Isaias Lorenzo Lopez v. William Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISAIAS LORENZO LOPEZ, No. 15-72406
Petitioner,
Agency No.
v. A078-242-814
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2019
Pasadena, California
Filed May 22, 2019
Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Edward R. Korman, * District Judge.
Opinion by Judge Korman;
Dissent by Judge Callahan
*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
2 LORENZO LOPEZ V. BARR
SUMMARY **
Immigration
Granting Isaias Lorenzo Lopez’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that a Notice to Appear that is defective under Pereira v.
Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a
subsequent Notice of Hearing and therefore does not
terminate the residence period required for cancellation of
removal.
Lorenzo sought cancellation of removal, a form of relief
from removal that requires that an applicant must, among
other requirements, reside in the United States continuously
for seven years after having been admitted in any status.
However, under the “stop-time” rule, as relevant here, the
service of a Notice to Appear under 8 U.S.C. § 1229(a)
terminates an alien’s residence. In Lorenzo’s case, an
immigration judge and the BIA found him ineligible for
cancellation because his March 2008 Notice to Appear
terminated his residence period before he had accrued the
requisite seven years.
In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the
Supreme Court held that a Notice to Appear, as defined in
8 U.S.C. § 1229(a), must contain the time and place at which
removal proceedings will be held to trigger the stop-time
rule. The panel concluded that Lorenzo’s Notice to Appear
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LORENZO LOPEZ V. BARR 3
did not terminate his residence because it lacked time-and-
place information.
However, because Lorenzo also received a subsequent
Notice of Hearing that advised him of the time and place of
his proceedings, the Attorney General argued that the Notice
of Hearing cured the defective Notice to Appear and
triggered the stop-time rule. The Attorney General relied on
Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), which held
that a Notice to Appear that fails to include the date and time
of an alien’s deportation hearing, but that states that a date
and time will be set later, is not defective so long as a notice
of the hearing is later sent to the alien.
The panel held that a Notice to Appear that is defective
under Pereira cannot be cured by a subsequent Notice of
Hearing, explaining that the plain language of the statute
foreclosed the Attorney General’s argument and that Pereira
had effectively overruled Popa.
The panel noted that the BIA reached a conclusion
contrary to the panel’s holding in Matter of Mendoza-
Hernandez, 27 I. & N. Dec. 520 (BIA 2019) (en banc),
where, over a vigorous dissent, a closely divided BIA held
that a Notice of Hearing that contains time-and-place
information perfects a deficient Notice to Appear and
triggers the stop-time rule. However, the panel declined to
defer to that conclusion because: (1) the BIA acknowledged
that Pereira could be read to reach a different result, and the
courts owe no deference to agency interpretations of
Supreme Court opinions; (2) the BIA ignored the plain text
of the statute; and (3) the BIA relied on cases that cannot be
reconciled with Pereira.
Thus, the panel concluded that, because Lorenzo never
received a valid Notice to Appear, his residency continued
4 LORENZO LOPEZ V. BARR
beyond 2008 and, accordingly, he has resided in the United
States for over seven years and is eligible for cancellation of
removal.
Dissenting, Judge Callahan wrote that she does not read
Pereira as holding that the notice of the time and place must
be provided in a single document. Rather, Judge Callahan
reads Pereira as allowing the Department of Homeland
Security to cure a deficient notice to appear by subsequently
providing a noncitizen with actual notice of the time and
place of the removal proceedings, with the result that the
stop-time rule is triggered upon the noncitizen’s receipt of
the supplemental notice.
COUNSEL
Jan Joseph Bejar (argued), Law offices of Jan Joseph Bejar
P.L.C., San Diego, California, for Petitioner.
M. Jocelyn Lopez Wright (argued), Senior Litigation
Counsel; Briena Strippoli, Trial Attorney; Melissa Neiman-
Kelting, Assistant Director; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.
OPINION
KORMAN, District Judge:
Isaias Lorenzo Lopez was born in Oaxaca, Mexico in
1984. In September 1998, when he was fourteen years old,
he arrived in the United States to be with his father, a lawful
LORENZO LOPEZ V. BARR 5
permanent resident (“LPR”). Lorenzo was paroled into the
United States and, two years later, on February 12, 2002, he
became an LPR. While in the United States, Lorenzo
graduated from high school, receiving good grades while
working to support his family. After graduating, he
continued to work six days a week on a farm to support his
two U.S. citizen children and their mother.
But his record, which includes two misdemeanor
convictions for which he served a total of 10 days in jail, is
not unblemished. This case arises out of a separate incident
that occurred on March 14, 2008: Lorenzo agreed to help
Adriana Lopez Estevez enter the United States illegally by
furnishing her with a U.S. citizen’s birth certificate and
driving to Tijuana to pick her up. When they attempted to
return to the United States through the San Ysidro port of
entry, border agents discovered that Adriana was not
actually a U.S. citizen and had no documents authorizing her
entry into the country. The agents arrested Lorenzo, and he
confessed to attempting to assist Adriana to enter the United
States because he felt pity for her. Immediately following his
arrest, the Department of Homeland Security (“DHS”)
commenced removal proceedings by filing a Notice to
Appear and serving it on Lorenzo.
At his removal proceeding, Lorenzo sought cancellation
of removal under 8 U.S.C. § 1229b(a) based on his LPR
status. To be eligible for cancellation of removal, an LPR
must, among other requirements, “reside[] in the United
States continuously for 7 years after having been admitted in
any status.” 8 U.S.C. § 1229b(a)(2). The IJ concluded that
Lorenzo was admitted in February 2002 when he became an
LPR and that the March 2008 Notice to Appear terminated
his residence period. Because Lorenzo had resided in the
United States for only six years and one month, he was
6 LORENZO LOPEZ V. BARR
deemed ineligible for cancellation of removal. The Board of
Immigration Appeals (“BIA”) affirmed the IJ’s decision.
Lorenzo appealed.
While his appeal was pending, the Supreme Court
decided Pereira v. Sessions, 138 S. Ct. 2105 (2018). Pereira
held that, as defined in 8 U.S.C. § 1229(a), a Notice to
Appear must contain “[t]he time and place at which the
[removal] proceedings will be held,” and that such definition
applies wherever the term is used. Pereira, 138 S. Ct.
at 2116. Because an alien’s residence is terminated by
service of a “notice to appear under section 1229(a),”
8 U.S.C. § 1229b(d)(1), absent time and place information,
a purported Notice to Appear may not trigger the “stop-time”
provision. Id. at 2110. Because the Notice to Appear issued
to Lorenzo did not contain that information, it was defective
and did not trigger the stop-time provision. Nevertheless, in
April 2008, the Immigration Court advised Lorenzo of the
time, date, and location of his proceeding by issuing a
separate document labeled “Notice of Hearing.” In light of
Pereira, we ordered supplemental briefing on “[w]hether a
Notice of Hearing that contains the time and place at which
an alien must appear cures a Notice to Appear that is
defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018),
such that the ‘stop-time’ rule is triggered upon receipt of the
Notice of Hearing.”
STANDARD OF REVIEW
We review questions of law, such as “the interpretation
and construction of statutes,” de novo, Soltani v. W. & S. Life
Ins. Co., 258 F.3d 1038, 1041 (9th Cir. 2001), “except to the
extent that deference is owed to the BIA’s determination of
the governing statutes and regulations.” Aragon-Salazar v.
Holder, 769 F.3d 699, 703 (9th Cir. 2014). “Questions of law
that can be answered with ‘traditional tools of statutory
LORENZO LOPEZ V. BARR 7
construction’ are within the special expertise of courts, not
agencies, and are therefore answered by the court de novo.”
Ayala-Chavez v. INS, 945 F.2d 288, 294 (9th Cir. 1991)
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446
(1987)), superseded by statute on other grounds as stated in
Urbina-Mauricio v. INS, 989 F.2d 1085, 1088 n.3 (9th Cir.
1993). If “the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842–43 (1984).
DISCUSSION
Section 1229b(a) provides for “[c]ancellation of removal
for certain permanent residents” who satisfy three
prerequisites: “the alien (1) has been an alien lawfully
admitted for permanent residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years
after having been admitted in any status, and (3) has not been
convicted of any aggravated felony.” 8 U.S.C. § 1229b(a).
As to the second requirement, two events may terminate an
alien’s residence, even if he still lives in the country: service
of a Notice to Appear under Section 1229(a), or commission
of “an offense referred to in section 1182(a)(2) . . . that
renders the alien inadmissible . . . or removable.” Id.
§ 1229b(d)(1) (the “stop-time” rule); see also Nguyen v.
Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018). Only the
former is relevant here.
To trigger the stop-time rule, a Notice to Appear must
contain all items listed in Section 1229(a)(1), including the
date, time, and place of the removal proceeding. Pereira,
138 S. Ct. at 2113–14. Although “much of the information
Section 1229(a)(1) calls for does not change and is therefore
included in standardized language on the I-862 notice-to-
8 LORENZO LOPEZ V. BARR
appear form,” “time-and-place information in a notice to
appear will vary from case to case.” Id. at 2113 (quotation
marks omitted). Accordingly, Pereira focused its analysis on
the omission of that information, ultimately holding that “[a]
putative notice to appear that fails to designate the specific
time or place of the noncitizen’s removal proceedings is not
a ‘notice to appear under section 1229(a),’ and so does not
trigger the stop-time rule.” Id. at 2113–14 (quoting 8 U.S.C.
§ 1229b(d)(1)). Under Pereira, the Notice to Appear
Lorenzo received in March 2008 did not terminate his
residence. The Notice of Hearing he subsequently received
in April 2008 contained the time and place of his removal
proceeding but did not contain many of the other
requirements of a Notice to Appear. Nevertheless, relying on
our holding in Popa v. Holder, 571 F.3d 890, 896 (9th Cir.
2009), the Attorney General argues that this Notice of
Hearing cured the defective Notice to Appear and triggered
the stop-time provision.
The plain language of the statute forecloses such a result.
Popa’s holding that “a Notice to Appear that fails to include
the date and time of an alien’s deportation hearing, but that
states that a date and time will be set later, is not defective
so long as a notice of the hearing is in fact later sent to the
alien” rested on three grounds. Popa, 571 F.3d at 896. These
grounds have been “undercut” by Pereira such that “the
cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc). Thus, we reject Popa “as
having been effectively overruled.” Id.
First, Popa explained that we “silently . . . adopted the
rule that the time and date of a removal proceeding can be
sent after the first notice to appear” because we “never held
that the [Notice to Appear] cannot state that the time and
place of the proceedings will be set at a future time.”
LORENZO LOPEZ V. BARR 9
571 F.3d at 895 (emphasis added). Putting aside the
propriety of adopting rules through judicial silence, Pereira
resoundingly rejected what Popa deemed “silently adopted.”
Pereira, like Popa, involved a Notice to Appear ordering the
alien to appear at a time and date “to be set.” 138 S. Ct.
at 2112 (emphasis omitted). But the Supreme Court held that
a notice lacking specific time and date information is “not a
notice to appear.” Id. at 2118 (quotation marks omitted).
More precisely—indeed, more compellingly—the
Supreme Court held that “when the term ‘notice to appear’
is used elsewhere in the statutory section, including as the
trigger for the stop-time rule, it carries with it the substantive
time-and-place criteria required by § 1229(a).” Id. at 2116.
Unlike Popa, this holding relies on unambiguous statutory
language. Specifically, 8 U.S.C. § 1229b(d)(1) provides that
“any period of continuous residence . . . shall be deemed to
end . . . when the alien is served a notice to appear under
section 1229(a),” incorporating the definition of a Notice to
Appear found in Section 1229(a), which includes
information regarding the “time and place” of the hearing.
Id. § 1229(a). In other words, any document containing less
than the full set of requirements listed in Section 1229(a)(1)
is not a Notice to Appear within the meaning of the statute—
regardless of how it is labeled by DHS—and does not
terminate an alien’s residence. While Popa held that a Notice
to Appear that states “the time and place of the proceedings
will be set at a future time,” is “not statutorily defective,”
571 F.3d at 894–96, Pereira makes clear that it is.
Second, Popa relied on now-outmoded out-of-circuit
case law in adopting a “two-step notice procedure.” See id.
at 895–96 (citing Gomez-Palacios v. Holder, 560 F.3d 354,
359 (5th Cir. 2009); Dababneh v. Gonzales, 471 F.3d 806,
809–10 (7th Cir. 2006); Haider v. Gonzales, 438 F.3d 902,
10 LORENZO LOPEZ V. BARR
907 (8th Cir. 2006)). Each of the three decisions upon which
Popa relied were issued before Pereira, and none binds us
today. More importantly, none of these cases comports with
the unambiguous statutory text. Haider held that the law
“simply requires that an alien be provided written notice of
his hearing; it does not require that the [Notice to Appear]
served on Haider satisfy all of § 1229(a)(1)’s notice
requirements.” 438 F.3d at 907. This is flatly wrong. As
Pereira explained, the term “Notice to Appear” carries with
it all of Section 1229(a)(1)’s notice requirements wherever
it appears. Pereira, 138 S. Ct. at 2116. Dababneh, in turn,
relied on Haider and certain inapposite regulations,
discussed below, rather than the statute. 471 F.3d at 809.
And Gomez-Palacios merely concluded “that information
may be provided in a subsequent [Notice of Hearing],”
primarily relying on Haider and Dababneh. 560 F.3d at 359.
Popa likewise hung its hat on Haider’s faulty premise. See
Popa, 571 F.3d at 895–96.
Third, the final ground undergirding Popa was a
regulation—namely, 8 C.F.R. § 1003.18. That provision
requires that DHS
provide in the Notice to Appear, the time,
place and date of the initial removal hearing,
where practicable. If that information is not
contained in the Notice to Appear, the
Immigration Court shall be responsible for
scheduling the initial removal hearing and
providing notice . . . of the time, place, and
date of hearing.
8 C.F.R. § 1003.18(b) (emphasis added). We reasoned that
such a regulation is necessary “[b]ecause circumstances may
arise in which it is not feasible . . . to state the date, time, and
LORENZO LOPEZ V. BARR 11
place of a removal hearing at the time the [Notice to Appear]
is sent.” Popa, 571 F.3d at 896. Pereira rejected this
rationale, see 138 S. Ct. at 2118–19, and we have
acknowledged that “Pereira appears to discount the
relevance of 8 C.F.R. § 1003.18 in the . . . context of
eligibility for cancellation of removal.” Karingithi v.
Whitaker, 913 F.3d 1158, 1160 n.1 (9th Cir. 2019).
In any event, the regulation rewrites the statute. As an
initial matter, 8 C.F.R. § 1003.18 does not, on its face, relate
to the stop-time rule. It pertains to scheduling cases and
providing notice, implicating the stop-time rule only to the
extent it purports to alter the requirements of a Notice to
Appear. But the statute already enumerates what a Notice to
Appear must contain. Even if we agreed with DHS that it
makes sense to only issue time and place information “where
practicable,” neither we nor DHS can override the clear
statutory command that time and place information be
included in all Notices to Appear. Pereira, 138 S. Ct.
at 2118–19; see also Comm’r v. Asphalt Prods. Co.,
482 U.S. 117, 121 (1987) (per curiam) (“Judicial perception
that a particular result would be unreasonable may enter into
the construction of ambiguous provisions, but cannot justify
disregard of what Congress has plainly and intentionally
provided.”).
Moreover, the Supreme Court scrapped the notion that
“practical considerations”—namely, that DHS may not be
able to access the Immigration Court’s calendar and properly
schedule proceedings when it issues a Notice to Appear—
excuse the failure to provide “specific time, date, and place”
information. Pereira, 138 S. Ct. at 2118–19. Such
“considerations . . . do not justify departing from the
statute’s clear text.” Id. at 2118. Yet Popa did just that. We
cannot now rely on those same considerations to advance a
12 LORENZO LOPEZ V. BARR
policy other than what Congress passed and the President
signed. See Xi v. INS, 298 F.3d 832, 839 (9th Cir. 2002)
(“[A] decision to [rearrange] or rewrite the statute falls
within the legislative, not the judicial, prerogative.”). Nor
may DHS displace legislation with regulation. See League of
Wilderness Defs./Blue Mountains Biodiversity Project v.
Forsgren, 309 F.3d 1181, 1190 (9th Cir. 2002) (“An agency
simply may not interpret a regulation in a way that
contravenes a statute.”).
The Attorney General charts his course around the
statute by arguing that a Notice of Hearing may cure a
defective Notice to Appear. The phrase “notice of
hearing”—or anything resembling it—does not appear in the
law. Rather, the statute refers to a “notice to appear” and a
“notice of change in time or place of proceedings” and
delineates when each document may be issued and what it
must contain. See 8 U.S.C. § 1229(a); see also Pereira,
138 S. Ct. at 2114. Nevertheless, the Attorney General
counters that the law is silent on whether the required notice
must consist of one document or if it may consist of multiple
documents that collectively contain the necessary
information.
Far from silent, the statute speaks clearly: residence is
terminated “when the alien is served a notice to appear.”
8 U.S.C. § 1229b(d)(1) (emphasis added). The use of the
singular indicates that service of a single document—not
multiple—triggers the stop-time rule. Cf. United States v.
Hayes, 555 U.S. 415, 421 (2009) (“We note as an initial
matter that [the statute] uses the word ‘element’ in the
singular, which suggests that Congress intended to describe
only one required element.”); Delgado v. Holder, 648 F.3d
1095, 1112 (9th Cir. 2011) (Reinhardt, J., concurring) (“The
singular article ‘a’ could not make any clearer the singular
LORENZO LOPEZ V. BARR 13
nature of ‘a particularly serious crime’: the agency must
identify one offense of conviction . . . .”).
Rather than contending, as the Attorney General does,
that the statute is silent, the dissent argues that the Dictionary
Act, 1 U.S.C. § 1, requires all references to “a notice” or “the
notice” in the statute be read as referring to both the singular
and the plural, thus permitting multiple documents to
collectively satisfy the requirements of a Notice to Appear.
We reject this position for two reasons.
First, the Supreme Court has held that reliance on the
Dictionary Act’s rule regarding “words importing the
singular,” 1 U.S.C. § 1, is appropriate only “[o]n the rare
occasions when . . . doing so [is] ‘necessary to carry out the
evident intent of the statute.’” Hayes, 555 U.S. at 422 n.5
(quoting First Nat’l Bank in St. Louis v. Missouri, 263 U.S.
640, 657 (1924)). The “essential function of a notice to
appear” is to “[c]onvey[] . . . time-and-place information to
a noncitizen” and “facilitate appearance at [the]
proceedings.” Pereira, 138 S. Ct. at 2115. A single,
complete Notice to Appear achieves that aim, so resort to the
Dictionary Act’s singular/plural rule and attendant context-
driven guidance is unnecessary. Second, reading Section
1229b as the dissent does, the stop-time provision would be
triggered “when the alien is served notices to appear under
section 1229(a).” Nevertheless, no matter how many
documents are sent, none qualifies as a “notice to appear”
unless it contains the information Section 1229(a)
prescribes. See Pereira, 138 S. Ct. at 2110.
The BIA has reached a conclusion contrary to our
holding. Over a vigorous dissent, a closely divided BIA held
that “where a notice to appear does not specify the time or
place of an alien’s initial removal hearing, the subsequent
service of a notice of hearing containing that information
14 LORENZO LOPEZ V. BARR
perfects the deficient notice to appear, triggers the ‘stop-
time’ rule, and ends the alien’s period of continuous
residence or physical presence in the United States.” Matter
of Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (BIA
2019) (en banc). We do not defer to this conclusion for three
reasons.
First, the threshold issue addressed by the BIA was
whether Pereira definitively resolved whether “subsequent
service of a notice of hearing containing [time and place]
information perfects the deficient notice to appear,
trigger[ing] the ‘stop-time’ rule.” Id. The BIA acknowledged
that “Pereira can be . . . read in a literal sense to reach a
different result,” i.e., a result contrary to the BIA’s ultimate
holding. Id. Nevertheless, the BIA rejected such a “literal
reading” and now the Attorney General invites us to defer to
the BIA’s conclusion. But “a reviewing court should defer
to an administrative agency only in those areas where that
agency has particular expertise.” Ayala-Chavez, 945 F.2d at
294. “There is therefore no reason for courts—the supposed
experts in analyzing judicial decisions—to defer to agency
interpretations of the Court’s opinions.” Akins v. FEC,
101 F.3d 731, 740 (D.C. Cir. 1996) (en banc), vacated on
other grounds by FEC v. Akins, 524 U.S. 11 (1998).
Accordingly, we do not accord Chevron deference to the
BIA’s reading of Pereira.
Second, the BIA’s analysis is disingenuous. Pereira did
not merely “include[] language stating that a notice lacking
the specific time and place of the removal proceeding does
not equate to a notice to appear under [Section 1229(a)(1)].”
Mendoza-Hernandez, 27 I. & N. Dec. at 529–30. Rather, the
Supreme Court 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—
LORENZO LOPEZ V. BARR 15
especially when it is used in the stop-time rule, 8 U.S.C.
§ 1229b(d)(1), which refers to “a notice to appear under
section 1229(a).” Pereira, 138 S. Ct. at 2116. The BIA
ignored the plain text of the statute, violating a fundamental
tenet of statutory interpretation: “The inquiry ceases if the
statutory language is unambiguous and the statutory scheme
is coherent and consistent.” Barnhart v. Sigmon Coal Co.,
534 U.S. 438, 450 (2002) (quotation marks omitted). More
than that, the BIA disregarded the Supreme Court’s holding
construing the statute in accordance with its plain language.
As the dissenting opinion in Mendoza-Hernandez
explained:
The reasoning of the Supreme Court in
Pereira . . . leaves little room for doubt that
the Court’s decision requires us to follow the
plain language of the Act that the DHS must
serve a [8 U.S.C. § 1229(a)(1)] “notice to
appear” that includes the date, time, and place
of hearing in order to trigger the “stop-time”
rule. The Court in Pereira repeatedly
emphasized the “plain text” of the “stop-
time” rule and left no room for agency gap-
filling as to whether an Immigration Court
can “complete” or “cure” a putative “notice
to appear” by subsequent issuance of a
“notice of hearing” that would trigger the
“stop-time” rule on the date of that event.
Quite simply, . . . a “notice of hearing” is not
a “notice to appear” and, therefore, it does not
satisfy the requirement that the DHS serve a
[Section 1229(a)(1)] “notice to appear” that
specifies the date and time of hearing, in
order to trigger the “stop-time” rule.
16 LORENZO LOPEZ V. BARR
27 I. & N. Dec. at 540–41 (dissenting opinion) (footnote
omitted). This rationale accords with our holding above and
the plain language of the statute. The lack of ambiguity in
the statutory language provides us with yet another reason to
“not resort to Chevron deference,” Pereira, 138 S. Ct. at
2113, and to not accord any deference to the BIA’s contrary
holding, as it was unmoored from the text, see Nat’l Cable
& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 982–83 (2005). In so holding, we follow the lead of the
Supreme Court’s recent decision in BNSF Railway Co. v.
Loos, 139 S. Ct. 893, 899 (2019), which interpreted a statute
as we do here—relying on cross-references to similar terms
across provisions—without any reference to the agency’s
interpretation of the same provision.
Third, to the extent the BIA relied upon the Third
Circuit’s holding in Orozco-Velasquez v. Attorney General,
817 F.3d 78 (3d Cir. 2016), or other similar holdings such as
Popa, those cases cannot be reconciled with Pereira. The
BIA cannot rely on abrogated decisions in hopes of securing
deference from the very courts that issued the now-defunct
precedent. Such an approach would be hopelessly circular.
Moreover, the BIA presumes that because the issue of
whether a “‘perfected’ notice to appear” may stop time “was
not before the Court,” prior decisions interpreting the stop-
time rule were unaffected by Pereira. Mendoza-Hernandez,
27 I. & N. Dec. at 530. The BIA reads too much into the
Court’s judicial restraint and fails to recognize that none of
these pre-Pereira decisions “take into account the Supreme
Court’s determination that the ‘stop-time’ rule contains plain
and unambiguous language” that the “‘stop-time’ rule is
triggered by service of a . . . ‘notice to appear” that specifies
the time and place of a hearing as an essential part of the
charging document.” Id. at 541–43 (dissenting opinion).
LORENZO LOPEZ V. BARR 17
Thus, we agree with the dissenters in Mendoza-Hernandez
and accord no deference to the BIA’s flawed analysis.
Skirting the statutory text, the Attorney General points to
purportedly analogous areas of law where an initial defect
may be cured by a litigant’s subsequent acts. For instance,
Becker v. Montgomery held that an unsigned notice of appeal
is timely if signed after the time to appeal has expired.
532 U.S. 757, 760 (2001). But Pereira distinguished Becker,
explaining that “omission of time-and-place information is
not . . . some trivial, ministerial defect, akin to an unsigned
notice of appeal. Failing to specify integral information like
the time and place of removal proceedings unquestionably
would deprive the notice to appear of its essential character.”
Pereira, 138 S. Ct. at 2116–17 (citations, quotation marks,
and brackets omitted). Similarly, in Scarborough v. Principi,
the Supreme Court held that amendment of a timely
application that failed to include a necessary allegation was
permissible because the rule requiring specific allegations
was aimed, like the signature requirement in Becker, “at
stemming the urge to litigate irresponsibly.” 541 U.S. 401,
416 (2004) (quoting Edelman v. Lynchburg Coll., 535 U.S.
106, 116 (2002)). The Scarborough Court went on to explain
that “the allegation does not serve an essential notice-giving
function,” and so curative amendment was appropriate. Id.
at 416–17.
Conversely, the primary function of a Notice to Appear
is to give notice, which is essential to the removal
proceeding, Pereira, 138 S. Ct. at 2114–15, so the Attorney
General’s reliance on Becker, Scarborough, and Edelman is
misplaced. Each of those cases allowed litigants to correct
trivial or ministerial errors. The requirements of a Notice to
Appear, however, are “substantive.” Id. at 2116. Substantive
defects may not be cured by a subsequent Notice of Hearing
18 LORENZO LOPEZ V. BARR
that likewise fails to conform with the substantive
requirements of Section 1229(a)(1). As nothing precludes
DHS from issuing a Notice to Appear that conforms to the
statutory definition, that is the appropriate course of action
for the agency to follow in such situations.
DHS’s ability to issue a Notice that complies with the
statute limits the set of cases affected by our holding.
Retrospectively, although nearly all Notices to Appear
issued between 2015 and 2018 lacked time and date
information, see Pereira, 138 S. Ct. at 2111, the Attorney
General conceded at oral argument that DHS can reissue
complete Notices to Appear to those who have been served
defective ones. The cases most affected by our holding will
be those where a defective Notice to Appear issued so near
to when an alien attained the requisite years of residence that
DHS cannot reissue a complete Notice to Appear before the
statutory period elapses. Prospectively, the Supreme Court
noted that software exists that would enable DHS and the
Immigration Court to “schedule hearings before sending
notices to appear.” Pereira, 138 S. Ct. at 2119.
In a final attempt to salvage his argument, the Attorney
General suggests that Karingithi should inform our decision.
But Karingithi addressed whether a defective Notice to
Appear vests the Immigration Court with jurisdiction.
Karingithi, 913 F.3d at 1160–61. It did not address whether
a Notice of Hearing can cure a defective Notice to Appear.
Instead, we held that because a regulation properly governs
what a notice must contain to vest jurisdiction, the statutory
definition of a Notice to Appear did not control. Id. at 1161.
As we explained, “Pereira simply has no application [to the
Immigration Court’s jurisdiction]. . . . [T]he only question
[in Pereira] was whether the petitioner was eligible for
cancellation of removal.” Id. But our decision here is based
LORENZO LOPEZ V. BARR 19
on the statute’s text, not a regulation, and we are assessing
eligibility for cancellation of removal.
Finally, the dicta from the Eleventh Circuit’s
unpublished non-precedential opinion in Molina-Guillen v.
U.S. Attorney General, 2019 WL 669715 (11th Cir. Feb. 19,
2019), does not alter our conclusion. Not only had the
petitioner abandoned the argument that a Notice of Hearing
cannot cure a defective Notice to Appear, but Molina-
Guillen does not engage the statutory text. Id. at *4. It merely
notes that a subsequent “Notice of Hearing, which contained
the date and time of the removal hearing, was served on
Molina-Guillen . . . . Together, the December 2005 Notice to
Appear and the March 2006 Notice of Hearing fulfilled the
notice requirements in § 1229(a)(1).” Id. We are
unpersuaded by this cursory analysis.
CONCLUSION
We hold that a Notice to Appear that is defective under
Pereira cannot be cured by a subsequent Notice of Hearing.
The law does not permit multiple documents to collectively
satisfy the requirements of a Notice to Appear. Thus,
Lorenzo never received a valid Notice to Appear and his
residency continued beyond 2008. Accordingly, he has
resided in the United States for over seven years and is
eligible for cancellation of removal.
Because we hold that Lorenzo’s residence was not
terminated, there is no need to opine on his other arguments.
Moreover, the question presented here is purely legal, so
remand to consider the impact of Pereira is unwarranted. See
Ceguerra v. Sec’y of Health & Human Servs., 933 F.2d 735,
741 (9th Cir. 1991) (“[A] purely legal inquiry . . . does not
require remand.”); see also Ortiz-Magana v. Mukasey,
542 F.3d 653, 658 n.1 (9th Cir. 2008) (declining to remand
20 LORENZO LOPEZ V. BARR
where “no additional information would be available that
previously was not” and the panel “can resolve the legal
question on the basis of available evidence”). Accordingly,
we GRANT the petition for review.
CALLAHAN, Circuit Judge dissenting:
I agree with the majority that the United States Supreme
Court’s opinion in Pereira v. Sessions, 138 S. Ct. 2105
(2018), incontrovertibly establishes that for a notice to
appear to trigger the “stop-time rule,” 1 the noncitizen must
be provided with the time and place of the removal
proceedings. 2 However, I do not read Pereira as holding
that the notice of the time and place must be provided in a
single document. Rather, I read Pereira as not prohibiting
the Government from supplementing a deficient notice to
appear by subsequently providing notice of the time and
place of the removal proceedings, with the consequence that
the stop-time rule is triggered upon receipt of the
supplemental notice.
Initially, it should be noted that the majority’s critical
holding—that all items listed in 8 U.S.C. § 1229(a)(1) must
1
Noncitizens who are subject to removal proceedings but have
accrued 10 years of continuous physical presence in the United States
may be eligible for cancellation of removal. 8 U.S.C. § 1229(b)(1). The
“stop-time rule” set forth in § 1229b(d)(1) provides that the period of
continuous physical presence ends when a noncitizen is served with a
notice to appear under 8 U.S.C. §1229(a). See Pereira, 138 S. Ct.
at 2109.
2
Consistent with the Supreme Court’s opinion in Pereira, 138 S. Ct.
2110 n.1, the term “noncitizen” is used to refer to any person who is not
a citizen or national of the United States.
LORENZO LOPEZ V. BARR 21
be contained in a single Notice to Appear—was not in issue
in Pereira, and accordingly was not directly addressed by
the Supreme Court. Pereira entered the United States as a
temporary “non-immigrant visitor” in 2000. Pereira, 138 S.
Ct. at 2112. He was arrested for operating a vehicle while
under the influence of alcohol in 2006. Id. In May 2006, the
Department of Homeland Security (“DHS”) served him with
a “Notice to Appear,” which stated that removal proceedings
were being initiated against him for overstaying his visa, but
“the notice did not specify the date and time of Pereira’s
removal hearing.” Id. More than a year later, DHS
attempted to mail Pereira “a more specific notice setting the
date and time for his initial removal hearing.” Id. “But that
second notice was sent to Pereira’s street address rather than
his post office box (which he had provided to DHS), so it
was returned as undeliverable.” Id. In 2013, Pereira was
arrested for driving without his headlights on and was
subsequently detained by DHS. Id. By this time, if the stop-
time rule was not triggered by the 2006 notice, Pereira had
long since accrued the necessary years of continuous
physical presence in the United States to be eligible for
cancellation of removal. See 8 U.S.C. § 1229b(b)(1).
Because DHS failed to serve Pereira with a supplemental
notice prior to Pereira having been in the United States for
over a dozen years, the Supreme Court was not called upon
to, and did not, address whether all the requirements of a
notice to appear listed in § 1229(a) must be contained in a
single document. 3
3
Title 8 U.S.C. § 1229(a)(1) states:
(a) Notice to appear
22 LORENZO LOPEZ V. BARR
(1) In general
In removal proceedings under section 1229a of
this title, written notice (in this section referred to
as a “notice to appear”) shall be given in person
to the alien (or, if personal service is not
practicable, through service by mail to the alien or
to the alien's counsel of record, if any) specifying
the following:
(A) The nature of the proceedings against the
alien.
(B) The legal authority under which the
proceedings are conducted.
(C) The acts or conduct alleged to be in violation
of law.
(D) The charges against the alien and the statutory
provisions alleged to have been violated.
(E) The alien may be represented by counsel and
the alien will be provided (i) a period of time to
secure counsel under subsection (b)(1) and (ii) a
current list of counsel prepared under subsection
(b)(2).
(F)(i) The requirement that the alien must
immediately provide (or have provided) the
Attorney General with a written record of an
address and telephone number (if any) at which
the alien may be contacted respecting proceedings
under section 1229a of this title.
(ii) The requirement that the alien must provide
the Attorney General immediately with a written
record of any change of the alien's address or
telephone number.
LORENZO LOPEZ V. BARR 23
Instead, the Court first narrowed the dispositive question
to whether “a ‘notice to appear’ that does not specify the
‘time and place at which the proceedings will be held,’ as
required by § 1229(a)(1)(G)(i), trigger[s] the stop-time
rule.” Id. at 2113. It then held, contrary to the position
advocated by the Government, that “[a] putative notice to
appear that fails to designate the specific time or place of the
noncitizen’s proceeding is not a ‘notice to appear under
section 1229(a),’ and so does not trigger the stop-time rule.”
Id. at 2114.
From the Pereira holding, the majority leaps to the
conclusion that the notice of hearing that Lorenzo
subsequently received—that did provide notice of the time
and place of his removal proceeding—did not, as a matter of
law, cure the defect in the initial notice to appear, and that
the only cure is for DHS to issue, now years later, a new
“Notice To Appear.” Maj. Op. at 19.
The majority first supports its conclusion not by relying
on the Supreme Court’s opinion in Pereira, but by rejecting
the Government’s reliance on our opinion in Popa v. Holder,
571 F.3d 890 (9th Cir. 2009). Maj. Op. at 7–10. But the
Supreme Court’s rejection of our holding in Popa that a
notice to appear need not contain the time and place of the
(iii) The consequences under section 1229a(b)(5)
of this title of failure to provide address and
telephone information pursuant to this
subparagraph.
(G)(i) The time and place at which the
proceedings will be held. (ii) The consequences
under section 1229a(b)(5) of this title of the
failure, except under exceptional circumstances,
to appear at such proceedings.
24 LORENZO LOPEZ V. BARR
proceedings, says nothing about whether all items listed in
§ 1229(a)(1) need to be contained in a single document.
Similarly, the majority’s assertion that the Supreme
Court “scrapped the notion that ‘practical considerations’ . . .
excuse[d] the failure to provide ‘specific time, date and
place’ information,’” Maj. Op. at 11, again says nothing
about whether a notice that fails to provide this information
can be cured by a subsequent document that fully provides
specific time, date, and place information.
Instead, the majority asserts that § 1229(a) “speaks
clearly” in rejecting the position that the requisite notice may
be contained in more than one document. The majority
reasons that because 8 U.S.C. § 1229b(d)(1) states “when the
alien is served a notice to appear,” the “use of the singular
indicates that service of a single document—not multiple—
triggers the stop-time rule.” Maj. Op. at 12. But even if
§ 1229b(d)(1)’s use of the singular contemplates that the
notice to appear is generally issued in a single document, it
does not follow that all the criteria listed in § 1229(a) must
be contained in a single document. 4
The majority reads too much into the “use of the
singular” in § 1229b. Title 1 U.S.C. § 1 states that “[i]n
determining the meaning of any Act of Congress, unless the
context indicates otherwise– words importing the singular
include and apply to several persons, parties or things. . . .”
The statutory context provides no indication that the use of
the singular in § 1229b(d)(1) imposes a formalistic
4
A further indication that the Supreme Court in Pereira was
concerned with the general need for notice of the time and place of the
removal proceedings may be gleaned from its discussion of the need for
a “notice to appear,” rather than a single “Notice to Appear” containing
all of the criteria set forth in § 1229(a)(1).
LORENZO LOPEZ V. BARR 25
requirement that the notice be provided within a single
document and that a deficiency may not be “cured” by a
subsequent notice that includes the previously missing time
and place information. Section 1229(a)(2) contemplates that
there may be changes in the time or place of the removal
proceedings of which the noncitizen must be notified. Here,
Lorenzo was served with an April 11, 2008 notice of hearing
setting forth the time and place for his removal proceedings
and he appeared, with counsel, before the IJ on June 27,
2018. There can be no doubt that Lorenzo had actual notice
of the time and place of his removal proceedings well before
his June 27, 2018 hearing. The statute’s use of the singular
is too slender a reed to support the majority’s insistence that
all the criteria in § 1229(a)(1) must be contained in a single
document.
The majority’s cite to United States v. Hayes, 555 U.S.
415, 421 (2009), hardly strengthens the reed because, in my
view, the majority’s reliance on “a notice” frustrates, rather
than furthers, “Congress’ aim.” Id. at 422 n.5. Furthermore,
the Board of Immigration Appeals, sitting en banc, has
declined to read the provision as requiring that the “written
notice be in a single document.” Matters of Mendoza-
Hernandez and Capula-Cortes, 27 I. & N. Dec. 520, 531
(BIA 2019) (en banc). 5
5
The BIA continued:
Rather, it may be provided in one or more
documents—in a single or multiple mailings. And it
may be served personally, by mail, or by a
combination of both, so long as the essential
information is conveyed in writing and fairly informs
the alien of the time and place of the proceeding.
26 LORENZO LOPEZ V. BARR
The Supreme Court’s concern in Pereira was with
noncitizens receiving notification of the time and place of
the removal proceedings and not with whether all the
information was contained in a single document, entitled
“Notice to Appear.” In other words, the court was concerned
with the noncitizen receiving the information rather than the
form of the notice. Indeed, all the concerns underlying the
Supreme Court’s ruling in Pereira are satisfied by a properly
served second document that supplements a deficient initial
notice. The second notice then provides noncitizens with
notice of the time and place of the proceedings that “is the
essential function of a notice to appear, for without it, the
Government cannot reasonably expect the noncitizen to
appear for his removal proceeding.” Pereira, 138 S. Ct. at
2115. Similarly, such a notice would assure the noncitizen
of the opportunity to secure counsel before the hearing. See
id. at 2114–15; see also 8 U.S.C. § 1229(a)(2)(b)(1)
(requiring that in order to allow the noncitizen to secure
counsel, the hearing date shall not be scheduled earlier than
10 days after the service of the notice). Also, allowing the
Government to furnish time and place information in a
second document and triggering the stop-time rule on receipt
of that notice make it more difficult for a noncitizen “to
manipulate or delay removal proceedings to ‘buy time.’” Id.
at 2119.
My reading of Pereira is also the BIA’s position.
Mendoza-Hernandez, 27 I. & N. Dec. 520. In reading
Pereira, the BIA stressed the Court’s restriction of its ruling
to a narrow issue, and its choice not to address the two-part
notice process. Id. at 527–28. The BIA noted that the Court
“explained that the fundamental purpose of notice is to
convey essential information to the [noncitizen], such that
Mendoza-Hernandez, 27 I. & N. Dec. at 531.
LORENZO LOPEZ V. BARR 27
the notice creates a reasonable expectation of the
[noncitizen’s] appearance at the removal proceeding.” Id. at
531. The BIA held:
We conclude that in cases where a notice to
appear does not specify the time or place of
[a noncitizen’s] initial removal hearing, the
subsequent service of a notice of hearing
containing that information perfects the
deficient notice to appear, triggers the “stop-
time” rule, and ends the [noncitizen’s] period
of continuous residence or physical presence
in the United States.
Id. at 529. 6 Id. at 535. The BIA further observed that
“[n]one of the courts involved in the circuit split had held
that service of a subsequent notice of hearing that included
time and place information was insufficient to perfect the
notice to appear.” Id. at 534–35.
The majority declines to defer to Mendoza-Hernandez,
but the majority’s reasoning is not persuasive. It first
suggests that we do not defer to an agency’s interpretation of
a Supreme Court opinion. Maj. Op. at 14. True enough, but
this does not mean that the position of the agency most
effected by a statute does not deserve some consideration.
Moreover, as I have explained, my reading of Pereira,
although consistent with the BIA’s reading, is in no way
6
This position was foretold in the BIA’s decision in Matter of
Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018). There the BIA
held that a notice to appear that did not specify the time and place of a
noncitizen’s removal hearing nonetheless vests the IJ with jurisdiction
over the removal proceedings. The BIA emphasized that unlike Pereira,
Bermudez-Cota “was properly served with both a notice to appear and a
subsequent notice of hearing.” Id. at 443.
28 LORENZO LOPEZ V. BARR
based on the BIA’s decision. Second, the majority asserts
that the BIA’s analysis is disingenuous. Maj. Op. at 14. But
this is just another way of disagreeing with my perspective
and the BIA’s perspective, as demonstrated by the majority’s
reliance on the dissent in Mendoza-Hernandez. The
majority asserts that there is no ambiguity in the statute, but
I find the BIA’s recognition that Pereira can be read in a
literal sense to reach a different result to be a fairer
description of the overall question. Finally, the majority
argues that the BIA may not rely on prior circuit decisions,
such as Popa, because they were abrogated by Pereira. Maj.
Op. at 16. But Pereira’s abrogation of cases such as Popa
was not a ruling on the two-part notice process at issue in
this case.
I continue to read Pereira as allowing for a two-part
notice process and find this approach to be consistent with
our opinion in Karingithi v. Whitaker, 913 F.3d 1158 (9th
Cir. 2019). Karingithi, like Lorenzo, had received a notice
to appear that did not specify the date and time of the
removal hearing. 7 Id. at 1159. Karingithi argued “that if a
notice to appear does not state the time for her initial removal
hearing, it is not only defective under § 1229(a), but also
does not vest jurisdiction with the IJ.” Id. at 1160. We
disagreed, holding that the Immigration Court’s jurisdiction
was governed by regulation, not by § 1229(a), and thus a
notice to appear need not include time and date information
to vest jurisdiction in the IJ. Id. We held that “Pereira
simply has no application here,” noting that the only
question in Pereira “was whether the petitioner was eligible
for cancellation of removal,” and the “Court’s resolution of
7
Our opinion also noted that Karingithi “had actual notice of the
hearings through multiple follow-up notices that provided the date and
time of each hearing.” Id. at 1159.
 LORENZO LOPEZ V. BARR 29
that ‘narrow question’ cannot be recast into a broad
jurisdictional rule.” Id. at 1161.
Although Karingithi, as well as Bermudez-Cota, 27 I. &
N. Dec. 441, concerned the interpretation of regulations that
are not applicable to Lorenzo’s case, the majority, like
Karingithi and Bermudez-Cota, seeks to expand the “narrow
question” addressed in Pereira into a broad pronouncement.
The sounder approach, as reflected in our opinion in
Karingithi, and in the BIA’s en banc opinion in Mendoza-
Hernandez is to abide by the Supreme Court’s statement that
it decided the “much narrower” issue. Pereira, 138 S. Ct.
at 2113.
Furthermore, we should not frustrate Congressional
intent by expanding Pereira beyond its narrow holding.
Section 1229b sets forth a clear policy that a noncitizen
becomes eligible for cancellation of removal only after
residing in the country for a certain number of years.
Furthermore, § 1229b(d)(1) clearly states that “any period of
continuous residence or continuous physical presence” ends
“when the alien is served a notice to appear.” Pereira
requires that DHS’s misinterpretation of the statute as
permitting notices that do not set forth the time and place for
removal proceedings be corrected. That misinterpretation
and the concerns underlying Pereira are resolved by
allowing DHS to cure an initial notice to appear with a
subsequent notice of hearing setting forth the time and place
of the removal proceeding and stopping the clock upon the
noncitizen’s receipt of the subsequent notice. Requiring
DHS to serve new notices to appear on all noncitizens who
received deficient notices to appear, rather than allowing for
subsequent notices of hearing, is a windfall for noncitizens
and unnecessarily interferes with Congress’s intent.
30 LORENZO LOPEZ V. BARR
I read Pereira as allowing DHS to cure a deficient notice
to appear by subsequently providing a noncitizen with actual
notice of the time and place of the removal proceedings, with
the result that the stop-time rule is triggered upon the
noncitizen’s receipt of the supplemental notice.
Accordingly, I dissent from the majority’s opinion.