Serah Karingithi v. Matthew Whitaker , 913 F.3d 1158 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERAH NJOKI KARINGITHI, No. 16-70885
Petitioner,
Agency No.
v. A087-020-992
MATTHEW G. WHITAKER, Acting
Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 11, 2018
San Francisco, California
Filed January 28, 2019
Before: M. Margaret McKeown, William A. Fletcher,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge McKeown
2 KARINGITHI V. WHITAKER
SUMMARY *
Immigration
The panel denied Serah Karingithi’s petition for review
of the Board of Immigration Appeals’ denial of relief from
removal, holding that a notice to appear that does not specify
the time and date of an alien’s initial removal hearing vests
an immigration judge with jurisdiction over the removal
proceedings, so long as a notice of hearing specifying this
information is later sent to the alien in a timely manner.
The Supreme Court recently held in Pereira v. Sessions,
138 S. Ct. 2105 (2018), that a notice to appear lacking the
time and date of the hearing before an immigration judge is
insufficient to trigger the stop-time rule for purposes of
cancellation of removal relief. In light of Pereira, Karingithi
argued that a notice to appear lacking the time and date of
the hearing was insufficient to vest jurisdiction with the
immigration court.
The panel rejected this argument. The panel noted that
Pereira addressed the required contents of a notice to appear
in the context of the stop-time rule and the continuous
physical presence requirement for cancellation of removal
under 8 U.S.C. §§ 1229(a), 1229b, but was not in any way
concerned with the immigration court’s jurisdiction. The
panel held that Pereira’s narrow ruling does not control the
analysis of the immigration court’s jurisdiction because,
unlike the stop-time rule, the immigration court’s
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KARINGITHI V. WHITAKER 3
jurisdiction does not hinge on § 1229(a). The panel
explained that the issue of immigration court jurisdiction is
instead governed by federal immigration regulations,
including 8 C.F.R. §§ 1003.13, 1003.14(a), 1003.15(b),
which do not require that the charging document include the
time and date of the hearing.
The panel noted that its reading of the regulations was
consistent with the Board’s recent decision in Matter of
Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), which held
that “a notice to appear that does not specify the time and
place of an alien’s initial removal hearing vests an
Immigration Judge with jurisdiction over the removal
proceedings . . . so long as a notice of hearing specifying this
information is later sent to the alien.” The panel also
concluded that the Board’s decision in Bermudez-Cota
warranted deference.
Because the charging document in this case satisfied the
regulatory requirements, and Karingithi received subsequent
timely notices including the time and date of her hearing, the
panel held that the immigration judge had jurisdiction over
the removal proceedings.
The panel declined to consider Karingithi’s argument, in
the alternative, that Pereira renders her eligible for
cancellation of removal, because cancellation relief was a
new claim that was not part of the present petition for review.
The panel addressed the merits of Karingithi’s petition
for review of the denial of asylum and related relief in a
contemporaneously filed memorandum disposition.
4 KARINGITHI V. WHITAKER
COUNSEL
Rudy Lieberman (argued), Law Office of Rudy Lieberman,
San Francisco, California, for Petitioner.
Greg D. Mack (argued) and Leslie M. McKay, Senior
Litigation Counsel; Terri J. Scadron, Assistant Director;
Joseph H. Hunt, Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
Lonny Hoffman, Law Foundation Professor of Law,
University of Houston Law Center, Houston, Texas, as and
for Amicus Curiae.
OPINION
McKEOWN, Circuit Judge:
We consider whether the Immigration Court has
jurisdiction over removal proceedings when the initial notice
to appear does not specify the time and date of the
proceedings, but later notices of hearing include that
information. This question is governed by federal
immigration regulations, which provide that jurisdiction
vests in the Immigration Court when a charging document,
such as a notice to appear, is filed. 8 C.F.R. §§ 1003.13,
1003.14(a). The regulations specify the information a notice
to appear must contain; however, the time and date of
removal proceedings are not specified. 8 C.F.R.
§ 1003.15(b). Because the charging document in this case
satisfied the regulatory requirements, we conclude the
Immigration Judge (“IJ”) had jurisdiction over the removal
proceedings. This reading is consistent with the recent
KARINGITHI V. WHITAKER 5
interpretation of these regulations by the Board of
Immigration Appeals (“BIA” or the “Board”), see Matter of
Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), and the
only other court of appeals to reach this issue, see
Hernandez-Perez v. Whitaker, 911 F.3d 305, 310–15 (6th
Cir. 2018). We also note that the petitioner, Serah Njoki
Karingithi, had actual notice of the hearings through
multiple follow-up notices that provided the date and time of
each hearing.
The Supreme Court recently addressed the required
contents of a notice to appear in the context of cancellation
of removal under 8 U.S.C. §§ 1229(a), 1229b. Pereira v.
Sessions, 138 S. Ct. 2105 (2018). Pereira was not in any
way concerned with the Immigration Court’s jurisdiction.
Rather, the Court considered what information a notice to
appear must contain to trigger the stop-time rule, which
determines whether a noncitizen has been continuously
present in the United States long enough to be eligible for
cancellation of removal. Id. at 2110; see also 8 U.S.C.
§ 1229b. Unlike the stop-time rule, the Immigration Court’s
jurisdiction does not hinge on § 1229(a), so Pereira’s narrow
ruling does not control our analysis. We conclude that the IJ
had jurisdiction over Karingithi’s removal proceedings and
that the Board properly denied her petition. We address the
merits of Karingithi’s petition for review in a separate
memorandum disposition filed contemporaneously with this
Opinion.
BACKGROUND
Karingithi, a native of Kenya, entered the United States
on July 7, 2006 on a tourist visa. She violated her visa’s
terms by remaining in the United States past its six-month
limit. On April 3, 2009, the Department of Homeland
Security commenced removal proceedings by filing a notice
6 KARINGITHI V. WHITAKER
to appear with the Immigration Court, charging Karingithi
with removability under 8 U.S.C. § 1227(a)(1)(B). The
notice to appear specified the location of the removal
hearing. The date and time were “To Be Set.” The same
day, Karingithi was issued a notice of hearing, which
provided the date and time of the hearing.
Karingithi conceded removability, but filed with the
Immigration Court an application for asylum, withholding of
removal, and protection under the Convention Against
Torture. In the alternative, she requested voluntary
departure. After multiple continuances spanning five years,
as well as numerous hearing notices providing the date and
time of proceedings, the IJ rejected all four grounds for
relief, and ordered Karingithi removed. The BIA affirmed.
Karingithi now challenges the IJ’s jurisdiction over her
removal proceedings and the BIA’s decision.
ANALYSIS
The Attorney General has promulgated regulations
governing removal proceedings, including when jurisdiction
vests with the IJ. The relevant regulation, entitled
“Jurisdiction and commencement of proceedings,” dictates
that “[j]urisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document
is filed with the Immigration Court.” 8 C.F.R. § 1003.14(a).
A charging document is “the written instrument which
initiates a proceeding before an Immigration Judge,” and one
of the enumerated examples is a notice to appear. 8 C.F.R.
§ 1003.13.
Because both the regulation and a statutory provision,
8 U.S.C. § 1229(a), list requirements for the contents of a
notice to appear, we consider whether their requirements
differ, and if so, which authority governs the Immigration
KARINGITHI V. WHITAKER 7
Court’s jurisdiction. According to the regulation, a notice to
appear must include specified information, such as “[t]he
nature of the proceedings,” “[t]he acts or conduct alleged to
be in violation of law,” and “[n]otice that the alien may be
represented, at no cost to the government, by counsel or
other representative.” 8 C.F.R. § 1003.15(b). Importantly,
the regulation does not require that the time and date of
proceedings appear in the initial notice. See id. Rather, the
regulation compels inclusion of such information “where
practicable.” 8 C.F.R. § 1003.18(b) (emphasis added).
When “that information is not contained in the Notice to
Appear,” the regulation requires the IJ to “schedul[e] the
initial removal hearing and provid[e] notice to the
government and the alien of the time, place, and date of
hearing.” 1 Id.Section 1229(a) requires that “[i]n removal proceedings
. . . written notice (in this section referred to as a ‘notice to
appear’) [ ] be given” to the noncitizen. The statute goes on
to specify what information the notice must contain, and it
largely mirrors the regulation’s requirements with one
significant difference: it requires, without qualification,
inclusion of “[t]he time and place at which the proceedings
will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). Notably, the
statute is silent as to the jurisdiction of the Immigration
Court. See generally 8 U.S.C. § 1229.
Karingithi argues that if a notice to appear does not state
the time for her initial removal hearing, it is not only
1
Pereira appears to discount the relevance of 8 C.F.R. § 1003.18 in
the distinct context of eligibility for cancellation of removal. See
Pereira, 138 S. Ct. at 2111. However, as discussed below, Pereira’s
narrow holding does not govern the jurisdictional question that we
address.
8 KARINGITHI V. WHITAKER
defective under § 1229(a), but also does not vest jurisdiction
with the IJ. The flaw in this logic is that the regulations, not
§1229(a), define when jurisdiction vests. Section 1229 says
nothing about the Immigration Court’s jurisdiction. And for
their part, the regulations make no reference to § 1229(a)’s
definition of a “notice to appear.” See generally 8 C.F.R.
§§ 1003.13–1003.14. If the regulations did not clearly
enumerate requirements for the contents of a notice to appear
for jurisdictional purposes, we might presume they sub
silentio incorporated § 1229(a)’s definition. Cf. Sorenson v.
Sec’y of Treasury, 475 U.S. 851, 860 (1986) (“The normal
rule of statutory construction assumes that identical words
used in different parts of the same act are intended to have
the same meaning.” (internal quotation marks omitted)). But
the plain, exhaustive list of requirements in the jurisdictional
regulations renders that presumption inapplicable here. Not
only does that list not include the time of the hearing, reading
such a requirement into the regulations would render
meaningless their command that such information need only
be included “where practicable.” 8 C.F.R. § 1003.18(b).
The regulatory definition, not the one set forth in § 1229(a),
governs the Immigration Court’s jurisdiction. A notice to
appear need not include time and date information to satisfy
this standard. Karingithi’s notice to appear met the
regulatory requirements and therefore vested jurisdiction in
the IJ.
Pereira does not point to a different conclusion. To
begin, Pereira dealt with an issue distinct from the
jurisdictional question confronting us in this case. At issue
was the Attorney General’s statutory authority to cancel
removal of “an alien who . . . has been physically present in
the United States for a continuous period of not less than
10 years immediately preceding the date of” her application
for relief. 8 U.S.C. § 1229b(b)(1)(A). Under the statute’s
KARINGITHI V. WHITAKER 9
“stop-time rule,” the “period of . . . continuous physical
presence” is “deemed to end . . . when the alien is served a
notice to appear under section 1229(a).” 8 U.S.C.
§ 1229b(d)(1). In Pereira, the Court acknowledged that it
decided only a single, “narrow question”: “If the
Government serves a noncitizen with a document that is
labeled ‘notice to appear,’ but the document fails to specify
either the time or place of the removal proceedings, does it
trigger the stop-time rule?” Pereira, 138 S. Ct. at 2110. The
Court held it did not, emphasizing multiple times the
narrowness of its ruling. See, e.g., id. at 2110, 2113.
Pereira’s analysis hinges on “the intersection” of two
statutory provisions: § 1229b(d)(1)’s stop-time rule and
§ 1229(a)’s definition of a notice to appear. Id. at 2110. The
stop-time rule is not triggered by any “notice to appear”—it
requires a “notice to appear under section 1229(a).”
8 U.S.C. § 1229b(d)(1) (emphasis added). Pereira treats
this statutory cross-reference as crucial: “the word ‘under’
provides the glue that bonds the stop-time rule to the
substantive time-and-place requirements mandated by
§ 1229(a).” Pereira, 138 S. Ct. at 2117. There is no “glue”
to bind § 1229(a) and the jurisdictional regulations: the
regulations do not reference § 1229(a), which itself makes
no mention of the IJ’s jurisdiction. Pereira’s definition of a
“notice to appear under section 1229(a)” does not govern the
meaning of “notice to appear” under an unrelated regulatory
provision.
In short, Pereira simply has no application here. The
Court never references 8 C.F.R. §§ 1003.13, 1003.14, or
1003.15, nor does the word “jurisdiction” appear in the
majority opinion. This silence is hardly surprising, because
the only question was whether the petitioner was eligible for
cancellation of removal. Pereira, 138 S. Ct. at 2112–13.
10 KARINGITHI V. WHITAKER
The Court’s resolution of that “narrow question” cannot be
recast into the broad jurisdictional rule Karingithi advocates.
The BIA recently issued a precedential opinion in which
it rejected an argument identical to the one advanced by
Karingithi. Bermudez-Cota, 27 I. & N. Dec. at 442–44. The
BIA’s interpretations of its regulations are due “substantial
deference,” and should be upheld “so long as the
interpretation sensibly conforms to the purpose and wording
of the regulations.” Lezama-Garcia v. Holder, 666 F.3d
518, 525 (9th Cir. 2011) (internal quotation marks omitted).
We therefore defer to the Board’s interpretations of
ambiguous regulations unless they are “plainly erroneous,”
“inconsistent with the regulation,” or do “not reflect the
agency’s fair and considered judgment.” Id. (internal
quotation marks omitted). Bermudez-Cota easily meets this
standard and is consistent with our analysis.
In Bermudez-Cota, the Board stated that “a notice to
appear that does not specify the time and place of an alien’s
initial removal hearing vests an Immigration Judge with
jurisdiction over the removal proceedings . . . so long as a
notice of hearing specifying this information is later sent to
the alien.” Id. at 447. Regarding the regulations, the Board
emphasized that 8 C.F.R. § 1003.14(a) does not “mandate
that the [charging] document specify the time and date of the
initial hearing before jurisdiction will vest” and that
“8 C.F.R. § 1003.15(b) . . . does not mandate that the time
and date of the initial hearing must be included in that
document.” Id. at 445. The Board also noted that the
regulations only require a notice to appear to include the
“time, place and date of the initial removal hearing, where
practicable.” Id. at 444 (quoting 8 C.F.R. § 1003.18(b))
(emphasis in original).
KARINGITHI V. WHITAKER 11
The BIA also found Pereira’s analysis inapplicable to
the Immigration Court’s jurisdiction, noting that “the
respondent is not seeking cancellation of removal, and the
‘stop-time’ rule is not at issue, so Pereira is distinguishable.”
Id. at 443. The BIA placed significant weight on the fact
that, in Pereira, “the Court did not purport to invalidate the
alien’s underlying removal proceedings or suggest that
proceedings should be terminated.” Id.Recognizing the weakness of her jurisdictional
argument, Karingithi urges, in the alternative, that Pereira
renders her eligible for cancellation of removal. However,
cancellation is a new claim that is not part of this petition for
review. Karingithi has raised her cancellation claim in a
motion to reconsider to the BIA, and she must await its
determination. See Plaza-Ramirez v. Sessions, 908 F.3d
282, 286 (7th Cir. 2018) (refusing to consider cancellation
claim pending before BIA that had not been raised in initial
administrative proceeding); see also Garcia v. Lynch,
786 F.3d 789, 792–93 (9th Cir. 2015) (noting that we cannot
“reach[ ] the merits of a legal claim not presented in
administrative proceedings below” (internal quotation marks
omitted)).
The bottom line is that the Immigration Court had
jurisdiction over Karingithi’s removal proceedings. And, as
in Bermudez-Cota, the hearing notices Karingithi received
specified the time and date of her removal proceedings.
Thus, we do not decide whether jurisdiction would have
vested if she had not received this information in a timely
fashion.
PETITION DENIED.