Banuelos-Galviz v. Barr ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 25, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JOSE ANGEL BANUELOS-
GALVIZ,
Petitioner,
No. 19-9517
v.
WILLIAM P. BARR, Attorney
General,
Respondent.
_________________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_____________________________
Mark Robert Barr, Denver, Colorado, for Petitioner.
William C. Minick, Attorney, Office of Immigration Litigation, U.S.
Department of Justice, Washington, D.C. (Linda S. Wernery, Assistant
Director, with him on the briefs) for Respondent.
_________________________________
Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This petition involves qualification for a remedy known as
“cancellation of removal,” which allows noncitizens to avoid removal
under certain circumstances. To qualify for cancellation of removal,
noncitizens must continuously stay or reside in the United States for a
minimum number of years. The requirement varies based on whether the
noncitizens are lawful permanent residents. If the noncitizens are lawful
permanent residents, they must have continuously resided in the United
States for at least seven years. 8 U.S.C. § 1229b(a)(2). All other
noncitizens must have continuously been present for at least ten years.
8 U.S.C. § 1229b(d)(1)(A); see Part 1, below. The period of continuous
presence terminates upon service of “a notice to appear under § 1229(a)”
according to a provision known as the “stop-time rule.” 8 U.S.C.
§ 1229b(d)(1).
This case involves the relationship between the stop-time rule and
the statutory requirements for notices to appear. Under these requirements,
a notice to appear must include the time of the removal hearing. 8 U.S.C.
§ 1229(a)(1)(G)(i); see Part 1, below. When the time is missing, the notice
to appear does not trigger the stop-time rule. Pereira v. Sessions, 138 S.
Ct. 2105, 2110 (2018).
But what if an incomplete notice to appear is followed by a notice of
hearing that supplies the previously omitted information? We conclude that
the stop-time rule is still not triggered. In our view, the stop-time rule is
triggered by one complete notice to appear rather than a combination of
documents.
2
1. Mr. Banuelos was served with a deficient notice to appear and a
subsequent notice of hearing that supplied the date and time of his
removal hearing.
Mr. Banuelos entered the United States in 2006. Roughly three years
later, Mr. Banuelos was served with a document labeled “Notice to
Appear.” By statute, a notice to appear must include the time of the
removal hearing. 8 U.S.C. § 1229(a)(1)(G)(i); see p. 2, above. But Mr.
Banuelos’s document did not tell him the date or time of the hearing, so
the immigration court later sent him a notice of hearing with this
information.
Mr. Banuelos then sought asylum, withholding of removal, and
protection under the Convention Against Torture. The immigration judge
rejected each request, and Mr. Banuelos appealed to the Board of
Immigration Appeals.
While the administrative appeal was pending, the Supreme Court
decided Pereira v. Sessions, which held that the stop-time rule is not
triggered by a notice to appear that omits the time of the removal hearing.
138 S. Ct. 2105, 2113–14 (2018). Because Mr. Banuelos’s notice to appear
lacked both the date and time, he moved for a remand so that the
immigration judge could consider his request for cancellation of removal.
To qualif y for cancellation of removal, Mr. Banuelos needed to show
continuous presence in the United States for at least ten years. 8 U.S.C.
§ 1229b(d)(1)(A); see p. 2, above. His ability to satisf y this requirement
3
turned on whether the combination of the deficient notice to appear and
notice of hearing had triggered the stop-time rule. If the stop-time rule had
been triggered, Mr. Banuelos would have had only about three years of
continuous presence. But if the stop-time rule had not been triggered, Mr.
Banuelos’s continuous presence would have exceeded the ten-year
minimum.
The Board held that the stop-time rule had been triggered because the
combination of the two documents—the incomplete notice to appear and
the notice of hearing with the previously omitted information—was the
equivalent of a complete notice to appear. Given this application of the
stop-time rule, the Board found that Mr. Banuelos’s period of continuous
presence had been too short to qualif y for cancellation of removal. So the
Board denied his motion to remand.
2. We apply the abuse-of-discretion standard to the Board’s denial
of the motion to remand.
Mr. Banuelos seeks judicial review of the denial of his motion to
remand. We review the denial of this motion for an abuse of discretion.
Neri-Garcia v. Holder, 696 F.3d 1003, 1009 (10th Cir. 2012). The Board
abuses its discretion when it makes an error of law. Qiu v. Sessions, 870
F.3d 1200, 1202 (10th Cir. 2017).
The issue here involves a pure matter of law. Guadalupe v. Attorney
Gen., ___ F.3d ___, No. 19-2239, 2020 WL 913242, at *2 (3d Cir. Feb. 26,
4
2020). Mr. Banuelos’s motion to remand hinged on his qualification for
cancellation of removal, which in turn hinged on whether the stop-time
rule had been triggered by the combination of a deficient notice to appear
and the notice of hearing. 1 We thus consider whether the Board made an
error of law by applying the stop-time rule based on a combination of the
deficient notice to appear and the notice of hearing.
3. We must decide whether to defer to the Board’s interpretation of
§ 1229.
To answer this legal question, we consider whether to give deference
to the Board’s decision. The Board decided to apply the stop-time rule
based on its interpretation of 8 U.S.C. § 1229. In the past, the Board had
interpreted § 1229 to cover the combination of an incomplete notice to
appear and a subsequent notice of hearing that contained the previously
missing information. In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529
(BIA 2019) (en banc).
We must sometimes defer to the Board’s statutory interpretation
under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). See Afamasaga v. Sessions, 884 F.3d 1286, 1289 (10th
1
The immigration judge ordered Mr. Banuelos to file applications for
relief by March 30, 2011. The government contends that as of March 30,
2011, Mr. Banuelos had continuously remained in the United States for
only 4-1/2 years. But the Board denied Mr. Banuelos’s motion based on the
stop-time rule rather than the deadline to apply for cancellation of
removal. So we need not address the effect of this deadline.
5
Cir. 2018). To determine if we should defer to the Board, we first ask
whether Congress has directly spoken on the issue. Chevron, 467 U.S. at
842–43. If Congress has not directly spoken on the issue, we consider
whether the Board’s statutory interpretation was permissible. Id. at 843–
44.
4. Congress has directly spoken on whether the combination of a
notice to appear and notice of hearing can trigger the stop-time
rule.
In our view, Congress has directly spoken on the issue through
unambiguous language in the pertinent statutes. Under this statutory
language, the stop-time rule is not triggered by the combination of a
defective notice to appear and a notice of hearing.
To determine whether Congress has directly spoken on the issue, we
use “traditional tools of statutory construction.” Chevron, 467 U.S. at 843
n.9 (1984). Using these tools, we must determine whether “Congress had
an intention on the precise question at issue.” Id.
To ascertain this intention, we start with the statutory language.
WildEarth Guardians v. U.S. Fish and Wildlife Serv., 784 F.3d 677, 684
(10th Cir. 2015). Because this case involves the relationship between the
stop-time rule (8 U.S.C. § 1229b(d)(1)(A)) and the statutory requirements
for notices to appear (8 U.S.C. § 1229(a)), we examine the statutory
language for both the stop-time rule and a notice to appear.
6
The stop-time rule provides that “continuous physical presence in the
United States shall be deemed to end . . . when the alien is served a notice
to appear under § 1229(a) of this title.” 8 U.S.C. § 1229b(d)(1)(A)
(emphasis added). This sentence contains two clauses linked to the phrase
“a notice to appear.” The first clause states that the period of continuous
presence ends “when” the noncitizen is served with “a notice to appear.”
Id. The word “when” signals an event (service of a notice to appear) that
terminates the period of continuous presence. The second clause refers to a
notice to appear “under” § 1229(a). The word “under” means “in
accordance with” or “according to” § 1229(a). Pereira v. Sessions, 138
S. Ct. 2105, 2117 (2018). Based on these two clauses, the Supreme Court
held that the stop-time rule is triggered only by the service of a notice to
appear that satisfies § 1229(a). Id. at 2113–14.
Given this holding, we consider what § 1229(a) requires. Section
1229(a) says that “written notice (in this section referred to as a ‘notice to
appear’) shall be given . . . specif ying” information that includes “[t]he
time . . . at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1).
The Supreme Court has held that this statutory language defines a notice to
appear as a document that includes the time of the removal hearing.
Pereira, 138 S. Ct. at 2116–17. So a document omitting the time of the
hearing is not considered a notice to appear. Id.
7
Mr. Banuelos was served with a document that did not specif y either
the date or time of the hearing. But the government argues that the
combination of the incomplete notice to appear and a later notice of
hearing could satisfy § 1229(a) and trigger the stop-time rule. We disagree.
The stop-time rule refers to “a notice to appear,” using the singular
article “a.” This article ordinarily refers to one item, not two. See United
States v. Hayes, 555 U.S. 415, 421 (2009) (noting that a statute had “use[d]
the word ‘element’ in the singular, suggesting “that Congress [had]
intended to describe only one required element”). We would thus naturally
read the statutory language for the stop-time rule (“a notice to appear”) to
involve a single document rather than a combination of two documents.
Given this natural reading, the stop-time rule appears to unambiguously
state that continuous presence ends only when the noncitizen is served with
a single notice to appear, not a combination of two documents.
Despite this natural reading of the statutory language, the
government argues that the stop-time rule’s use of the phrase “a notice to
appear” could refer to multiple documents. The Sixth Circuit agrees that a
notice to appear could consist of multiple documents despite the statutory
use of the singular article “a.” Garcia-Romo v. Barr, 940 F.3d 192, 201
(6th Cir. 2019). In support, the Sixth Circuit analogizes to an author who
has submitted “a book” piecemeal as it is drafted. Id. The Sixth Circuit
treats the analogy as evidence that singular articles like “a” can refer to
8
multiple parts of a single item. Id.; see also Yanez-Pena v. Barr, ___ F.3d
___, No. 19-60464, 2020 WL 960829, at *5 (5th Cir. Feb. 28, 2020)
(agreeing “with the Sixth Circuit’s reasoning in Garcia-Romo that multiple
documents may collectively provide the notice required under § 1229(a)”).
Federal law confirms that a singular article may refer to multiple
items. Dictionary Act, 1 U.S.C. § 1. But in most contexts, the singular
article “a” refers to only one item. Consider a purchaser ordering a book
from Amazon. The purchaser would surely be surprised to receive
individual chapters in the mail. Or a publisher who asked would-be authors
to submit “a manuscript” would presumably frown at seriatim submissions
of individual chapters. The article “a” can thus refer to multiple items, but
only when the context involves multiple items. Id.
To determine the statutory context, we focus on Congress’s intent.
See United States v. Hayes, 555 U.S. 415, 422 n.5 (2009) (explaining that
the Dictionary Act should only be used when it is “necessary to carry out
the evident intent of the statute”) (quoting First Nat. Bank in St. Louis v.
Missouri, 263 U.S. 640, 675 (1924)). Congress sometimes intends for a
singular term to refer to multiple items. For example, Congress might
provide for multiple clothing allowances by authorizing “a clothing
allowance.” Sursely v. Peake, 551 F.3d 1351, 1355–56 (Fed. Cir. 2009)
(interpreting the statutory term “a clothing allowance” to refer to multiple
9
clothing allowances). 2 But in other circumstances, Congress uses the
singular article “a” to refer to only one item. Given the context of the
enactment of § 1229(a), Congress intended the singular article “a” to refer
to a single document satisf ying all of the statutory requirements for a
notice to appear.
Before the enactment of § 1229(a), removal proceedings could be
initiated through an order to show cause that was silent on when the
hearing would occur, followed by a notice of hearing that supplied the date
and time. 8 U.S.C. § 1252b (1995). To simplif y removal proceedings,
Congress adopted § 1229(a), replacing the two documents with a single
notice to appear, which had to include all of the information previously
sprinkled throughout the order to show cause and the notice of hearing. 8
U.S.C. § 1229(a)(1); see Report of the Committee on the Judiciary, House
of Representatives, H.R. Rep. 104-469(I) (1996), 1996 WL 168955 at *159
(aiming to “simplify procedures for initiating removal proceedings” by
creating a “single form of notice”). Given this congressional intent to
2
The Sixth Circuit based its examples on a book: Margaret Bryant’s
English in the Law Courts: The Part that Articles, Prepositions, and
Conjunctions Play in Legal Decisions (1962). Garcia-Romo v. Barr, 940
F.3d 192, 202 (6th Cir. 2019). This book points out that some opinions
interpret laws using the singular article “a” to refer to either a single item
or multiple items. Margaret M. Bryant, English in the Law Courts: The
Part that Articles, Prepositions, and Conjunctions Play in Legal Decisions
36–41 (1962). But in the opinions treating the article “a” as a reference to
multiple items, the legislature had otherwise shown an intent to refer to
multiple items. Id.
10
replace two documents with one, we should be wary of reading the singular
“a” in § 1229 to refer to multiple documents. See Stone v. INS, 514 U.S.
386, 397 (1995) (“When Congress acts to amend a statute, we presume it
intends its amendment to have real and substantial effect.”).
Though Congress created § 1229 in order to combine two documents
into one, the government argues that two documents may still constitute a
notice to appear under the statute, relying on (1) Congress’s purpose in
adopting the stop-time rule and (2) the text of § 1229(a). We reject both
arguments.
As the government points out, Congress was concerned that
noncitizens could delay their removal proceedings in order to extend the
periods of continuous presence. See In re Cisneros-Gonzalez, 23 I & N
Dec. 668, 670 (BIA 2004); Report of the Committee on the Judiciary,
House of Representatives, H.R. Rep. 104-469(I) (1996), 1996 WL 168955
at *122. The government contends that Mr. Banuelos’s interpretation
would allow noncitizens to manipulate the removal process in order to
extend their periods of continuous presence.
But manipulation would be possible even under the government’s
interpretation. Suppose that the government issues a notice to appear
without the date and time. The notice must be served on the noncitizen, so
he or she would know that the government is intending to initiate removal
proceedings. With this knowledge, the noncitizen could try to move the
11
proceedings to another immigration court. This effort could stall the
issuance of a notice of hearing because a new immigration court would
need to set the hearing. And if the new immigration court has a backlog,
the delay could be considerable. So the purpose of the stop-time rule could
be thwarted even under the government’s interpretation. 3
The government also points to the text of § 1229(a), which requires
the government to provide noncitizens with “written notice.” 8 U.S.C.
§ 1229(a)(1). But the phrase “written notice” is immediately followed by a
parenthetical phrase: “(in this section referred to as a ‘notice to appear’).”
8 U.S.C. § 1229(a)(1). This parenthetical phrase clarifies that written
notice is to be provided in the notice to appear.
Despite the parenthetical phrase, the government contrasts the
reference to “written notice” with the language of § 1229(a)(2). As the
government points out, § 1229(a)(2) contains a singular article, requiring
“a written notice” of a change in the time of the proceedings. 8 U.S.C.
3
The government also argues that interpreting “a notice to appear” to
refer to a single document creates “a windfall for noncitizens and
unnecessarily interferes with Congress’s intent.” Lopez v. Barr, 925 F.3d
396, 410 (Callahan, J., dissenting), reh’g en banc granted, 948 F.3d 989
(9th Cir. 2020) (Thomas, C.J.). But it is not our job to interpret the statutes
based on our views about what could constitute a “windfall.” Congress
intended to base the stop-time rule on the new statutory creature, a single
notice to appear satisf ying all of the requirements of § 1229(a)(1). If
Congress’s creation resulted in a windfall, the correction must come from
Congress—not us.
12
§ 1229(a)(2)(A) (emphasis added). In contrast, the language in
§ 1229(a)(1) has no article, either singular or plural, before the phrase
“written notice.”
The government’s parsing of § 1229(a)(1) disregards the entirety of
the provision. Pereira considered the entirety of the provision—“written
notice (in this section referred to as a ‘notice to appear’)”—and defined the
term as a document that includes the time of the removal hearing. 138 S.
Ct. 2105, 2116 (2018); see p. 7, above. So the omission of an article before
“written notice” does not affect our analysis.
The government downplays the significance of the phrase “referred
to as a ‘notice to appear,’” pointing out that this phrase appears only in a
parenthetical. But we should “give effect to every word of a statute
wherever possible,” Leocal v. Ashcroft, 543 U.S. 1, 12 (2004), including
words in a parenthetical, United States v. Thomas, 939 F.3d 1121, 1126–27
(10th Cir. 2019).
According to the government, the parenthetical phrase constitutes
shorthand for all of the information that must be communicated under
§ 1229(a)(1), whether in one document or multiple documents. But the
Supreme Court rejected this interpretation in Pereira v. Sessions, holding
that the phrase “notice to appear” defines a single document that contains
all of the required information. 138 S. Ct. 2105, 2116 (2018); see also
Lopez v. Barr, 925 F.3d 396, 403 (9th Cir. 2019) (“[T]he Supreme Court
13
[in Pereira] 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.”),
reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020) (Thomas, C.J.). 4
The government argues that we should not rely on Pereira v. Sessions
because its facts differ from ours. The noncitizen in Pereira never received
a notice of hearing, so the Supreme Court did not need to decide whether a
notice of hearing could trigger the stop-time rule. 138 S. Ct. 2105, 2112
(2018).
4
The Ninth Circuit has decided to convene en banc to rehear Lopez v.
Barr. As a result, the panel opinion in Lopez cannot be cited as precedent
in the Ninth Circuit. Lopez v. Barr, 948 F.3d 989 (9th Cir. 2020) (Thomas,
C.J.); Ninth Cir. R. 35–3.
14
Though Pereira is distinguishable on its facts, 5 the Court’s reasoning
supports our interpretation of the term “a notice to appear.” 6 When
5
Given these factual differences, the government relies on pre-Pereira
opinions from other circuit courts. Three circuits (the Fifth, Eighth, and
Ninth Circuits) have held that § 1229(a)(1) is satisfied by the combination
of an incomplete notice to appear and a notice of hearing. Gomez-Palacios
v. Holder, 560 F.3d 354, 359 (5th Cir. 2009); Haider v. Gonzales, 438 F.3d
902, 907–08 (8th Cir. 2006); Popa v. Holder, 571 F.3d 890, 896 (9th Cir.
2009), overruled by Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019), reh’g en
banc granted, 948 F.3d 989 (9th Cir. 2020) (Thomas, C.J.). And three other
circuits (the Second, Third, and Seventh Circuits) have held that the
combination of documents triggered the stop-time rule. Guamanrrigra v.
Holder, 670 F.3d 404, 409–10 (2nd Cir. 2012); Orozco-Velasquez v. Att’y
Gen., 817 F.3d 78, 83–84 (3rd Cir. 2016); abrogated, Guadalupe v.
Attorney Gen., ___ F.3d ___, No. 19-2239, 2020 WL 913242, at *1, 4 (3d
Cir. Feb. 26, 2020); Dababneh v. Gonzales, 471 F.3d 806, 808–10 (7th Cir.
2006).
But these holdings arguably conflict with Pereira, which concluded
that omission of the time prevents a document from functioning as a notice
to appear under § 1229(a) and triggering the stop-time rule. Pereira v.
Sessions, 138 S. Ct. 2105, 2116 (2018). Given this conclusion, the Third
and Ninth Circuits have held that their pre-Pereira opinions have been
abrogated. Guadalupe v. Attorney Gen., ___ F.3d ___, No. 19-2239, 2020
WL 913242, at *1, 4 (3d Cir. Feb. 26, 2020) (holding that the Third
Circuit’s previous precedent, Orozco-Velasquez, had been abrogated by
Pereira); Lopez v. Barr, 925 F.3d 396, 400 (9th Cir. 2019) (stating that the
Ninth Circuit’s previous precedent, Popa, had been overruled by Pereira),
reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020) (Thomas, C.J.).
We need not address the viability of the various pre-Pereira opinions
in other circuits.
6
In Pereira, the government raised practical concerns with providing
the date and time in the notice to appear, including the difficulty of
assigning each noncitizen a date and time without consulting the
immigration court. 138 S. Ct. 2105, 2118–19 (2018). But the Supreme
Court concluded that “[t]hese practical considerations are meritless and do
not justif y departing from the statute’s clear text.” Id. at 2118; see also
15
interpreting the same term, the Pereira Court held that the stop-time rule is
not triggered by a notice to appear that omits the time because the
document is “not a ‘notice to appear under § 1229(a).’” Pereira v.
Sessions, 138 S. Ct. 2105, 2110, 2116 (2018). The Court based this holding
on its interpretation of the statutory phrase “(written notice (referred to as
a ‘notice to appear’)).” See pp. 13–14, above. This interpretation applies
equally here because Mr. Banuelos’s putative notice to appear was missing
the date and time. 7
5. Conclusion
Given the unambiguous language of the pertinent statutes, the stop-
time rule is not triggered by the combination of an incomplete notice to
Guadalupe v. Attorney Gen., ___ F.3d ___, No. 19-2239, 2020 WL 913242,
at *5 (3d Cir. Feb. 26, 2020) (stating that a requirement for “one complete”
notice to appear does not prevent the Department of Homeland Security
from waiting to send the notice to appear until after the Department has
compiled all of the information required in § 1229(a)).
7
Since Pereira was decided, two other circuit courts have held that an
incomplete notice to appear could not be perfected by a later document
stating the date and time. Guadalupe v. Attorney Gen., ___ F.3d ___, No. 19-
2239, at *2, 5 (3d Cir. Feb. 26, 2020) (holding that for purposes of the
stop-time rule, a deficient notice to appear cannot be “cure[d]” or
“supplemented” by a subsequent notice of hearing); Lopez v. Barr, 925
F.3d 396, 404 (9th Cir. 2019) (stating that substantive defects in a notice
to appear cannot be cured by a notice of hearing that does not in itself
satisf y all of the requirements of § 1229(a)(1)), reh’g en banc granted, 948
F.3d 989 (9th Cir. 2020) (Thomas, C.J.).
16
appear and a notice of hearing. We thus grant the petition for review and
remand to the Board for further proceedings.
17