served with a compliant notice of hearing specifying the time and

place of the hearing, can be ordered removed if he appears for the hearing

specified in the hearing notice. See, e.g., Matter of Arambula-Bravo, 28 I&N

Dec. at 390–92. However, under the respondent’s reading of sections

240(b)(5)(A) and (C)(ii), that very same noncitizen would be shielded from

removal if he failed to appear. This would be the case even if the noncitizen

had previously appeared before the Immigration Judge pursuant to a prior

notice of hearing. We do not believe the respondent’s reading is consistent

§ 1227(a)(2)(A)(i) (2006), “naturally connotes a single date” (emphasis added) (citation

omitted)).

11

This regulation was later renumbered as 8 C.F.R. § 1003.18(b) (2021), which is identical

to § 3.18(b) in all material respects.

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with binding precedents from this Board and the First Circuit, in whose

jurisdiction this case arises, regarding the Immigration Court’s subject matter

jurisdiction. See id.; see also Castillo-Martinez, 16 F.4th at 913–14 & n.3.

But we believe our reading is.

Finally, we recognize that the Fifth Circuit recently issued a decision

reaching a contrary conclusion. See Rodriguez v. Garland, 15 F.4th 351,

354–56 (5th Cir. 2021). 12 In that case, the court found that a respondent did

not receive “notice” of his removal hearing within the meaning of section

240(b)(5)(C)(ii) where he received a noncompliant notice to appear but was

later served with a compliant notice of hearing. The court reasoned that

section 240(b)(5)(C)(ii) requires “notice” under “section 239(a),” which

Niz-Chavez held must be a single document in the form of a notice to appear.

However, the court based this reasoning on a recitation of section

240(b)(5)(C)(ii) that omitted the disjunctive phrase “paragraph (1) or (2)”

from the statute and relied solely on a reference to “section 239(a).” See id.

at 354–55 (stating that this provision provides that “an in absentia removal

order may be rescinded ‘upon a motion to reopen filed at any time if the alien

demonstrates that the alien did not receive notice in accordance with

[8 U.S.C. § 1229(a)]’” (alteration in original) (quoting section

240(b)(5)(C)(ii) of the Act)).

In any event, Rodriguez does not apply here because this case arises in

the First Circuit. In our view, our analysis and interpretation of sections

240(b)(5)(A) and (C)(ii) are consistent with the relevant statutory language,

including its ordinary meaning and place in the overall statutory scheme, our

prior holdings in Matter of Pena-Mejia and Matter of Miranda-Cordiero,

which we reaffirm, the governing regulations and regulatory history, and the

case law relating to subject matter jurisdiction. Accordingly, the

respondent’s motions to terminate his removal proceedings and to reopen his

proceedings and rescind the in absentia order are denied.

ORDER: The respondent’s motion to terminate is denied.

FURTHER ORDER: The respondent’s motion to reopen his

proceedings and rescind the in absentia order of removal is denied.

12

The court also recently issued Spagnol-Bastos v. Garland, 19 F.4th 802, 806–07

(5th Cir. 2021) (per curiam), in which it held, consistent with our decision in Matter of

Miranda-Cordiero, that rescinding an in absentia order is not warranted where a noncitizen

who was served with a noncompliant notice to appear failed to provide an address where

a notice of hearing could be sent pursuant to section 239(a)(1)(F) of the Act.

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