United States v. Juan Cortez

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN CORTEZ, a/k/a Jasinto Morales,
Defendant - Appellant.
------------------------------
STEVEN ABRAMS; ESMERALDA CABRERA; TEOFILO CHAPA; JEFFREY
S. CHASE; GEORGE T. CHEW; MATTHEW J. D’ANGELO; BRUCE J.
EINHORN; CECELIA M. ESPENOZA; NOEL FERRIS; JOHN F. GOSSART,
JR.; MIRIAM HAYWARD; REBECCA JAMIL; WILLIAM P. JOYCE; CAROL
KING; ELIZABETH A. LAMB; MARGARET MCMANUS; CHARLES ERNST
PAZAR; LAURA RAMIREZ; JOHN W. RICHARDSON; LORY DIANA
ROSENBERG; SUSAN ROY; PAUL WILLIAM SCHMIDT; DENISE
NOONAN SLAVIN; ANDREA H. SLOAN; WILLIAM PETER VAN WYKE;
GUSTAVO D. VILLAGELIU; POLLY A. WEBBER,
Amici Supporting Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Lynchburg. Norman K. Moon, Senior District Judge. (6:18-cr-00022-NKM-1)
Argued: May 9, 2019 Decided: July 17, 2019
Amended: July 19, 2019
Before MOTZ, AGEE, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz
and Judge Agee joined.
ARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Harrisonburg, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF
THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF:
Juval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa M. Lorish, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Thomas T. Cullen, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
2
PAMELA HARRIS, Circuit Judge:
Juan Cortez, a citizen of Mexico, was charged with illegally reentering the United
States after having been removed years prior. Cortez conceded that he was unlawfully
present, but argued that his initial removal order was invalid because of an alleged filing
defect that deprived the immigration court of “jurisdiction” over his case. The district
court rejected that argument, and Cortez subsequently pleaded guilty while preserving his
right to raise the issue on appeal.
We affirm the district court’s order. We first hold that the premise of Cortez’s
argument – that the purported filing defect in his case deprived the immigration court of
authority to enter a removal order, so that he may collaterally challenge that order in
subsequent criminal proceedings – is incorrect. And in any event, there in fact was no
defect. As the district court explained, the applicable regulations do not require that the
information identified by Cortez – a date and time for a subsequent removal hearing – be
included in the “notice to appear” that is filed with an immigration court to initiate
proceedings.
I.
A.
Juan Cortez is a citizen of Mexico who has been found to be unlawfully present in
the United States on two occasions. The first was in 2011. On February 27 of that year,
the Department of Homeland Security (“Department”) served Cortez with a document
3
labeled “Notice to Appear.” That notice advised him, among other things, that he was
charged with being unlawfully present in the country, and that the Department was
initiating removal proceedings against him. The notice provided Cortez with the location
of the immigration court where his removal hearing would be held, but did not provide a
date and time, stating only that the hearing would occur “on a date to be set at a time to
be set.” J.A. 10. At the same time it served Cortez with this written notice, however, the
Department orally informed him of his hearing date and time.
The Department filed the notice to appear with the immigration court on March 3,
2011. Two weeks later, on March 17, 2011, the immigration court held a removal
hearing, which Cortez attended via video conference. The immigration judge confirmed
that Cortez was unlawfully present and ordered that he be removed from the country.
There is no indication that Cortez challenged the contents of the notice to appear or the
immigration judge’s authority to order his removal, and Cortez neither administratively
nor judicially appealed the removal order on any ground. Cortez was removed from the
United States in April 2011.
B.
At some point following his removal, Cortez entered the United States a second
time, again without applying for legal admission. In September 2018, the government
located Cortez in the vicinity of Lynchburg, Virginia. This time, the government
criminally charged Cortez with illegal reentry under 8 U.S.C. § 1326(a), which is violated
when an individual who previously was “deported” or “removed” from the country
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“enters, attempts to enter, or is at any time found in, the United States” without legal
authorization.
Before the district court, Cortez moved to dismiss the indictment against him. He
conceded that he had entered the United States without legal authority, so that the second
element of his criminal charge – unlawful presence – was satisfied. But the first element
– a previous removal from the country – was not satisfied, Cortez argued, because even
though he attended his 2011 immigration hearing, “the immigration judge lacked subject
matter jurisdiction to enter an order of removal against him.” J.A. 6. It followed, Cortez
contended, that his 2011 removal order was void, and could not be the basis for a charge
under § 1326(a).
As a general rule, Cortez recognized, a criminal defendant may collaterally attack
a removal order in a prosecution for illegal reentry only if three conditions are met: “(1)
[he] exhausted any administrative remedies that may have been available to seek relief
against the order; (2) the deportation proceedings at which the order was issued
improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the
order was fundamentally unfair.” 8 U.S.C. § 1326(d). But according to Cortez, that
framework did not apply because he was challenging the “subject matter jurisdiction” of
the immigration court, “an issue that cannot be waived or forfeited.” And even if it did
apply, Cortez argued, a lack of “subject matter jurisdiction” by itself satisfied all three
prerequisites for a collateral attack under § 1326(d).
The purported error at the heart of Cortez’s claim was the failure of the notice to
appear filed in connection with his 2011 removal proceeding to specify a date and time
5
for his hearing. Under the regulations governing removal proceedings, Cortez explained,
proceedings commence and “[j]urisdiction vests” with the immigration judge when a
“charging document” is filed with the immigration court. 8 C.F.R. § 1003.14(a). The
regulations list three documents that may qualify as “charging document[s],” including a
“[n]otice to [a]ppear.” Id. § 1003.13. And a “notice to appear,” Cortez finished, is
defined in the Immigration and Nationality Act (“INA”) itself, which requires that a
“notice to appear” include the “time and place at which the proceedings will be held,” 8
U.S.C. § 1229(a)(1)(G)(i); see also Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018)
(confirming that notice to appear under § 1229(a) “include[s] . . . the time and place of
the removal proceedings”). Putting all of that together, Cortez argued that because the
notice filed in his case omitted a hearing time, it did not vest the immigration court with
“jurisdiction,” rendering his removal order a legal nullity.
The district court disagreed. The court did not dispute the premise of Cortez’s
argument: that a defect in the notice to appear would implicate the immigration court’s
jurisdiction and allow for a collateral attack on the removal order. But, the court held, the
notice to appear was not defective, because the regulatory definition of the “notice to
appear” that vests a court with “jurisdiction” under 8 C.F.R. § 1003.14(a) does not “list
the time and date of the removal proceedings as required criteria.” J.A. 18 (citing 8
C.F.R. § 1003.15(b)–(c)). Cortez, the court reasoned, was pointing to the wrong
definition of “notice to appear”: The statutory provision in § 1229(a) does not address
“the immigration court’s . . . jurisdiction over the proceeding,” but is instead concerned
with the separate issue of providing notice to a noncitizen in a removal proceeding. Id.
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Because Cortez had shown no defect affecting the immigration court’s
“jurisdiction,” the court concluded, he could attack his removal order collaterally only if
he could satisfy the standard § 1326(d) requirements. Jumping directly to the third
requirement, the court held that Cortez’s removal order was not “fundamentally unfair,”
J.A. 20, in part because Cortez – who attended his hearing after being provided with oral
notice of the date and time – suffered no “actual prejudice,” J.A. 21. Accordingly, the
district court denied Cortez’s motion to dismiss the indictment against him.
Cortez pleaded guilty less than two weeks later, and the district court sentenced
him to time served. Cortez’s plea agreement reserved his right to appeal the district
court’s ruling on his motion to dismiss the indictment, and he timely noticed this appeal.
II.
Cortez makes the same argument on appeal as he did before the district court:
Because no proper notice to appear was filed in his removal proceedings, the immigration
court lacked “jurisdiction,” and as a result, there is no valid removal order on which to
base a prosecution for illegal reentry. We review this claim, which turns on purely legal
questions, de novo, United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009), and find
that the district court correctly denied Cortez’s motion to dismiss.
Before we even reach Cortez’s argument – that the immigration court lacked
“subject matter jurisdiction” to enter his 2011 removal order because of a defect in the
notice to appear filed with the court – we are confronted with a threshold issue. Both
parties assume that a successful challenge to the “subject matter jurisdiction” of an
7
immigration court would by itself be grounds for a collateral attack on a removal order,
relieving Cortez of the obligation to satisfy the § 1326(d) requirements that ordinarily
apply to collateral challenges. We have questions about that assumption, which we
outline below.
We need not resolve the issue, however, because for two independent reasons,
Cortez cannot succeed in his challenge to the immigration court’s “jurisdiction.” First,
the regulation on which Cortez relies, 8 C.F.R. § 1003.14(a), is a docketing rule that does
not implicate the immigration court’s adjudicatory authority, referred to as “subject
matter jurisdiction” by the parties. And in any event, we agree with the district court that
Cortez has failed to show any defect in his notice to appear under that regulation.
A.
At bottom, this case is about a collateral challenge to a removal order in a criminal
proceeding for illegal reentry under 8 U.S.C. § 1326(a). The threshold question
presented is whether Cortez may advance his argument – that the immigration court
lacked “jurisdiction” to issue a removal order in his case – in this posture. The parties
and the district court assumed that Cortez’s challenge to the “subject matter jurisdiction”
of the immigration court, if successful, necessarily would allow for a collateral attack on
his removal order, relieving him of the obligation to satisfy the § 1326(d) requirements
that ordinarily apply. But we have doubts about that assumption. And given the breadth
of its implications – opening to collateral attack every removal order in proceedings
commenced by an incomplete notice, regardless of the significance of the error or the
possibility of prejudice – we do not wish to leave it unaddressed.
8
In a criminal proceeding for illegal reentry, the existence of a removal order
usually is enough to meet the government’s burden of establishing the defendant’s prior
removal or deportation. United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir.
2017). But there is an exception, allowing a defendant to collaterally attack a removal
order – so that it no longer serves as a predicate for a criminal reentry charge – when
there was a “procedural flaw in the immigration proceeding” that prevented the
noncitizen from seeking review when the order was issued, thus violating his due process
rights. Id. at 169; see also United States v. Mendoza-Lopez, 481 U.S. 828 (1987). Under
8 U.S.C. § 1326(d), a noncitizen must make each of three showings to come within that
exception and mount a collateral attack: that (1) he “exhausted any administrative
remedies” available to seek relief against the removal order; (2) the removal proceedings
“improperly deprived [him] of the opportunity for judicial review”; and (3) entry of the
order was “fundamentally unfair.”
It is readily apparent that Cortez cannot make any of those showings. First, Cortez
failed to exhaust his administrative remedies: He neither administratively appealed the
immigration judge’s decision nor provided any explanation for why he could not do so.
Second, Cortez failed to show that the alleged defect in his proceeding – the absence of a
hearing date on the notice filed with the immigration court – somehow deprived him of
the opportunity for judicial review of a removal proceeding of which he had actual notice
and in which he actively participated. Finally, Cortez cannot establish “fundamental
unfairness,” which requires that “but for the errors complained of, there was a reasonable
probability that he would not have been deported,” United States v. El Shami, 434 F.3d
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659, 665 (4th Cir. 2005). Cortez was promptly provided with oral notice of the date and
time of his hearing, which, again, he attended, and there is no reason to believe that the
hearing would have proceeded any differently, much less resulted in a different outcome,
had the notice docketed with the immigration court also provided the same date and time
information.
Thus, Cortez may proceed with his collateral attack only if there is some
exception-to-the-exception that would allow him to bypass these normal requirements.
Cortez argues that there is just such an exception: If he is correct that a defect in the
notice to appear filed with the immigration court to commence his proceedings deprived
the immigration court of “jurisdiction” under 8 C.F.R. § 1003.14(a), then his removal
order was void ab initio and necessarily subject to collateral challenge. But Cortez
provides scant authority for that theory, and we question whether he has framed the issue
correctly.
First, contrary to what seems to be Cortez’s assumption, there is no freestanding
rule allowing for collateral attacks based on a lack of subject matter jurisdiction. Instead,
the opposite is true: “Even subject-matter jurisdiction . . . may not be attacked
collaterally.” Kontrick v. Ryan, 540 U.S. 443, 455 n.9 (2004) (explaining that a lack of
subject matter jurisdiction may be raised at any stage within the same civil proceeding,
but generally is not grounds for collateral challenge). As we have explained, the interest
in the finality of judgments is sufficiently strong that only in exceptional circumstances
will a collateral challenge based on the lack of subject matter jurisdiction be permitted.
Cooper v. Productive Transp. Servs., Inc. (In re Bulldog Trucking, Inc.), 147 F.3d 347,
10
352–53 (4th Cir. 1998). “Mere error in the exercise of jurisdiction” is not enough. Id. at
352. Cortez does not allege exceptional circumstances under this standard, so any
entitlement he has to raise a “jurisdictional” objection to his removal order in this
collateral criminal proceeding must come, if at all, by way of § 1326(d).
Second, there is good reason to question Cortez’s supposition that a claim
characterized as “jurisdictional” should be exempt from § 1326(d)’s limits, including the
statutory exhaustion requirement. Cortez proceeds by analogy to federal court subject
matter jurisdiction under Article III of the Constitution: Challenges to that jurisdiction
cannot be waived or forfeited, see Brickwood Contractors, Inc. v. Datanet Eng’g, Inc.,
369 F.3d 385, 390 (4th Cir. 2004) (en banc), and so, Cortez contends, he did not forfeit
his challenge to the immigration court’s authority over his removal proceeding by
attending his hearing without objecting, nor by failing to raise the issue on administrative
or judicial review as required under § 1326(d)(1)–(2). But an immigration court is not an
Article III court, and a removal proceeding is an agency process, not an Article III
adjudication. And as the Supreme Court has instructed, we should not “reflexive[ly]
exten[d] to agencies . . . the very real division between the jurisdictional and
nonjurisdictional that is applicable to courts.” City of Arlington v. FCC, 569 U.S. 290,
297 (2013). Rather, because the power of administrative agencies (unlike courts) is
prescribed entirely by statute, any “improper[]” agency action is “ultra vires,” and there is
“no principled basis for carving out some arbitrary subset” of agency errors as
“jurisdictional.” Id. at 297–98. Cortez’s claim that the immigration court lacked the
authority to hear his case, in other words, is not meaningfully distinct from a more
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routine claim that an immigration court has misconstrued the INA: “[T]he question –
whether framed as an incorrect application of agency authority or an assertion of
authority not conferred – is always whether the agency has gone beyond what Congress
has permitted it to do.” Id.City of Arlington involved the degree of deference owed to an agency
interpretation of a statute bearing on its own “jurisdiction,” or statutory authority. Id. at
296–97. Several courts, however, have applied City of Arlington to agency adjudications
– precisely the context we face here – and concluded that purported “jurisdictional”
claims are subject to the same statutory limits, including exhaustion requirements and
forfeiture rules, as other claims that an agency has acted improperly. See PGS
Geophysical AS v. Iancu, 891 F.3d 1354, 1362 (Fed. Cir. 2018); 1621 Route 22 W.
Operating Co., LLC v. NLRB, 825 F.3d 128, 140–41 (3d Cir. 2016). Indeed, the Ninth
Circuit held as much in the immigration context years before City of Arlington, finding
that a claim that the immigration court “lacked jurisdiction” over a certain group of
noncitizens “turn[s] on a question of statutory interpretation,” so that normal rules of
exhaustion and forfeiture apply. Xiao v. Barr, 979 F.2d 151, 153, 155 (1992). In short,
we have significant doubts about Cortez’s assumption that the “jurisdictional” nature of
his challenge to his administrative removal order puts him in a different and special
category when it comes to judicial review, exempting him from § 1326(d)’s exhaustion
requirements and other limits on collateral attacks.
The government, however, has not raised this objection. Instead, it accepts
Cortez’s premise that a proceeding conducted outside the scope of an immigration court’s
12
adjudicatory authority must be deemed void on collateral review. Moreover, other courts
addressing similar challenges to the “jurisdiction” of immigration courts have made the
same assumption. See, e.g., Hernandez-Perez v. Whitaker, 911 F.3d 305, 310 (6th Cir.
2018) (finding that propriety of notice to appear commencing removal proceedings “can
never be forfeited or waived” (internal quotation marks omitted)). For purposes of this
appeal, we need not decide conclusively whether that assumption is well-founded. As we
now explain, Cortez in any event cannot establish that his 2011 removal proceeding was
conducted without adjudicatory authority, and that is enough to resolve this case.
B.
Even accepting Cortez’s threshold presumption – that a “jurisdictional” defect in
the notice to appear that commenced his removal proceedings would entitle him to
collaterally challenge his removal order – we find his argument lacking in two
independent respects. First, the purported defect Cortez has identified – the failure of the
notice to appear filed with the immigration court to include a date and time for his
removal hearing – does not implicate the immigration court’s adjudicatory authority or
“jurisdiction.” And second, there is in any event no defect, because the regulations that
govern the filing of a notice to appear do not require inclusion of a hearing date and time.
1.
We start with Cortez’s contention that any defect in the notice that commenced his
removal proceedings would deprive the immigration court of “subject matter jurisdiction”
to issue a removal order. At the outset, we clarify some terminology: When it comes to
administrative agencies, the question of subject matter jurisdiction “is more appropriately
13
framed” as “whether the agency actor, such as the [immigration judge] here, lacked
statutory authority to act” or acted outside its “authority to adjudicate.” United States v.
Arroyo, 356 F. Supp. 3d 619, 624 (W.D. Tex. 2018) (citing City of Arlington, 569 U.S. at
297–98). But however the question is framed, the answer is the same: The regulation on
which Cortez relies, 8 C.F.R. § 1003.14(a), is an internal docketing rule, not a limit on an
immigration court’s “jurisdiction” or authority to act.
Exercising congressionally delegated authority, see 8 U.S.C. § 1103(g)(2), the
Attorney General has promulgated regulations governing the initiation of removal
proceedings. The regulation central to this case, 8 C.F.R. § 1003.14(a), provides that
“[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a
charging document is filed with the Immigration Court.” “Charging document,” in turn,
is defined as “the written instrument which initiates a proceeding before an Immigration
Judge,” and one such document is a “[n]otice to [a]ppear.” Id. § 1003.13. Finally, a
nearby regulation, 8 C.F.R. § 1003.18(b), specifies the contents of a notice to appear, and
– unlike its statutory counterpart in 8 U.S.C. § 1229(a)(1) – does not require a date and
time for a subsequent removal hearing. Instead, that information must be included in a
notice to appear only “where practicable”; if not, the immigration court becomes
responsible for scheduling a hearing and providing the noncitizen with notice of the
“time, place, and date.” 8 C.F.R. § 1003.18(b).
The central question at this stage of our analysis is whether the term “jurisdiction”
in § 1003.14(a) signals a limit on the scope of an immigration court’s adjudicatory
authority, so that a hypothetical defect in a notice to appear filed with the immigration
14
court would deprive the court of authority to hear and decide the case. Both parties
assume this to be true. And a substantial majority of courts addressing this issue have
done likewise, treating § 1003.14(a) as though it implicates an immigration court’s
adjudicatory authority or “subject matter jurisdiction.” See, e.g., Ali v. Barr, 924 F.3d
983, 985–86 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 111–12 (2d Cir.
2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159–62 (9th Cir. 2019); Hernandez-
Perez, 911 F.3d at 310. But some courts – including, most recently, the Seventh Circuit –
have questioned this premise, and held instead that § 1003.14(a) is a procedural claim-
processing rule without jurisdictional implications. See Ortiz-Santiago v. Barr, 924 F.3d
956, 962–64 (7th Cir. 2019); see also United States v. Diaz-Martinez, __ F. Supp. 3d __,
2019 WL 1940600, at *16 (E.D. Va. May 1, 2019); United States v. Monje-Garcia, No.
18-cr-378-1, 2019 U.S. Dist. LEXIS 47323, at *7–9 (N.D. Ill. Jan. 15, 2019); United
States v. Rivera Lopez, 355 F. Supp. 3d 428, 438–39 (E.D. Va. 2018); Arroyo, 356 F.
Supp. 3d at 624–30. We agree with those courts, and conclude that § 1003.14(a) is not a
jurisdictional rule.
It is true, as Cortez emphasizes, that § 1003.14(a) refers to the vesting of
“jurisdiction,” a word that “[p]roperly used . . . refers to the ‘classes of cases . . . falling
within a court’s adjudicatory authority.’” Hyman v. City of Gastonia, 466 F.3d 284, 289
(4th Cir. 2006) (third alteration in original) (quoting Kontrick, 540 U.S. at 455). But the
term “jurisdiction” also is used “colloquially,” United States v. George, 676 F.3d 249,
259 (1st Cir. 2012), and “less than meticulous[ly],” to refer to “claim-processing rules
that do not delineate what cases . . . courts are competent to adjudicate,” Kontrick, 540
15
U.S. at 454 (holding that time limit for objection in bankruptcy proceedings is not
jurisdictional but instead a claim-processing rule). So we cannot simply assume, with the
parties, that because § 1003.14(a) refers to “jurisdiction,” it limits an immigration court’s
adjudicatory authority. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90
(1998) (“Jurisdiction . . . is a word of many, too many, meanings.” (internal quotation
marks omitted)). Indeed, the Supreme Court in recent years has cautioned against
precisely that mistake, insisting on a sharper distinction between rules that are
jurisdictional in the formal sense and even the most “emphatic” of non-jurisdictional
claim-processing rules. Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen.
Comm. of Adjustment, 558 U.S. 67, 81 (2009) (internal quotation marks omitted).
In drawing that distinction here, we find the Supreme Court’s decision in Union
Pacific particularly instructive. At issue in that case was the jurisdictional status of an
agency rule requiring that parties before an administrative tribunal – there, the National
Railroad Adjustment Board – submit proof of settlement efforts in mediation, or
“conference,” when initiating grievance proceedings. Id. at 76–80. That requirement, the
Court concluded, was not jurisdictional, in that “its satisfaction does not condition the
adjudicatory authority of the Board.” Id. at 82. In reaching that determination, the Court
emphasized two factors. First, the Board was granted by statute – not regulation – its
jurisdiction over “all” employment disputes between carriers and their employees, and
that broad grant of adjudicatory authority was not made contingent on proof of mediation
efforts. Id. at 82–83 (internal quotation marks omitted). Nor, the Court noted, had
Congress given the Board authority to adopt its own rules of “jurisdictional dimension.”
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Id. at 83–84. And second, the function of the mediation rule was to provide “instructions
on party submissions,” and such “pleading instructions,” the Court concluded, are “claim-
processing, not jurisdictional, rules.” Id. at 85.
The same factors govern here, and lead to the same result. As in Union Pacific,
the immigration courts’ adjudicatory authority over removal proceedings comes not from
the agency regulation codified at 8 C.F.R. § 1003.14(a), but from Congress: It is the INA
that “explicitly and directly grants that authority,” Arroyo, 356 F. Supp. 3d at 624
(emphasis omitted), providing that “[a]n immigration judge shall conduct proceedings for
deciding the inadmissibility or deportability of an alien,” 8 U.S.C. § 1229a(a)(1). “That
statutory grant of authority is the immigration judges’ ‘subject matter jurisdiction,’ and it
preexisted” – by decades – § 1003.14(a)’s reference to the vesting of “jurisdiction” in
immigration court. Arroyo, 356 F. Supp. 3d at 624. And nothing about that broad and
mandatory grant of adjudicatory authority, see Holland v. Pardee Coal Co., 269 F.3d
424, 431 (4th Cir. 2001) (noting “general rule that ‘shall’ is mandatory”), is made
contingent on compliance with rules governing notices to appear, whether statutory, see 8
U.S.C. § 1229(a) (statutory definition of notice to appear), or regulatory, see 8 C.F.R.
§ 1003.18(b). See Union Pac. R.R., 558 U.S. at 83 (mediation requirement is not
“moored to” statutory grant of adjudicatory authority).
Nor – again paralleling Union Pacific – is there any indication that the regulation
at 8 C.F.R. § 1003.14(a) was intended to implement some statutory provision giving the
Attorney General the authority to “adopt rules of jurisdictional dimension.” Id. at 83–84;
see also Arroyo, 356 F. Supp. 3d at 629. To deem such a regulation “jurisdictional”
17
would be “to say that the Attorney General is ‘in effect, . . . telling himself what he may
or may not do.’” Arroyo, 356 F. Supp. 3d at 629 (quoting Garcia v. Lynch, 786 F.3d 789,
797 n.2 (9th Cir. 2015) (Berzon, J., concurring)). That is not the way we generally think
of jurisdictional rules, which typically operate as “external constraints,” not “internal
rules” that can be changed at will by an agency head. Garcia, 786 F.3d at 797 n.2
(Berzon, J., concurring). Indeed, it is in part for that reason that several courts have
concluded that § 1003.14(a) cannot “properly be conceived of as jurisdictional.” Arroyo,
356 F. Supp. 3d at 629 (quoting Garcia, 786 F.3d at 797 n.2 (Berzon, J., concurring)); see
also Ortiz-Santiago, 924 F.3d at 963 (“While an agency may adopt rules and processes to
maintain order, it cannot define the scope of its power to hear cases.”); Rivera Lopez, 355
F. Supp. 3d at 439 (an agency’s “subject-matter jurisdiction” stems from “congressional
grants of authority,” not “a regulation promulgated by the agency itself”).
There is also the question of the regulation’s function. See Union Pac. R.R., 588
U.S. at 85 (describing regulation there as functioning “essentially [as] pleading
instructions”). As the Supreme Court has explained, “[a]mong the types of rules that
should not be described as jurisdictional are . . . claim-processing rules,” which “seek to
promote the orderly progress of litigation by requiring that the parties take certain
procedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 435 (2011) (internal quotation marks omitted). On its face, that is
precisely what § 1003.14(a) does, laying out the procedural steps that must be taken to
docket a case before an immigration judge: A “charging document” must be filed with
the immigration court by the government – at the time § 1003.14(a) was promulgated, by
18
the Immigration and Naturalization Service (“INS”), then an agency within the
Department of Justice – and that document must be accompanied by a certificate showing
service on the opposing party. 8 C.F.R. § 1003.14(a). 1 The text alone, in other words,
with its “emphasis on the initiation of proceedings and on service to the opposing party[,]
suggests [§ 1003.14(a)] is focused not on the immigration court’s fundamental power to
act but rather on ‘requiring that the parties take certain procedural steps at certain
specified times,’” making it a claim-processing rule rather than a “genuine jurisdictional
requirement.” Rivera Lopez, 355 F. Supp. 3d at 439 (footnote omitted) (quoting
Henderson, 562 U.S. at 435–36).
The regulation’s history confirms that reading. Before § 1003.14(a)’s predecessor
regulation was adopted in 1987, the INS had the authority both to initiate deportation
proceedings and to “terminate [those] proceedings at any time prior to the actual
commencement of the hearing.” Aliens and Nationality; Rules of Procedure for
Proceedings Before Immigration Judges, 50 Fed. Reg. 51,693, 51,693 (Dec. 19, 1985);
see also Arroyo, 356 F. Supp. 3d at 626–27. The original version of § 1003.14(a) –
promulgated as part of a “set of uniform procedural rules” for immigration courts – was
intended to give immigration courts control over their own calendars, allowing for
1
In full, § 1003.14(a) reads as follows: “Jurisdiction vests, and proceedings
before an Immigration Judge commence, when a charging document is filed with the
Immigration Court by the [INS]. The charging document must include a certificate
showing service on the opposing party pursuant to § 1003.32 which indicates the
Immigration Court in which the charging document is filed. However, no charging
document is required to be filed with the Immigration Court to commence bond
proceedings pursuant to [other sections] of this chapter.”
19
“optimal scheduling” to expedite hearings, by providing for the certainty of a filed
document – the “charging document” – and limiting the authority of the INS to “cancel”
a proceeding once a charging document had been filed. 50 Fed. Reg. at 51,693; see also
Arroyo, 356 F. Supp. 3d at 626–27 (describing regulatory history); In re G-N-C-, 22 I. &
N. Dec. 281, 284 (B.I.A. 1998) (§ 1003.14(a) “marks a clear boundary between the time
prior to commencement of proceedings, where [an INS] officer has decisive power to
cancel proceedings, and the time following commencement, where the [INS] officer
merely has the privilege to move for dismissal of proceedings”). The filing of a charging
document such as a “notice to appear,” in other words, “marks an agency internal
boundary,” Arroyo, 356 F. Supp. 3d at 628, that gives the immigration courts, rather than
the INS or the Department, “control over the docketing of cases,” id. at 627 (internal
quotation marks omitted).
We think that regulatory history makes clear, were there any doubt, that
§ 1003.14(a) is “not a grant of authority” with jurisdictional implications, but something
more like a docketing rule, providing for “the orderly administration of proceedings,
including deportation proceedings, before the immigration judges.” Id. at 628; see also
Rivera Lopez, 355 F. Supp. 3d at 439 (analogizing regulation to “a federal court’s local
rules . . . which in no way affect the federal court’s subject-matter jurisdiction”). As the
Seventh Circuit concluded, “[w]hat the [agency] was doing was establishing exactly what
20
it takes properly to commence a case before [an immigration court]. That decision is not
one of jurisdictional significance.” Ortiz-Santiago, 924 F.3d at 963. 2
2.
Our conclusion that § 1003.14(a) is not a jurisdictional rule by itself forecloses
Cortez’s attack on his 2011 removal order: Even if there were a defect in the notice to
appear that was filed with the immigration court, that court did not lack adjudicatory
authority to issue its order. But Cortez also cannot succeed in his attack for a second and
independent reason: The notice to appear in question was not in fact defective.
As previewed above, the question here boils down to whether a notice to appear
filed with an immigration court to commence proceedings under 8 C.F.R. § 1003.14(a)
must include the date and time of the noncitizen’s forthcoming removal hearing – which
Cortez’s did not. Under the regulation, proceedings are initiated with a “charging
document,” 8 C.F.R. § 1003.14(a), which in turn is defined as one of three documents,
including a “[n]otice to [a]ppear,” id. § 1003.13. According to Cortez, the required
contents of that “notice to appear” are controlled by 8 U.S.C. § 1229(a), a statutory
provision entitled “Notice to appear” that describes the “written notice [that] . . . shall be
given in person” to the noncitizen, and requires such notice to specify the “time and place
2
Cortez points to our court’s unpublished decision in Shogunle v. Holder, 336 F.
App’x 322 (4th Cir. 2009) (per curiam), to support his position that “jurisdiction” does
not vest in the immigration court until the proper notice is filed. But Shogunle simply
applied 8 C.F.R. § 1003.14(a) without deciding whether that rule uses the word
“jurisdiction” in the proper or colloquial sense. And in any event, “unpublished opinions
are not binding in this [c]ircuit.” United States v. King, 673 F.3d 274, 280 n.5 (4th Cir.
2012).
21
at which the proceedings will be held,” id. § 1229(a)(1)(G)(i). And in its recent decision
in Pereira v. Sessions, Cortez emphasizes, the Supreme Court held that a “notice to
appear” that did not include a hearing time could not qualify as a “notice to appear under
section 1229(a).” 138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)).
The government disagrees, and maintains that § 1003.14(a) is satisfied by a notice
to appear that complies with the separate regulatory definition set out in 8 C.F.R.
§ 1003.15(b)–(c). That definition specifies what information must be “provide[d] . . . to
the Immigration Court,” id. § 1003.15(c), and unlike § 1229(a), as noted above, it does
not include on its detailed list of items the date and time of a subsequent removal hearing.
Instead, date and time information must be included in a notice to appear filed under
§ 1003.14(a) only “where practicable,” id. § 1003.18(b); in other cases, the immigration
court itself is responsible for ensuring notice to a noncitizen of a hearing’s “time, place,
and date,” id. And Pereira, the government finishes, has no bearing on this matter,
because it considered only the meaning of a “notice to appear under section 1229(a),”
138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)), and did not address the
commencement of removal proceedings as governed by federal regulations.
Many courts have considered this question since Periera was decided in 2018, and
they overwhelmingly have adopted the government’s position. Our sister circuits, with
one exception, have agreed that the required contents of the notice to appear that
commences removal proceedings under 8 C.F.R. § 1003.14(a) are those set out by
regulation, not the INA. See Ali, 924 F.3d at 986; Banegas Gomez, 922 F.3d at 110–12;
Santos-Santos v. Barr, 917 F.3d 486, 489–91 (6th Cir. 2019); Karingithi, 913 F.3d at
22
1159–62; Hernandez-Perez, 911 F.3d at 310–15. But see Ortiz-Santiago, 924 F.3d at
959–63 (indicating that notice to appear without date and time violated § 1003.14(a), but
finding issue forfeited because § 1003.14(a) is nonjurisdictional). 3 And while a
“handful” of district courts have ruled for the noncitizen on this issue, “far more district
courts” have sided with the government. United States v. Gomez-Salinas, No. 2:19cr10,
2019 WL 1141063, at *5 (E.D. Va. Mar. 12, 2019).
We agree with the substantial majority of courts to address this issue, as well as
the district court here: It is the regulatory definition of “notice to appear,” and not
§ 1229(a)’s definition, that controls in determining when a case is properly docketed with
the immigration court under 8 C.F.R. § 1003.14(a). As the district court emphasized, the
regulations at 8 C.F.R. § 1003.15(b)–(c), specifying the contents of a “notice to appear”
filed to commence immigration court proceedings, do not cross-reference § 1229(a) or
otherwise incorporate that provision’s requirements. Instead, the regulations set out a
detailed and exhaustive list of their own, enumerating twelve separate items that must be
included in a notice to appear filed under § 1003.14(a) – with the time and date of a
future hearing not among them. See Santos-Santos, 917 F.3d at 490 (explaining that
regulations establish their own criteria for “notice to appear” rather than incorporating
3
Other circuit courts also have ruled for the government in unpublished decisions.
That includes our court, which has issued two per curiam opinions adopting the
government’s view. See Leonard v. Whitaker, 746 F. App’x 269, 269–70 (4th Cir. 2018);
United States v. Perez-Arellano, 756 F. App’x 291, 294 (4th Cir. 2018).
23
§ 1229(a)). 4 “If the regulations did not clearly enumerate requirements for the contents
of a notice to appear” for purposes of § 1003.14(a), “we might presume they sub silentio
incorporated § 1229(a)’s definition. But the plain, exhaustive list of requirements in the
. . . regulations renders that presumption inapplicable here.” Karingithi, 913 F.3d at 1160
(citation omitted). Indeed, reading into the regulatory list an additional requirement of
time and date information would render meaningless the regulations’ specific command
that such information must be included only “where practicable.” Id. (quoting 8 C.F.R.
§ 1003.18(b)).
Both text and structure compel the conclusion that it is this separate regulatory
definition of “notice to appear,” and not the statutory definition in § 1229(a), that
“control[s] when and how,” J.A. 17, a case is commenced before an immigration judge
for purposes of § 1003.14(a). First, the regulatory definition, codified at 8 C.F.R.
§ 1003.15, is immediately adjacent to the docketing rule, at § 1003.14, by itself a strong
indication that the regulatory definition controls. See Doe v. Cooper, 842 F.3d 833, 844
(4th Cir. 2016) (describing presumption that adjacent subsections should be read
4
Specifically, 8 C.F.R. § 1003.15(b)–(c) require that a notice to appear filed with
an immigration court to commence proceedings include the following information: the
nature of the proceedings, the legal authority under which the proceedings are conducted,
the acts or conduct of the noncitizen alleged to be in violation of law, the charges against
the noncitizen and the statutory provisions alleged to have been violated, notice that the
noncitizen may be represented by counsel, the address of the immigration court where the
notice to appear is being filed, a statement that the noncitizen must advise that
immigration court of his or her address and telephone number, the noncitizen’s name and
any known aliases, the noncitizen’s address, the noncitizen’s registration number, the
noncitizen’s alleged nationality and citizenship, and the language that the noncitizen
understands.
24
harmoniously). And the text of the regulatory definition of “notice to appear” is a
substantive match with § 1003.14(a) in a way that the statutory definition is not. Both the
regulatory provisions are concerned expressly with the contents of the Department’s
filing in the immigration court: Section 1003.14(a) provides that proceedings commence
“when a charging document is filed with the Immigration Court,” and § 1003.15
describes the information that must be provided by the government “to the Immigration
Court.” The statute, in contrast, describes what “notice” must be “given” to a noncitizen
in removal proceedings. 8 U.S.C. § 1229(a)(1) (requiring that a notice to appear “shall be
given . . . to the alien”). That concern is of course important, but it also is distinct from
the question of what information must be provided to an immigration court at a case’s
outset – a question on which § 1229(a) is silent. 5
Our reading of the statute and regulations is consistent not only with the decisions
of the many courts listed above, but also with the position taken by the Board of
Immigration Appeals. In a precedential decision issued shortly after the Supreme Court
ruled in Pereira, the Board found that it is the regulatory definition in § 1003.15(b)–(c)
that controls the required content of a “notice to appear” to initiate proceedings before an
5
Cortez suggests that the title of the statutory section in question – “Initiation of
removal proceedings,” 8 U.S.C. § 1229 – suggests that it establishes filing as well as
notice requirements. But the statutory text is clear, and clearly limited to the notice to be
provided to a noncitizen in removal proceedings, giving us no warrant to reason by
implication from the title. See Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct.
883, 893 (2018) (while section headings may “supply cues” as to congressional intent,
they “cannot limit the plain meaning of a statutory text” (internal quotation marks
omitted)).
25
immigration judge. In re Bermudez-Cota, 27 I. & N. Dec. 441, 443–45 (B.I.A. 2018).
That regulation, the Board explained, does not mandate that the document specify the
time and date of a future removal hearing. Id. at 445. Accordingly, the Board rejected a
noncitizen’s claim that his proceedings should be terminated because the notice to appear
filed with the immigration court omitted that information. Id. at 447. 6
Cortez’s contrary argument relies primarily on the Supreme Court’s decision in
Pereira, holding that the requirements of 8 U.S.C. § 1229(a) are satisfied only by a
“notice to appear” that includes date and time information for a removal hearing. But
like the district court, as well as other courts to consider the question, we think that
reliance is misplaced. See J.A. 17–18 (distinguishing Pereira); Banegas Gomez, 922
F.3d at 111 (same); Santos-Santos, 917 F.3d at 489–90 (same); Karingithi, 913 F.3d at
1160–61 (same).
6
The Board also found in Bermudez-Cota that the statutory definition in § 1229(a)
is satisfied by receipt of “proper notice of the time and place of [a removal] proceeding”
subsequent to service of a “notice to appear” initially filed with an immigration court. 27
I. & N. Dec. at 447; see also In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (B.I.A.
2019) (two-step notice satisfies the INA’s notice requirements). We recognize that there
is disagreement on this point, with the Ninth Circuit recently holding that a two-step
notice process does not comport with the statutory definition of “notice to appear” under
§ 1229(a) and thus does not trigger the “stop-time” rule that limits the period of a
noncitizen’s physical presence in the United States for purposes of cancellation of
removal relief. Lopez v. Barr, 925 F.3d 396, 405 (2019). We have no occasion to
address that issue here. Cortez argues only that the notice to appear filed in immigration
court failed to vest that court with “jurisdiction” under 8 C.F.R. § 1003.14(a); he raises
no independent claim that he received improper notice under 8 U.S.C. § 1229(a), nor any
other statutory claim.
26
At issue in Pereira was a distinct statutory question at the intersection of two INA
provisions. Under the first, providing for the so-called “stop-time” rule, the period of a
noncitizen’s continuous presence in the United States – which governs eligibility for
certain forms of relief from removal – is “deemed to end . . . when the alien is served a
notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1) (emphasis added). And
“section 1229(a)” is the by-now familiar statutory section specifying that a “notice to
appear” must include, among other information, “[t]he time and place at which [removal]
proceedings will be held.” Id. § 1229(a)(1)(G)(i). In Pereira, the Court held that
§ 1229b(d)(1)’s stop-time rule was not triggered by a notice to appear that omitted the
date and time of a removal hearing. “By expressly referencing § 1229(a),” the Court
reasoned, the stop-time provision “specifies where to look to find out what ‘notice to
appear’ means.” 138 S. Ct. at 2114. And § 1229(a), in turn, “clarifies that the type of
notice” called for under the stop-time provision, id., is one that includes “[t]he time and
place at which the [removal] proceedings will be held,” id. (alterations in original)
(quoting 8 U.S.C. § 1229(a)(1)(G)(i)).
That reasoning has no application here. As highlighted above, the regulatory
definition of “notice to appear” in § 1003.14(a), unlike the stop-time provision at 8
U.S.C. § 1229b(d)(1), does not cross-reference “a notice to appear under section
1229(a).” The “glue that bond[ed]” the stop-time rule to § 1229(a)’s requirements in
Pereira, 138 S. Ct. at 2117, in other words, is missing when it comes to § 1003.14(a)’s
docketing rule. See Banegas Gomez, 922 F.3d at 111 (“[N]o such statutory glue bonds
the Immigration Court’s [authority under § 1003.14(a)] to § 1229(a)’s requirements.”).
27
And for the reasons given above, there is nothing else to suggest that “Pereira’s
definition of a ‘notice to appear under section 1229(a)’” would “govern the meaning of
‘notice to appear’ under an unrelated regulatory provision.” Karingithi, 913 F.3d at
1161. On the contrary, Pereira stressed repeatedly that its holding was “narrow,” 138 S.
Ct. at 2110, addressing the requirements of a notice to appear only in the “context” of the
INA’s notice and stop-time provisions, id. at 2115. The filing regulations at issue in this
case were never mentioned in Pereira, and Pereira never indicated that its holding would
apply to the “distinct . . . regulations at issue here,” Santos-Santos, 917 F.3d at 489.
Cortez has one final argument: Even if not mandated by Pereira, we should read
“notice to appear” under the regulations to require the same content as a “notice to
appear” under § 1229(a), either because the agency did not intend to create a system with
two different and distinct “notices to appear,” or because whatever the agency’s intent, it
lacked authority to bypass the statutory specifications for a “notice to appear.” We
disagree.
With respect to the agency’s intent, Cortez points to regulatory history suggesting,
he says, that the definition at 8 C.F.R. § 1003.15(b)–(c) was promulgated in order to
“implement[] the language of the [INA] indicating that the time and place of the hearing
must be on the Notice to Appear,” Inspection and Expedited Removal of Aliens, 62 Fed.
Reg. 444, 449 (Jan. 3, 1997). But as described above, the definition in fact does not
include that requirement; instead, the regulations expressly reject it, providing that date
and time information is to be provided in a notice to appear filed under § 1003.14(a) only
“where practicable.” 8 C.F.R. § 1003.18(b). The regulations, that is, unambiguously do
28
create a dichotomy between the notice that must be given to a noncitizen under statutory
§ 1229(a) and the information that must be provided to an immigration court to
commence proceedings under regulatory § 1003.14(a). In light of that textual clarity, we
need not delve deeply into the tricky question of regulatory intent. See Tenn. Valley
Auth. v. Hill, 437 U.S. 153, 184 n.29 (1978) (where text is “plain and unambiguous on its
face,” courts do not look to “history as a guide to its meaning”).
Cortez’s argument fares no better when it comes to the agency’s authority.
According to Cortez, a regulatory definition for a “notice to appear” that does not
incorporate § 1229(a)’s date and time requirement conflicts with the INA and is therefore
void. But there is no conflict because, as we have explained, the regulations in question
and § 1229(a) speak to different issues – filings in the immigration court to initiate
proceedings, on the one hand, and notice to noncitizens of removal hearings, on the other
– and the INA “says nothing about” how a case is to be docketed with the immigration
court. Karingithi, 913 F.3d at 1160; see also Banegas Gomez, 922 F.3d at 110 (the INA
“does not . . . explain when or how jurisdiction vests” in immigration courts (internal
quotation marks omitted)). Because § 1003.14(a)’s docketing procedures are a product of
regulation, not dictated by statute, the agency is free to define qualifying charging
documents differently than the document described in § 1229(a) and used for other
purposes.
Accordingly, we hold that it is the regulatory definition of a “notice to appear” –
not the definition at 8 U.S.C. § 1229(a) – that controls whether the government properly
initiated an immigration proceeding under 8 C.F.R. § 1003.14(a). The notice to appear
29
filed with the immigration court in Cortez’s case conformed to that regulatory definition.
For that reason, as well, Cortez’s collateral attack on his 2011 removal order cannot
succeed.
III.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
30