J-L-L , 28 I. & N. Dec. 684 ( 2023 )

Cite as 28 I&N Dec. 684 (BIA 2023) Interim Decision #4058
Matter of J- L- L-, Applicant
Decided February 10, 2023
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474
(2021), are inapplicable to proceedings initiated by a Notice to Applicant for Admission
Detained for Hearing Before Immigration Judge (“Form I-122”) and other charging
documents issued prior to the effective date of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-
546. Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), followed.
FOR THE APPLICANT: Yee Ling Poon, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Wendy Leifer, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
HUNSUCKER; Appellate Immigration Judge; NOFERI, Temporary Appellate
Immigration Judge.
NOFERI, Temporary Appellate Immigration Judge:
This matter was last before the Board on September 13, 2004, when we
dismissed the applicant’s appeal from the Immigration Judge’s decision
ordering him removed. On October 7, 2021, the applicant filed a motion to
reopen. The Department of Homeland Security has opposed the motion. The
motion will be denied.
The applicant was placed into exclusion proceedings by a Notice to
Applicant for Admission Detained for Hearing Before Immigration Judge
(“Form I-122”) dated April 16, 1995. The Form I-122 listed the address and
date of the hearing before an Immigration Judge as “to be calendared.” The
applicant now argues that his proceedings should be reopened under Niz-
Chavez v. Garland, 141 S. Ct. 1474 (2021), and Pereira v. Sessions, 138 S.
Ct. 2105 (2018), because the Form I-122 did not include the date and time of
the initial hearing, and he should be allowed to apply for cancellation of
removal under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1). In
support of the motion, the applicant submitted a Form EOIR-42B application
for cancellation of removal and documents regarding his personal and family
circumstances. See 8 C.F.R. § 1003.2(c)(1) (requiring supporting evidentiary
material).
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The motion to reopen is untimely. 8 C.F.R. § 1003.2(c)(2). The applicant
requests sua sponte reopening based on an asserted change in law. See 8
C.F.R. § 1003.2(a). For the reasons explained further below, the Supreme
Court’s holdings in Pereira and Niz-Chavez are inapplicable to this case, and
do not change the law relevant to the applicant’s motion such that the
applicant would be eligible for the underlying relief he seeks if his
proceedings were reopened.
The applicant was placed in exclusion proceedings by the issuance of a
Form I-122, not in removal proceedings by the issuance of a notice to appear.
Until April 1, 1997, inspection at U.S. ports of entry was governed by former
section 235 of the INA, 8 U.S.C. § 1225 (1994), and exclusion proceedings
were governed by former section 236 of the INA, 8 U.S.C. § 1226 (1994).
Neither statute, nor applicable implementing regulations at the time, required
that a Form I-122 include the time and place of the initial hearing.1
Subsequent to the enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,
110 Stat. 3009-546 (enacted Sept. 30, 1996) (“IIRIRA”), removal
proceedings became the sole and exclusive procedure for determining
admissibility and removability. See IIRIRA § 304, 110 Stat. at 3009-587 to
3009-588 (codified at INA §§ 239, 240, 8 U.S.C. §§ 1229, 1229a (Supp. II
1996)); see also IIRIRA § 303, 110 Stat. at 3009-585 (deleting the exclusion
provisions of section 236 from the INA effective April 1, 1997). Pertinent
here, IIRIRA specified that removal proceedings were initiated by a “notice
to appear” and stated that a notice to appear “shall be given . . . to the alien
. . . specifying . . . [t]he time and place at which the proceedings will be held.”
INA § 239(a)(1)(G)(i), 8 U.S.C. § 1229(a)(1)(G)(i); IIRIRA § 304(a)(3), 110
Stat. at 3009-587 to 3009-588; see also Niz-Chavez, 141 S. Ct. at 1484
(“[IIRIRA] changed the name of the charging document—and it changed the
rules governing the document’s contents.”).
However, section 239(a) of the INA, 8 U.S.C. § 1229(a), governs only
notices to appear, not pre-IIRIRA charging documents. We have thus held
that Pereira does not apply to the broader category of “charging documents”
listed under 8 C.F.R. § 1003.13 (which includes pre-IIRIRA charging
1
See former INA § 235(b), 8 U.S.C. § 1225(b) (1994) (“Every alien . . . who may not
appear to the examining immigration officer at the port of arrival to be clearly and beyond
a doubt entitled to land shall be detained for further inquiry to be conducted by [an
immigration judge].”); former INA § 236(a), 8 U.S.C. § 1226 (1994) (regarding conduct
of exclusion proceedings); 8 C.F.R. § 235.6 (1995) (“If, in accordance with the provisions
of section 235(b) of the Act, the examining immigration officer detains an alien for further
inquiry before an immigration judge, he shall immediately sign and deliver to the alien a
Notice to Alien Detained for Hearing by an Immigration Judge (Form I-122).”).
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documents like a Form I-122).2 Matter of Arambula-Bravo, 28 I&N Dec.
388, 393–94 (BIA 2021). Niz-Chavez also distinguished orders to show
cause, which initiated deportation proceedings, from notices to appear by
pointing out that former section 242B(a)(2)(A) of the INA, 8 U.S.C.
§ 1252b(a)(2)(A) (1994), expressly authorized the government to specify the
place and time for a hearing “in the order to show cause or otherwise” but
“IIRIRA changed all that.” 141 S. Ct. at 1484 (emphasis in original, citation
omitted). See also Pereira, 138 S. Ct. at 2117 n.9 (acknowledging that
“orders to show cause did not necessarily include time-and-place
information”).
A Form I-122 is similarly distinguishable from a notice to appear. While
the pre-IIRIRA statutes governing exclusion proceedings lacked the express
“or otherwise” authorization of former section 242B(a)(2)(A) of the INA, 8
U.S.C. § 1252b(a)(2)(A) (1994), more importantly those statutes lacked the
affirmative time-and-place language of today’s section 239(a) of the INA, 8
U.S.C. § 1229(a). Pereira and Niz-Chavez held that that time-and-place
information must be included in the notice to appear for it to trigger the stop-
time rule. Accordingly, we hold that Pereira and Niz-Chavez are
inapplicable to proceedings initiated by a Form I-122 and other pre-IIRIRA
charging documents.
Our conclusion is consistent with the decision of the United States Court
of Appeals for the Second Circuit, the jurisdiction in which this case arises,
in Jiang v. Garland, 18 F.4th 730, 734–35 (2d Cir. 2021) (stating that the
requirement that time and place of hearing be specified in a single notice to
appear in order to trigger the stop-time rule does not apply to orders to show
cause issued prior to IIRIRA). The Second Circuit found it “dispositive” that
the respondent in that case was charged via a pre-IIRIRA document (there,
an order to show cause), while the relevant charging document in Niz-Chavez
was a post-IIRIRA notice to appear. Id. at 734. Thus, the Second Circuit
found Niz-Chavez and Pereira “not controlling.” Id. at 734. See also
generally Maradia v. Garland, 18 F.4th 458, 462–63 (5th Cir. 2021)
(providing that Pereira does not apply to a motion to reopen an in absentia
deportation order); Perez-Perez v. Wilkinson, 988 F.3d 371, 375 (7th Cir.
2021) (similar).
Because the holdings in Niz-Chavez and Pereira do not apply to the
applicant, he has not shown a change in law making him prima facie eligible
for cancellation of removal.3 We add that the applicant is also not eligible
2
The other pre-IIRIRA charging documents listed in 8 C.F.R. § 1003.13 are an order to
show cause and a Notice of Intention to Rescind and Request for Hearing by Alien.
3
The applicant also argues that the relevant time limitation on the motion to reopen
should be equitably tolled due to a change in law. Because Pereira and Niz-Chavez do not
change the law applicable to this motion, we need not consider whether principles of
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for cancellation of removal because he was placed in exclusion proceedings,
not removal proceedings. See Matter of Perez, 22 I&N Dec. 689, 691 (BIA
1999) (stating that section 240A of the INA, 8 U.S.C. § 1229b, applies to
respondents unless they are currently in deportation or exclusion
proceedings) (citing IIRIRA § 304(c)(2), 110 Stat. at 3009-597, and IIRIRA
§ 309(c)(1), 110 Stat. at 3009-625); see also Perez-Perez, 988 F.3d at 376
(noting the respondent was not eligible for cancellation of removal because
she was placed in deportation proceedings before IIRIRA). Because the
holding in Niz-Chavez only applies to the stop-time rule in the context of
cancellation of removal applications in removal proceedings, it has no
bearing on an applicant’s eligibility for forms of relief available in exclusion
or deportation proceedings. See generally Chery v. Garland, 16 F.4th 980,
987 (2d Cir. 2021) (“As with Pereira, Niz-Chavez focused only on the stop-
time rule . . . .”); Matter of Arambula-Bravo, 28 I&N Dec. at 392 (stating
that “application of Niz-Chavez is limited to the types of relief implicated by
Pereira”).
Accordingly, we will deny the applicant’s motion to reopen because the
applicant has not presented a relevant change in law, and thus we need not
further consider whether an exceptional situation exists that warrants sua
sponte reopening. See Matter of G-D-, 22 I&N Dec. 1132, 1135 (BIA 1999)
(describing when a change in law impacts an applicant’s case to an extent
warranting the “extraordinary intervention of our sua sponte authority”); see
also Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (observing that sua
sponte reopening is not intended to be used to “circumvent the regulations,
where enforcing them might result in hardship”).
ORDER: The motion is denied.
equitable tolling apply to this motion. Cf. Matter of Nchifor, 28 I&N Dec. 585, 589 (BIA
2022) (denying a timely motion to reopen because “Niz-Chavez does not represent a change
in law” applicable to that motion). Moreover, regarding the time limitation, the applicant
cites 8 C.F.R. § 1003.2(c)(1) to argue that “circumstances that have arisen subsequent to
the hearing” warrant reopening. However, the applicant has not articulated any changed
circumstances apart from his asserted change in law.
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