Reply Brief — Wendy Carolina Miguel-Pena, et al., Petitioners v. Merrick B. Garland, Attorney General

Supreme Court briefOct 28, 2024

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No. 24-12

in tf)t Supreme Court oi tJje ^Imteb States;

Wendy Carolina Miguel-Pena and BNRM,

Petitioners,

Merrick B. Garland,

United States Attorney General

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

REPLY BRIEF FOR PETITIONERS

Adam L. Crayk

Paul W. Hughes

Marti L. Jones

Counsel of Record

Stowell Crayk

Sarah P. Hogarth

2225 South State Street

Charles Seidell

Salt Lake City, UT 84115 McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202)756-8000

phughes@mwe.com

Counsel for Petitioners

TABLE OF CONTENTS

Table of Authorities..........

Reply Brief for Petitioners

Conclusion.........................

TABLE OF AUTHORITIES

Page(s)

Cases

Ali v. Barr,

924 F.3d 983 (6th Cir. 2019)..............

Arizmendi-Medina v. Garland,

69 F.4th 1043 (9th Cir. 2023)............

Banegas Gomez v. Barr,

922 F.3d 101 (2d Cir. 2019)................

Bonhometre v. Gonzales,

414 F.3d 442 (3d Cir. 2005)................

Farah v. U.S. Att’y Gen.,

12 F.4th 1312 (11th Cir. 2021)..........

Matter of Fernandes,

28 I.&N. Dec. 605 (BIA Aug. 4, 2022)

Goncalves Pontes v. Barr,

938 F.3d 1 (1st Cir. 2019)...................

Hernandez-Chavez v. Att’y Gen.,

843 F. App’x 423 (3d Cir. 2021).........

Indrawati v. U.S. Atty. Gen.,

779 F.3d 1284 (11th Cir. 2015)..........

Karingithi v. Whitaker,

913 F.3d 1158 (9th Cir. 2019)............

Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024).........................

Martinez-Perez v. Barr,

947 F.3d 1273 (10th Cir. 2020)..........

Nkomo v. Att’y Gen.,

930 F.3d 129 (3d Cir. 2019)...............

Ortiz-Santiago v. Barr,

924 F.3d 956 (7th Cir, 2019)..............

Ill

Pereira v. Sessions,

585 U.S. 198 (2018)..............................

Santos-Santos v. Barr,

917 F.3d 486 (6th Cir. 2019)...............

Soumah v. Holder,

403 F. App’x 999 (6th Cir. 2010).......

Suate-Orellana v. Garland,

101 F.4th 624 (9th Cir. 2024).............

Umana-Escobar v. Garland,

69 F.4th 544 (9th Cir. 2023)...............

Unemployment Comp. Comm’n of

Alaska v. Aragon,

329 U.S. 143 (1946)...... .......................

Util. Air Regul. Group v. EPA,

573 U.S. 302 (2014).............................

Zara v. Ashcroft,

383 F.3d 927 (9th Cir. 2004)..............

Statutes

8 U.S.C. § 1229(a)(1).................................

Other Authorities

8C.F.R. § 1003.18(b).................................

Jonah B. Gelbach & David Marcus,

Rethinking Judicial Review of High

Volume Agency Adjudication, 96 Tex.

L. Rev. 1097 (2018).............................

2,3

REPLY BRIEF FOR PETITIONERS

The petition demonstrated that review is war

ranted to resolve the disarray among the circuit courts

on a pressing issue of administrative law—the stand

ard for assessing whether a noncitizen has properly

exhausted a legal argument before the agency in im

migration proceedings. The circuit courts are intrac

tably divided. Finding itself in the minority, the Tenth

Circuit has taken an excessively strict approach that

is inconsistent with principles of administrative ex

haustion and this Court’s precedents. It applied that

restrictive test here to hold that petitioners—who had

identified consistent deficiencies with their notice to

appear at every stage—failed to exhaust their critical

argument on appeal simply because of the labels they

attached to the government’s plain errors. And the

court did all this sua sponte, in the face of the govern

ment’s waiver. Only this Court may resolve the divi

sion of authority.

The government offers no compelling basis to re

sist review. Although it charts a wide array of ap

proaches taken by the lower courts, it is undeniable

that petitioners’ claims would certainly have been

deemed exhausted in at least some circuits—espe

cially the Ninth. The government’s disagreement on

the merits is precisely what the Court should grant

review to resolve—but, in any event, the government’s

merits position is mistaken. Finally, the government’s

vehicle contention—that petitioners might lose on the

merits—is incorrect.

Further review is warranted to resolve a question

of enormous practical importance for the tens of thou

sands of noncitizens who navigate this bureaucratic

maze each year.

1. Because petitioners’ claims would have been

found exhausted in other circuits, this case implicates

a clear circuit conflict regarding the governing stand

ard.

The conflict with the Ninth Circuit is apparent.

The Ninth Circuit’s most recent decision addressing

the issue, Suate-Orellana v. Garland, 101 F.4th 624,

629 (9th Cir. 2024), confirms as much. There, the pe

titioner “argued before the IJ that the NTA was stat

utorily deficient and that, as a result, the IJ lacked

jurisdiction;” that argument “exhausted her claim

that her NTA was statutorily deficient” for claims-processing purposes as well. The court explained that, by

presenting the need for dismissal as a consequence of

the statutory deficiency before the IJ and the BIA, the

petitioner gave the agency “an adequate opportunity

to pass on the issue.” Id. (quoting Arizmendi-Medina

v. Garland, 69 F.4th 1043, 1051 (9th Cir. 2023)).

The briefing in this case is a near identical match

to the Ninth Circuit’s description in Suate-Orellana.

Before the IJ, petitioners identified the statutory and

regulatory requirements and argued that “the docu

ments filed with this Court as the charging documents

in the instant matter * * * do not comply with the stat

utory mandate found in 8 U.S.C. § 1229(a)(1).” C.A.

A.R. 787. They further argued that, because the pro

ceedings were not “properly initiated,” “jurisdiction

does not adhere.” C.A. A.R. 791. And before the BIA,

Petitioners maintained that the NTAs were missing

“the time and date of the hearing,” which are “statu

tory and regulatory requirements that the IJ ignored

when he denied the Motion to Terminate.” C.A. A.R.

019-020. They then argued that remand or dismissal

were required because “these missing elements are

fundamental to constitutional due process.” C.A. A.R.

020. Just as in Suate-Orellana, petitioners “clearly ar

gued” that their NTAs were “not a notice to appear”

under the statute and regulations. 101 F.4th at 630.

The Ninth Circuit, accordingly, would hold that peti

tioners here “exhausted [their] argument” that their

NTAs were “statutorily deficient.” Ibid.

In arguing to the contrary, the government (at 17)

asserts that petitioners here made an argument that

“sounded exclusively in jurisdiction.” But that is not

accurate, so far as the Ninth Circuit is concerned. As

the record reflects, petitioners argued that the NTA in

their case failed to satisfy statutory and regulatory

standards and thus dismissal was necessary—pre

cisely what was deemed sufficient to constitute ex

haustion in Suate-Orellana.

The earlier-decided Umana-Escobar v. Garland,

69 F.4th 544 (9th Cir. 2023), on which the government

relies, is not to the contrary. There, the argument be

fore the BIA “sounded exclusively in jurisdiction” be

cause the petitioner had not raised the NTA deficien

cies before the IJ—and so had forfeited any nonjurisdictional components of his argument. Id. at 550. That

is quite unlike the circumstances here, where peti

tioners have consistently identified the issues with

their NTAs and thus do not need to rely only on the

jurisdictional aspects of their arguments for issue

preservation.

This case would be governed by Suate-Orellana—

and petitioners’ claims would proceed to the merits.

The government next notes that the Third and

Eleventh Circuits have rejected arguments along the

lines of Petitioners’ below. BIO 16-18 (citing Farah v.

U.S. Att’y Gen., 12 F.4th 1312 (11th Cir. 2021) and

Hernandez-Chavez v. Att’y Gen., 843 F. App’x 423 (3d

Cir. 2021)). Hernandez-Chavez is, of course, un

published—and the government has not identified

any precedential case consistent with the Third Cir

cuit’s “liberal” exhaustion policy. 843 F. App’x at 425.1

As for the Eleventh Circuit, the government cannot

disregard that the governing standard there—unlike

the Tenth Circuit—“does not require a petitioner to

‘use precise legal terminology.’” Indrawati v. U.S.

Atty. Gen., 779 F.3d 1284, 1297 (11th Cir. 2015).

The disarray in the lower courts over the govern

ing standard is producing divergent results.

2. The conflict among the circuits is reason enough

to grant review: Regardless whether the court below

erred as to the exhaustion standard, administration of

the Nation’s immigration laws demands nationwide

uniformity, so noncitizens are not ensnared by bu

reaucratic labyrinths. But review is especially war

ranted because the decision below is deeply flawed—

and the government cannot rehabilitate it.

To start with, the government cannot deny that

issue exhaustion in the immigration context is judi

cially imposed; it is not a creature of statute. See Pet.

15-17. This has meaningful implications, in that judi

cially-adopted exhaustion requirements are far less

strict than their statutory counterparts. As the gov

ernment maintains, the functional test focuses on

whether a petitioner has presented the agency with

“an opportunity to consider” and “rul[e]” on their

1 Hernandez-Chavez also predates this Court’s decision in Santos-Zacaria and relies on the Third Circuit’s now-reversed prec

edent holding that “exhaustion before the BIA . * * * is a jurisdictional prerequisite.” Id. at 426 n.6.

claim. Unemployment Comp. Comm’n of Alaska v.

Aragon, 329 U.S. 143, 155 (1946).

Effectuating this judicial interest does not rest on

identicality of argument below. Rather, the question

turns on whether the agency had awareness of the is

sue that animates to petitioner’s claim. Here, there is

no question that the BIA had precise awareness of the

issue—the defective NTAs. Thus, the agency was pro

vided “the opportunity to resolve a controversy or cor

rect its own errors before judicial intervention.” Zara

v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004), abro

gated on other grounds by Santos-Zacaria v. Garland,

143 S. Ct. 1103 (2023); see Bonhometre v. Gonzales,

414 F.3d 442, 447 (3d Cir. 2005) (drawing this stand

ard from Zara).

No statute, precedent, or other authority sug

gests, by contrast, the rigidity of the lower court’s de

cision—that a noncitizen “must present the same spe

cific legal theory to the BIA before he or she may ad

vance it in court.” Pet. App. 11a. The best the govern

ment can do (at 13) is attempt to ground it in the hoary

principle that a “reviewing court” should not “usurp []

the agency’s function.” Aragon, 329 U.S. at 155. But

when a petitioner argues to an agency that the NTA

defects warrant relief—and then argues before a court

that those same NTA defects warrant relief—there is

surely no usurpation of the agency’s function. Here,

the agency had every opportunity to grant relief on

this issue—it simply failed to (in violation of its own

precedent), which is why appellate review is so criti

cal. See Matter of Fernandes, 28 I.&N. Dec. 605 (BIA

Aug. 4, 2022).

3. The government last claims (at 18-20) that this

case presents a poor vehicle because petitioners might

lose on the merits of their challenge to the adequacy

of the NTAs. The government relies on the BIA’s reg

ulations, which reduce the statutory requirements for

NTAs to an option the agency must follow “where

practicable.” BIO at 18 (quoting 8 C.F.R. § 1003.18(b)).

But the government fails to engage with petitioners’

straightforward, statutory textual argument: “written

notice * * * shall be given” containing enumerated de

tails, including “[t]he time and place at which the pro

ceedings will be held.” 8 U.S.C. § 1229(a)(1),

(a)(l)(G)(i) (emphasis added). The BIA cannot reduce

this unambiguous statutory requirement to a mere

precatory recommendation that must be followed only

at the agency’s convenience. Util. Air Regul. Group v.

EPA, 573 U.S. 302, 325 (2014) (“An agency has no

power to ‘tailor’ legislation to bureaucratic policy goals

by rewriting unambiguous statutory terms.”).

Rather than wrestle with the clear statutory text,

the government identifies (at 19) that certain circuit

courts have rejected the argument that deficiencies in

the NTA require dismissals in an immigration case.

But many of the government’s cases upheld BIA’s

NTA regulations under a deferential standard of re

view no longer valid after this Court’s decision in

Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244

(2024). See, e.g., Santos-Santos v. Barr, 917 F.3d 486,

491 (6th Cir. 2019) (“We * * * ‘accord a great deal of

deference to the Attorney General’s and the [Board]’s

permissible constructions of the statute which they

administer.”) (alteration in original) (quoting Soumah

v. Holder, 403 F. App’x 999, 1001 (6th Cir. 2010));

Goncalves Pontes v. Barr, 938 F.3d 1, 3 (1st Cir. 2019).

Tellingly, none of the government’s cases postdates

Loper Bright.

Moreover, several of the government’s cases re

jected only the notion that a defective NTA deprives

the IJ ofjurisdiction—which says little about whether

dismissal is required when admitted deficiencies are

timely raised. See, e.g., Ali v. Barr, 924 F.3d 983, 986

(6th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158,

1161 (9th Cir. 2019); Nkomo v. Att’y Gen., 930 F.3d

129, 135 (3d Cir. 2019); Banegas Gomez v. Barr, 922

F.3d 101, 110-111 (2d Cir. 2019).

Regardless, the government cannot deny that the

Seventh Circuit has reach the precise opposite result.

Ortiz-Santiago v. Barr, 924 F.3d 956, 961-962 (7th

Cir, 2019). And the Tenth Circuit has cited Ortiz-San

tiago favorably, noting that “[a] failure to comply with

the statute dictating the content of a Notice to Ap

pear” “may be grounds for a dismissal of the case.”

Martinez-Perez v. Barr, 947 F.3d 1273,1279 (10th Cir.

2020). That makes sense: Just a few years ago, this

Court explained that “omission of time-and-place in

formation is not * * * some trivial, ministerial defect.”

Pereira v. Sessions, 585 U.S. 198, 214 (2018). Rather,

failing to “specify integral information like the time

and place of removal proceedings unquestionably

would ‘deprive [the notice to appear] of its essential

character.’” Ibid, (alteration in original).

The government has thus—at most—demon

strated that there is a circuit split on the question un

derlying the question presented. Although the Tenth

Circuit has not yet addressed that question, MartinezPerez, if anything, suggests that the court would view

petitioners’ claim favorably. This is certainly the sort

of substantial question that warrants resolution on

the merits. The government is thus flatly wrong in

claiming that the nature of petitioners’ arguments is

a vehicle defect with respect to the question pre

sented.

Further review is warranted: Petitioners’ claims

would have been deemed exhausted by other circuits;

the decision to the contrary below is wrong; and the

underlying merits of petitioners’ substantive claims

are substantial. And that is especially so given the

gravity of this issue. Thousands of administrative

agency decisions from the BIA are appealed to Article

III courts each year. Jonah B. Gelbach & David Mar

cus, Rethinking Judicial Review of High Volume

Agency Adjudication, 96 Tex. L. Rev. 1097, 1105

(2018). These cases often involve claims where a

noncitizen fears persecution or death if wrongfully re

turned to their home country. In these circumstances,

ensuring that courts apply a consistent, nationwide

standard for exhaustion of legal issues is essential—

as noncitizens are often un- or under-represented, and

thus clear procedural rules to navigate the bureau

cratic agencies are imperative.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.