Ramirez De Ayala v. Garland ( 2022 )

Case: 20-60866 Document: 00516358254 Page: 1 Date Filed: 06/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 15, 2022
No. 20-60866 Lyle W. Cayce
Summary Calendar Clerk
Reina Elizabeth Ramirez De Ayala,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A209 962 870
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Reina Elizabeth Ramirez De Ayala, a native and citizen of El Salvador,
petitions for review of a decision by the Board of Immigration Appeals (BIA)
affirming the denial by an Immigration Judge (IJ) of her motion to reopen and
to rescind in the absentia removal order entered against her. In her petition
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-60866
for review, Ramirez De Ayala argues that she established exceptional
circumstances to justify reopening her immigration proceedings based on her
mother’s death. Further, Ramirez De Ayala argues that the IJ lacked
jurisdiction over her immigration proceedings because the notice to appear
(NTA) was defective for not including a time and date for her removal
hearing, in violation of Pereira v. Sessions, 138 S. Ct. 2105 (2018). Because
the NTA was defective, Ramirez De Ayala also contends that the in absentia
removal order was invalid.
In Pereira, the Supreme Court held that an NTA that fails to inform
an alien of when and where to appear is invalid and therefore does not trigger
the stop-time rule of 8 U.S.C. § 1229b(d), ending the period of continuous
presence in the United States for purposes of cancellation of removal. 138 S.
Ct. at 2109-10. After Pereira, we held that a perfected NTA triggers the stop-
time rule when an alien receives all required information, whether in one
document or more. Pierre-Paul v. Barr, 930 F.3d 684, 690-91 (5th Cir. 2019).
Further, we held that, even if the NTA were defective and could not be
cured, the regulation governing the NTA constitutes a claim processing rule,
rather than a jurisdictional rule. Id. at 691-93. Therefore, an invalid NTA
did not deprive an IJ of jurisdiction. See Martinez-Lopez v. Barr, 943 F.3d 766,
769-70 (5th Cir. 2019).
The Supreme Court rejected the two-step process endorsed by Pierre-
Paul, holding that an NTA is inadequate to trigger the stop-time rule unless
it contains the time and place of the proceedings. Niz-Chavez v. Garland, 141
S. Ct. 1474, 1484-86 (2021). Applying Niz-Chavez, we have held that, in the
context of in absentia removal orders, a single document containing the
statutory information is required for the alien to receive proper notice.
Rodriguez v. Garland, 15 F.4th 351, 355 (5th Cir. 2021). Niz-Chavez did not
address whether an inadequate NTA is insufficient to vest the immigration
court with jurisdiction. See Niz-Chavez, 141 S. Ct. at 1479-80, 1485. On that
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question, Pierre-Paul is distinguishable and remains good law. See Rodriguez,
15 F.4th at 355; Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir. 2021).
However, Rodriguez specifically held that an NTA that does not
specify the date and time of the hearing is defective in the context of in
absentia removal hearings. Rodriguez, 15 F.4th at 355-56. Ramirez De
Ayala’s NTA was invalid because it did not include the date and time of her
removal hearing, and the deficiency was not cured by subsequent notices. See
id.
Accordingly, Ramirez De Ayala’s petition for review is GRANTED,
the BIA’s decision is VACATED, and the case is REMANDED.
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