Dababneh, Nahar S. v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4001
NAHAR SAID DABABNEH,
Petitioner,
v.
ALBERTO GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A76-773-934
____________
ARGUED NOVEMBER, 11, 2006—DECIDED DECEMBER 19, 2006
____________
Before BAUER, POSNER, and FLAUM, Circuit Judges.
FLAUM, Circuit Judge. Nahar Said Dababneh has lived
illegally in the Chicago area since December 1, 1993. On
April 14, 2003, the Department of Homeland Security
(“DHS”) served Dababneh with a Notice to Appear
(“NTA”), which did not include the time or date of his
removal hearing. DHS served Dababneh the NTA ap-
proximately a month and a half before he accumulated
ten years of continuous presence in the United States,
which would have made him eligible for cancellation of
deportation. After DHS filed the NTA, the Immigration
Court sent Dababneh a notice specifying the time and date
of his hearing. Dababneh filed a motion to terminate
2 No. 05-4001
proceedings alleging that the NTA was defective. The
Immigration Judge (“IJ”) denied the motion. Dababneh
conceded deportability, and the IJ granted him a voluntary
departure. Dababneh appealed the decision to the Immi-
gration Board, which affirmed the IJ’s decision without
opinion. Dababneh now petitions this Court for review. For
the following reasons, we deny Dababneh’s petition.
I. BACKGROUND
Dababneh is a native and citizen of Jordan, who was
admitted to the United States on June 1, 1993 as a non-
immigrant visitor. Although he was only authorized to
remain in the country until December 1, 1993, he has lived
in the Chicago area since his entry. Dababneh is married
with two children who are U.S. citizens. In April 2003,
DHS discovered Dababneh’s presence in the country. On
April 14, 2003, a DHS agent personally served Dababneh
with an NTA. The NTA informed Dababneh that he was
removable under Immigration and Nationality Act (“INA”)
§ 237(a)(1)(B), and ordered him “to appear before an
Immigration Judge of the United States Department of
Justice at: 55 East Monroe Street Suite 900 Chicago,
Illinois US 60603 on a date to be set at a time to be set
to show why you should not be removed from the United
States based on the charge(s) set forth above.”
On May 1, 2003, DHS filed the NTA with the Immigra-
tion Court. On May 2, the Immigration Court sent
Dababneh a Notice of Hearing in Removal Proceedings
indicating that his case had been scheduled for a hearing
on May 23, 2003 at 9 AM. On May 23, because Dababneh
appeared before the IJ without counsel, the IJ rescheduled
the hearing for April 2, 2004.
The case was subsequently transferred to a second IJ,
who moved up the hearing date to January 13, 2004. On
No. 05-4001 3
that date, Dababneh appeared before the IJ with counsel,
arguing that DHS’s failure to include the date and time
of the initial hearing in the NTA rendered it defective. The
IJ requested briefing on the issue. On April 30, Dababneh
filed a motion to terminate proceedings repeating his
contention that the NTA did not specify the date and time
of his hearing. On May 5, DHS filed a response, arguing
that even if the NTA had a technical error by not specify-
ing the date and time of the hearing, Dababneh suffered no
prejudice. On May 6, the IJ denied Dababneh’s motion to
terminate on the grounds provided in the government’s
response. On May 17, Dababneh filed a motion to recon-
sider, which the IJ denied on May 19.
On August 24, 2004, Dababneh appeared before the IJ
and conceded removability, designating Jordan as his
country of removal. Dababneh informed the IJ that he
was just short of having ten years of continuous physical
presence in the United States to qualify for cancellation
of removal. Because he entered the country on June 1,
1993, he was required to be continuously present in the
United States until June 1, 2003 to qualify for cancella-
tion. DHS served Dababneh with the NTA on April 14,
2003, a month and a half before the qualifying date.
Pursuant to INA § 240(d), any period of continuous
residence or continuous physical presence in the United
States is cut off when the alien is served with an NTA
under INA § 239(a). Dababneh argued that because his
April 14, 2003 NTA did not include the date and time of
his hearing, his continuous presence should not be cut off
on that date. The IJ also found that Dababneh did not
have the necessary ten years prior to DHS’s service of the
NTA, but advised Dababneh that he could appeal from a
finding that the NTA was not defective.
On August 24, 2004, the IJ found Dababneh removable
and granted him a voluntary departure. Dababneh ap-
pealed the decision to the Immigration Board, which
4 No. 05-4001
affirmed the IJ’s decision without opinion on September
22, 2005.
II. DISCUSSION
When the BIA affirms an IJ’s decision without opinion,
the IJ’s decision becomes that of the BIA for purposes of
judicial review. Qureshi v. Gonzales, 442 F.3d 985, 987
(7th Cir. 2006). Since Dababneh’s arguments are purely
legal, this Court reviews them de novo. Sayaxing v. INS,
179 F.3d 515, 519 (7th Cir. 1999).
A. Immigration Court’s Jurisdiction
Dababneh argues that the IJ did not have jurisdiction
to initiate his removal proceedings because DHS did not
specify the date and time of his initial hearing in the
NTA.1 INA § 239(a) requires an NTA to specify, among
other pieces of information, “the nature of the proceed-
ings against the alien, the legal authority under which
the proceedings are conducted, and the time and place
at which the proceedings will be held.” 8 U.S.C. § 1229(emphasis added). Under the Immigration Court Rules
of Procedure, “[j]urisdiction vests, and proceedings before
1
The government asserts that Dababneh waived his argument
that the IJ lacked jurisdiction to find him removable. The
government cites Qureshi for the proposition that when a
petitioner expressly concedes his removability as charged in the
NTA, he waives any objection to the IJ’s finding of removability,
including the argument that the IJ lacked jurisdiction to find
him removable. This is a mis-reading of Qureshi because the
petitioner in that case failed to object to the admission of the
NTA, conceded his removability, and pleaded to the charge in
the NTA, all before claiming that the certificate of service
was defective. 442 F.3d at 990.
No. 05-4001 5
an Immigration Judge commence, when a charging
document is filed with the Immigration Court by the
Service.” 8 C.F.R. § 1003.14(a). The implementing regula-
tions also state that “[DHS] shall provide in the [NTA], the
time, place[,] and date of the initial removal hearing,
where practicable. If that information is not contained
in the [NTA], the Immigration Court shall be responsible
for scheduling the initial removal hearing and provid-
ing notice to the government and the alien of the time,
place and date of hearing.” 8 C.F.R. § 1003.18. Dababneh
argues that the statute and the regulations, read together,
vest jurisdiction with the Immigration Court when DHS
files a charging document with the court, but only when
the charging document is in accordance with INA § 239.
The fact that the government fulfilled its obligations
under INA § 239(a) in two documents—rather than one—
did not deprive the IJ of jurisdiction to initiate removal
proceedings. The Eighth Circuit’s decision in Haider v.
Gonzales, 438 F.3d 902 (8th Cir. 2005), is instructive. In
Haider, the INS served the petitioner with an NTA that
ordered the petitioner to appear before an IJ in
Bloomington, Minnesota, “on a date to be set at a time to
be set to show why the petitioner should not be removed
from the United States.” Id. at 904. The INS filed the NTA
with the Immigration Court a month later, at which time
the Immigration Court scheduled the hearing’s date and
time. The Immigration Court then mailed the petitioner
a Notice of Hearing in Removal Proceedings (NOH). The
court held that its “reading of the INA and the regulations
compel[led] the conclusion that the NTA and the NOH,
which were properly served on [the petitioner], combined
to provide the requisite notice.” Id. at 907. The court
said that “the INA simply requires than an alien be
provided written notice of his hearing; it does not require
that the NTA served on [the petitioner] satisfy all of
§ 1229(a)(1)’s notice requirements.” Id.
6 No. 05-4001
We agree with the Eighth Circuit’s interpretation of
INA § 239. DHS frequently serves NTAs where there is
no immediate access to docketing information. In those
circumstances, DHS may indicate in the NTA that it
will give the alien subsequent notice of the precise time
and place of the hearing once it files the NTA with the
appropriate immigration court. See 8 C.F.R. § 1003.18.
That is the case here. This is not a scenario in which
the government failed to include any information regard-
ing time and date, or worse, purposefully omitted that
information. Rather, DHS informed Dababneh that more
information would be forthcoming. The government filed
the NTA with the Immigration Court on May 1, 2003, and,
as required by the regulations, the Immigration Court
sent Dababneh specific information regarding the date
and time of his hearing the very next day. Together, the
NTA and the subsequent hearing notice met all of the
requirements of § 239(a)(1). Dababneh clearly received
the second notice because he appeared at the scheduled
hearing.
Dababneh argues that the government was required to
demonstrate why it was not practicable to include the
time and date of the hearing. See 8 CFR § 1003.18 (the
NTA shall provide time, date, place information, where
practicable). Assuming the government’s failure violated
the regulation, Dababneh must demonstrate that he
suffered actual prejudice as a result of the violation.
Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir.
2002). Dababneh claims that he was prejudiced because
“one may assume that had the government taken the
extra time to properly prepare and file the NTA, petitioner
may well have had the required physical presence.” This
argument fails because any prejudice on that basis is
wholly speculative. Indeed, there is no reason to believe
that it would have taken DHS a month and a half to file
and serve a proper NTA. Moreover, Dababneh’s prepara-
No. 05-4001 7
tion for his removal hearing was not prejudiced either.
The IJ continued the proceedings for 11 months until
Dababneh had counsel. Thus, Dababneh had plenty of
time to find an attorney and prepare a defense.
Consequently, the fact that the government fulfilled
its requirements under INA § 239(a) in two documents
did not strip the IJ of jurisdiction. Under 8 C.F.R.
§ 1003.14(a), the IJ had jurisdiction once DHS filed the
NTA with the Immigration Court on May 1, 2003.
B. Continuous Presence
Dababneh also argues that a defective NTA should not
cut off accrual of physical presence under INA § 240A(d).2
Section 240A(d) provides that, “[f]or purposes of this
section, any period of continuous physical presence in the
United States shall be deemed to end when the alien is
served notice to appear under section 1229(a) of this title.”
2
The government briefly argues that this Court is without
jurisdiction to hear Dababneh’s argument under INA § 242(g),
which provides that “no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising from
the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal order . . . .”
8 U.S.C. § 1252(g). The government characterizes Dababneh’s
argument as a claim that the proceedings against him should
have commenced later. This is not an accurate assessment of
Dababneh’s claims. Dababneh does not challenge the decision to
commence proceedings against him; rather, he contends that
his NTA was defective and therefore his continuous physical
presence should not have been cut off under § 240(A)(d). The
question of whether his NTA was defective is a pure question
of law, and this Court has jurisdiction to review Dababneh’s
petition. See Rosales-Pineda v. Gonzales, 452 F.3d 627, 630 (7th
Cir. 2006).
8 No. 05-4001
8 U.S.C. § 1229(b) (the stop-time rule). “The starting
point in statutory interpretation is the language of the
statute itself.” United States v. James, 478 U.S. 597, 604
(1985). The language of INA § 240A(d) is clear: if an alien
has received an NTA, the period of continuous presence
is deemed to end. Here, Dababneh received an effective
NTA that met the § 239 requirements through receipt of
both the NTA and the NOH. Accordingly, once DHS served
Dababneh with those documents, the stop-time rule cut
off his accrual of physical presence.
Dababneh argues that this Court has closely scrutinized
legislation that cuts off an alien’s ability to apply for
beneficial relief, citing Reyes-Hernandez v. INS, 89 F.3d
490 (7th Cir. 1996), and Jideonwo v. INS, 224 F.3d 692(7th Cir. 2000). In Reyes-Hernandez and Jideonwo, this
Court dealt with questions regarding the retroactivity of
§ 440(d) of the Antiterrorism and Effective Death Pen-
alty Act (AEDPA), which extinguished relief for a cer-
tain class of aliens under INA § 212(c). In both cases, the
petitioners made decisions (one pled guilty to criminal
charges opening himself up to deportation, and one
conceded deportability) relying on the availability of
relief from deportation under INA § 212(c). The Court
held that retroactively applying AEDPA § 440(d) would
not be fair in those cases. Jideonwo, 224 F.3d at 701;
Reyes-Hernandez, 89 F.3d at 493. There is no analogy
between those cases and the case before us now. Dababneh
did not make a decision in reliance on available relief
only to have that relief extinguished by subsequent
legislation. Congress passed INA § 240A(d) in 1996, and
thus there is no retroactivity challenge here.
III. CONCLUSION
For the above stated reasons, we DENY Dababneh’s
petition for review.
No. 05-4001 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-19-06