Mario Ortiz-Santiago v. William P. Barr

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3251
MARIO ORTIZ-SANTIAGO,
Petitioner,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
No. A206-788-936
____________________
ARGUED APRIL 8, 2019 — DECIDED MAY 20, 2019
____________________
Before WOOD, Chief Judge, and SCUDDER and ST. EVE, Cir-
cuit Judges.
WOOD, Chief Judge. Jurisdiction, the Supreme Court has re-
minded us, “is a word of many, too many meanings.” Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting
United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).
Petitioner Mario Ortiz-Santiago, who is seeking to avoid re-
moval from this country, now asks us to wade into those
murky waters. He contends that because the Notice to Appear
2 No. 18-3251
(“Notice”) sent to him by the Department of Homeland Secu-
rity (“DHS”) did not have the statutorily required time-and-
date information for his removal hearing, subject-matter juris-
diction never vested in the Immigration Court. This flaw, he
reasons, rendered the Notice so defective that it did not suffice
to trigger the Immigration Court’s jurisdiction over his case.
Because he never was properly placed in removal proceed-
ings, he concludes, the order of removal that the Immigration
Judge entered and the Board of Immigration Appeals af-
firmed must be vacated.
Ortiz-Santiago is correct that the Notice was procedurally
defective, but he overstates the problem. The requirement that
a Notice include, within its four corners, the time, date, and
place of the removal proceeding is not “jurisdictional” in na-
ture. It is instead the agency’s version of a claim-processing
rule, violations of which can be forfeited if an objection is not
raised in a timely manner. We thus hold, as have the Second,
Sixth, and Ninth Circuits, that an Immigration Court’s juris-
diction is secure despite the omission in a Notice of time-and-
place information. See Banegas Gomez v. Barr, — F.3d —, No.
15-3269, 2019 WL 1768914, at *6–8 (2d Cir. April 23, 2019); San-
tos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019); Karingithi v.
Whitaker, 913 F.3d 1158 (9th Cir. 2019); Hernandez-Perez v.
Whitaker, 911 F.3d 305 (6th Cir. 2018). Although we take a dif-
ferent path from those circuits to reach this conclusion, we
agree that nothing in Pereira v. Sessions, 138 S. Ct. 2105 (2018),
requires a different result. See also Villa Serrano v. Barr, — F.3d
—, No. 18-2886, 2019 WL 2052354, at *4 (7th Cir. May 9, 2019)
(noting but not deciding this issue). We therefore deny Ortiz-
Santiago’s petition for review.
No. 18-3251 3
I
Ortiz-Santiago is a Mexican citizen who has continuously
resided in the United States without legal status since 1999.
He is now about 50 years old. In October 2015, he was arrested
for driving without a license. Shortly thereafter Immigration
and Customs Enforcement served him with a document enti-
tled “Notice to Appear” for removal proceedings. See 8 U.S.C.
§ 1229(a). This Notice asserted that he is a removable nonciti-
zen because he entered the United States without being ad-
mitted or paroled. The Notice did not, however, include either
a time or date for Ortiz-Santiago’s hearing before the Immi-
gration Judge. This omission violated the Immigration and
Nationality Act. See 8 U.S.C. § 1229(a)(1)(G)(i) (requiring a
Notice to include “[t]he time and place at which the proceed-
ings will be held”). Cf. 8 C.F.R. § 1003.15(b), (c) (specifying the
contents of a Notice with no mention of time and date). The
Notice Ortiz-Santiago received said only that he should ap-
pear at the Office of the Immigration Judge in Chicago at a
date and time “to be set.” Shortly thereafter, the Immigration
Court sent Ortiz-Santiago a “Notice of Hearing,” setting his
hearing for November 12, 2015 at 10:30 a.m. More than a dec-
ade ago, we expressly approved this two-step procedure. See
Dababneh v. Gonzales, 471 F.3d 806, 809–10 (7th Cir. 2006).
During proceedings before the Immigration Judge on Au-
gust 24, 2016, Ortiz-Santiago conceded that he was subject to
removal. He nevertheless sought cancellation of removal
based on his having spent more than ten continuous years in
the United States, his good moral character, and the pur-
ported hardship that his removal would cause to his stepfa-
ther, who is a legal permanent resident. See 8 U.S.C.
§ 1229b(b). After a hearing, the Immigration Judge denied
4 No. 18-3251
cancellation, finding that Ortiz-Santiago had failed to show
the requisite hardship to his stepfather or his own good moral
character.
Ortiz-Santiago appealed that decision to the Board of Im-
migration Appeals (“the Board”). While his appeal was pend-
ing, the Supreme Court decided Pereira, which held that a No-
tice that lacked the statutorily-required time-and-date infor-
mation did not trigger the stop-time rule. 138 S. Ct. at 2118.
(That rule dictates the end-point of the non-citizen’s qualify-
ing residence in the United States for certain immigration ben-
efits.) The Court stated, without qualification, that “[a] docu-
ment that fails to include such information is not a ‘notice to
appear under section 1229(a)’ and thus does not trigger the
stop-time rule.” Id. Approximately two months after that de-
cision, but before the Board issued its decision in this case,
Ortiz-Santiago filed a motion to remand with the Board. He
took the Court at its word: no time-and-date information, he
believed, was the same as no Notice at all. See 8 C.F.R.
§ 1003.14 (stating that “jurisdiction vests … when a charging
document [including a Notice to Appear] is filed with the Im-
migration Court”). In his view, all he received was a useless
piece of paper that did not suffice to initiate anything. The
Board denied Ortiz-Santiago’s motion to remand and, on de
novo review, it affirmed the Immigration Judge’s finding that
he failed to show that his stepfather would suffer sufficient
hardship to warrant cancellation. This timely petition for re-
view, in which Ortiz-Santiago emphasizes his “jurisdictional”
argument, followed.
No. 18-3251 5
II
A
As with all questions of statutory interpretation, we start
with the statute’s text. In relevant part, 8 U.S.C.
§ 1229(a)(1)(G)(i) states that:
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 per-
son 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) speci-
fying the following: … The time and place at
which the proceedings will be held.
Neither that provision, nor any other within the Immigra-
tion and Nationality Act, says anything about when the Im-
migration Court is formally authorized to proceed with the
case. The agency thus issued implementing regulations,
which do the following: 8 C.F.R. § 1003.14 states that “juris-
diction vests” when a charging document is filed with the Im-
migration Court; 8 C.F.R. § 1003.13 defines a charging docu-
ment as one of several forms, among which is a Notice; and
8 C.F.R. § 1239.1 specifies that a Notice is the only way to
begin a removal proceeding.
But saying that “jurisdiction” vests with the Immigration
Court upon the filing of a Notice to Appear is unhelpful with-
out defining what that Notice must include in order to have
that effect. Both the statute and the regulations attempt to ad-
dress this question. As described above, 8 U.S.C. § 1229(a) de-
scribes a Notice as “written notice … given … to the alien …
specifying” various things including the government’s
6 No. 18-3251
allegations, the noncitizen’s rights and responsibilities, and
the “time and place at which the proceedings will be held.”
The relevant regulations, 8 C.F.R. §§ 1003.15 and 1003.18, pro-
vide that a Notice must contain similar information. Im-
portantly, however, neither regulation repeats the require-
ment that a Notice contain the “time and place” of the re-
moval proceedings. Instead, 8 C.F.R. § 1003.18(b) says only
that the “time, place and date” of the initial hearing be pro-
vided “where practicable.” At least in the last few years, DHS
apparently never found it “practicable” to send Notices that
contained time and date information. See Pereira, 138 S. Ct. at
2111 (noting that “almost 100 percent” of Notices from the
previous three years omitted time and date information). In-
stead, DHS sent Notices with no date or time for the initial
hearing and used a place-filler indicating that this infor-
mation was “to be set.” At some point after the Notice was
sent—sometimes the same day, sometimes months later—the
Immigration Court would send the noncitizen a “Notice of
Hearing” detailing when and where she was required to ap-
pear.
Until recently, few if any courts were troubled by this in-
consistency between the statutory and regulatory text. We
certainly were not. To the contrary, we upheld this notifica-
tion procedure against multiple attacks in the years between
1997 (the year that both the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”) and this im-
plementing regulation became effective) and now. In
Dababneh, we held that “the fact that the government fulfilled
its requirements under INA § 239(a) in two documents did
not strip the [Immigration Judge] of jurisdiction.” 471 F.3d at
810. We also held that the two-document procedure was suf-
ficient to trigger the stop-time rule that governs the end of the
No. 18-3251 7
non-citizen’s “period of continuous physical presence.” Id.,
citing 8 U.S.C. § 1229b(d)(1) (the stop-time rule). And in Yi Di
Wang v. Holder, 759 F.3d 670 (7th Cir. 2014), we held that the
Board permissibly interpreted section 1229b(d)(1) to allow the
stop-time rule to be triggered by a Notice without time-and-
place information, without regard to whether a separate No-
tice of Hearing was later sent. Id. at 674–75. We were not an
outlier in reaching this conclusion: every circuit court but one
to address the issue upheld the Board’s interpretation. See Pe-
reira, 138 S. Ct. at 2113 n.4 (collecting cases).
Much of that changed with Pereira. The question presented
to the Court in that case was the same as the one we faced in
Yi Di Wang: whether DHS’s failure to include time-and-date
information in a document labeled “Notice to Appear” would
still allow that document to trigger the stop-time rule. Pereira,
138 S. Ct. at 2110. The Court found the answer to that question
“as obvious as it seems: No.” Id. It determined that “[t]he
plain text, the statutory context, and common sense all [led]
inescapably and unambiguously to” its conclusion. Id.
The relevant statutory provisions, the Court said, were un-
ambiguous and thus not amenable to agency interpretation or
an appropriate subject for agency deference. The stop-time
rule is explicitly triggered by the service “of a notice to appear
under section 1229(a).” 8 U.S.C. § 1229b(d)(1). Section 1229(a)
then states that a “notice to appear” is “a ‘written notice ...
specifying,’ as relevant here, ‘[t]he time and place at which the
[removal] proceedings will be held.’” Pereira, 138 S. Ct. at 2114
(quoting 8 U.S.C. § 1229(a)(1)(G)(i)). Combined, the “plain
text” thus required that in order to trigger the stop-time rule
“the Government must serve a notice to appear that, at the
8 No. 18-3251
very least, ‘specif[ies]’ the ‘time and place’ of the removal pro-
ceedings.” Id.
The surrounding statutory subsections bolstered the
Court’s conclusion. Section 1229(a)(2) enables the govern-
ment to change the time and place of the noncitizen’s hearing.
But the ability to change or postpone the hearing presupposes
that the Notice had to specify a time and place in the first in-
stance. Pereira, 138 S. Ct. at 2114. A contrary interpretation, the
Court feared, would allow the government to subvert section
1229(b)(1)’s protection of the noncitizen’s ability to secure
counsel. That provision dictates that no hearing may occur
within ten days of the Notice’s service, so that the noncitizen
has time to secure counsel. But if the government could send
a Notice with no time or date for the hearing without conse-
quence, “the Government could serve a document labeled
‘notice to appear’ without listing the time and location of the
hearing and then, years down the line, provide that infor-
mation a day before the removal hearing when it becomes
available.” Pereira, 138 S. Ct. at 2114–15. This would gut sec-
tion 1229(b)(1)’s protections. The Court also appealed to com-
mon sense in support of its reading of the statute. If the words
“notice to appear” mean anything, the Court reasoned, they
must mean providing enough “notice” of the information to
allow a noncitizen “to appear” for a hearing, i.e. the time and
place of that hearing. Id.
We see two key features in Pereira’s analysis. First, Pereira
focused on one issue at the intersection of two statutory pro-
visions: the stop-time rule and section 1229(a)’s requirements
for a Notice. See id. at 2110. As the Court recognized, this is a
narrow question. It is thus not surprising that the opinion dis-
cussed only the relevance of the omission of time-and-place
No. 18-3251 9
information for purposes of the duration of residence in the
United States. See id. at 2113.
Nonetheless, Pereira is not a one-way, one-day train ticket.
The Court stated more generally that section 1229(a) speaks
“in definitional terms” when referring to time-and-place in-
formation. Id. at 2116. It worried that not including time-and-
place information would “deprive [the notice to appear] of its
essential character.” Id. at 2116–17. And it thought that “the
statute makes clear that Congress fully intended to attach sub-
stantive significance to the requirement that noncitizens be
given notice of at least the time and place of their removal
proceedings.” Id. at 2118. Ultimately, it announced 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 (emphasis added). What the
Court did not resolve, however, was what should happen if
the time and place are missing. It is to that question that we
now turn.
B
We start with the uncontroversial proposition that an
agency has no power to rewrite the text of a statute. See Chev-
ron v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842–43
(1984). If Congress has defined a term, then an implementing
regulation cannot re-define that term in a conflicting way. We
thus conclude that the Notice Ortiz-Santiago received was de-
fective. Congress defined a “Notice to Appear” as a document
containing a specific list of required information, including
“[t]he time and place at which the proceedings will be held,”
8 U.S.C. § 1229(a)(1)(G)(i), and his Notice omitted that infor-
mation. As the Supreme Court found, Congress’s language
10 No. 18-3251
was “definitional,” and time-and-place information was “un-
questionably” part of a Notice’s “essential character.” Pereira,
138 S. Ct. at 2116–17.
The government’s efforts to salvage the Notice are unper-
suasive. It wants us to find that 8 C.F.R. § 1239.1, entitled “No-
tice to Appear,” is not talking about the same “Notice to Ap-
pear” that is defined in the statute. See also 8 C.F.R.
§§ 1003.15, 1003.18 (also referring to a “Notice to Appear”).
That is absurd. The regulation itself refers to 8 U.S.C. § 1229a,
which is also the reference point for 8 U.S.C. § 1229(a)(1)(G)(i),
where we find the time-and-place requirement. If that were
not enough, the government’s position also offends one of the
most basic rules of statutory interpretation: “identical words
used in different parts of the same act are intended to have the
same meaning.” Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860
(1986).
The government also urges that it achieves substantial
compliance with the statute when it uses the two-step process,
first sending an incomplete Notice, and then filling in the
blanks for time and place in a later Notice of Hearing. The
Board adopted that position in Matter of Bermudez-Cota, 27 I.
& N. Dec. 441 (BIA 2018), in part by relying on our holding in
Dababneh. Id. at 445–47. We are not so sure. It appears to us
that Bermudez-Cota brushed too quickly over the Supreme
Court’s rationale in Pereira and tracked the dissenting opinion
rather than that of the majority.
It is also telling that Congress itself appears to have re-
jected the two-step approach when it passed IIRIRA. Before
that time, deportation proceedings began with a document
called an “Order to Show Cause.” See 8 U.S.C. § 1252b (1995).
The Order to Show Cause had to include largely the same
No. 18-3251 11
information as the later Notice to Appear, except that it did
not need to specify the time and place of the hearing. See id.
at § 1252b(a)(1). Instead, just as the Pereira dissenter and the
Bermudez-Cota decision would have it, the statute allowed the
time and place to be communicated to a non-citizen “in the
order to show cause or otherwise.” Id. (emphasis added). When
Congress enacted IIRIRA, it combined the separate provision
in section 1252b(1)(2)(A) with the other substantive require-
ments of the Order to Show Cause, and it came up with the
Notice to Appear. The “or otherwise” language disappeared.
The Board took no note of this statutory evolution in Bermu-
dez-Cota, nor did it explain how its decision complied with the
present statutory language. These omissions are troubling
enough to cause us to refrain from resolving this case with a
simple citation to Bermudez-Cota.
III
A
If we had found that the two-step procedure that the
Board followed was compatible with the statute, we could
end our opinion here. Since we do not read the law that way,
however, we must move on to Ortiz-Santiago’s contention
that the failure to comply was an error of jurisdictional signif-
icance.
The parties have assumed that the lack of time-and-place
information affects the Immigration Court’s (and by exten-
sion our) subject-matter jurisdiction. That assumption may
have been a tactical one by both parties. It allows Ortiz-Santi-
ago to take the position that his complaint about the govern-
ment’s misstep is not untimely, and it allows the government
to raise the dire possibility that adopting Ortiz-Santiago’s
12 No. 18-3251
position would cause thousands, if not millions, of removal
proceedings to be void ab initio. See, e.g., Hernandez-Perez, 911
F.3d at 314 (contemplating this latter possibility). We are not
bound by their framing of the issue, however, and so we re-
gard that characterization as a question to be resolved.
As we acknowledged at the outset, not every error is juris-
dictional. In recent years the Supreme Court has “pressed a
stricter distinction between truly jurisdictional rules, which
govern ‘a court’s adjudicatory authority,’ and nonjurisdic-
tional ‘claim-processing rules,’ which do not.” Gonzalez v. Tha-
ler, 565 U.S. 134, 141 (2012) (citing Kontrick v. Ryan, 540 U.S.
443, 454–55 (2004)). (Granted, that line of authority arose in
the context of the courts rather than agencies, but we find the
principle a useful one here as well.) Gonzalez limited jurisdic-
tional rules to those that “clearly state[] that a threshold limi-
tation on a statute’s scope shall count as jurisdictional.” 565
U.S. at 141 (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 515
(2006)).
Unlike a limitation on a court’s subject-matter jurisdiction,
a claim-processing rule is one that “seek[s] to promote the or-
derly 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). The
“quintessential” example of a claim-processing rule is a filing
deadline. United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632
(2015). Even a claim-processing rule that is “framed in man-
datory terms” does “not deprive a court of authority to hear a
case.” Id. “[I]ndeed, that is so however emphatically ex-
pressed those terms may be.” Id. (quoting Henderson, 562 U.S.
at 435) (alterations and internal quotation marks omitted).
No. 18-3251 13
Applying that analysis to the situation before us, we see a
statute (8 U.S.C. § 1229(a)(1)(G)(i)) that says nothing about the
agency’s jurisdiction. It simply sets out the information that
must be included in a Notice to Appear. That does not mean
that the statute is unimportant or can be ignored. It simply
means that an aggrieved party can forfeit any objection she
has by failing to raise it at the right time. See Kontrick, 540 U.S.
at 456–58.
The fact that the Executive Office for Immigration Review
of the Department of Justice purported to describe when “ju-
risdiction” vests in a case before an immigration court is nei-
ther here nor there. See 8 C.F.R. § 1003.14(a). While an agency
may adopt rules and processes to maintain order, it cannot
define the scope of its power to hear cases. What the Executive
Office was doing was establishing exactly what it takes
properly to commence a case before it. That decision is not
one of jurisdictional significance in the same sense that com-
plete diversity or the existence of a federal question is for a
district court. Nonetheless, when the agency creates the rules
for its adjudicatory proceedings, it must act within the limits
that Congress gave it.
A failure to comply with the statute dictating the content
of a Notice to Appear is not one of those fundamental flaws
that divests a tribunal of adjudicatory authority. Instead, just
as with every other claim-processing rule, failure to comply
with that rule may be grounds for dismissal of the case. See
generally Carlisle v. United States, 517 U.S. 416 (1996) (uphold-
ing the denial of a motion for judgment of acquittal that was
filed one day late upon the government’s objection). But such
a failure may also be waived or forfeited by the opposing
party. See Eberhart v. United States, 546 U.S. 12, 19 (2005)
14 No. 18-3251
(finding forfeiture because the government did not raise a
timeliness objection before the district court).
As our sister circuits and the Board have noted, it is telling
that the Supreme Court made no mention of jurisdiction in
Pereira. See Karingithi, 913 F.3d at 1161; Hernandez-Perez, 911
F.3d at 314; Bermudez-Cota, 27 I. & N. Dec. at 443–44. That
makes sense: there is no reason why the Court needed to do
so. And had it found a lack of jurisdiction, it would not have
remanded for further proceedings.
B
With that framework established, we turn back to Ortiz-
Santiago. Ortiz-Santiago did not raise DHS’s failure to include
the time and date of his removal hearing until his appeal of
the Immigration Judge’s decision was already pending with
the Board. In the usual case, we would have no trouble saying
that his delay resulted in the forfeiture of this point. Indeed,
Ortiz-Santiago complained about the defect in the Notice only
after Pereira was decided and he saw the possibility of wiping
out his entire immigration proceeding. The question is thus
whether Pereira was a sufficient intervening cause to excuse
an otherwise clear case of forfeiture, and if not, whether Ortiz-
Santiago’s forfeiture should be forgiven for some other rea-
son.
Generally, a party wishing to object to a violation of a
claim-processing rule must make a timely objection. See Eber-
hart, 546 U.S. at 19 (“[W]here the Government failed to raise a
defense of untimeliness until after the District Court had
reached the merits, it forfeited that defense.”); Grigsby v. Cot-
ton, 456 F.3d 727, 731 (7th Cir. 2006) (finding forfeiture where
No. 18-3251 15
the government failed to object to a habeas petitioner’s time-
liness or procedural default in the district court).
Here, Ortiz-Santiago’s objection hinged on Pereira’s inter-
pretation of section 1229(a). Before Pereira, such an objection
would have been regarded in most—though importantly not
all—courts as meritless. We had rejected the exact argument
Ortiz-Santiago sought to make about section 1229(a)’s time-
and-place information requirement and its effect on the Im-
migration Court’s jurisdiction. See Dababneh, 471 F.3d at 808–
10. Most of the other courts of appeals were in accord.
Pereira thus represented a genuine change in circum-
stances. Courts are normally obliged to apply changes in the
law that occur while they continue to have power to adjudi-
cate the case before them. In matters of equity, that duty may
extend even beyond a final judgment. See Pennsylvania v.
Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1865).
Generally speaking, the obligation to apply changes in the
law extends through a party’s direct appeal. See Henderson,
568 U.S. at 276 (citing United States v. Schooner Peggy, 5 U.S. (1
Cranch) 103 (1801)); Richardson v. United States, 379 F.3d 485,
487 (7th Cir. 2004) (“It is well-established that a court gener-
ally applies the law in effect at the time of its decision, and
that if the law changes while the case is on appeal the appel-
late court applies the new rule.”).
But that does not mean that a party may always stand si-
lent if a potential problem exists. In Ortiz-Santiago’s case,
there were signs that a meritorious argument could be raised.
He could have noted both the clear statutory text and the fact
that the Third Circuit disagreed with Dababneh’s and Yi Di
Wang’s treatment of Notices in the stop-time context. See
Orozco-Velasquez v. Attorney General[,] United States, 817 F.3d
16 No. 18-3251
78, 81–83 (3d Cir. 2016). Orozco-Velasquez, importantly, was
decided several months before the Immigration Judge issued a
merits decision in Ortiz-Santiago’s case.
We see no reason on this record to relieve Ortiz-Santiago
of this forfeiture. Cf. Freytag v. Comm’r of Internal Revenue, 501
U.S. 868, 879 (1991). This is not a case in which the Notice of
Hearing never reached him, or it came so quickly that he had
trouble preparing for the hearing, or any other discernible
prejudice occurred. And if we are considering the equities, we
must add to the scales the severity of the consequences and
the impact on the government of insisting on compliance at
this late date. (We presume that the government even now
could issue a compliant Notice to Appear and proceed with a
new case against Ortiz-Santiago; but that is cold comfort
given the resources that already have been invested in this
matter.) If Ortiz-Santiago had raised a prompt objection to the
Notice, the Immigration Judge could and should have
quashed it for noncompliance with the statute. A new, com-
pliant Notice could have issued, and the case could have pro-
ceeded. The fact that the agency’s regulations require only
that the Department of Homeland Security provide time-and-
place information “where practicable” does not, as we have
said, dilute the statutory requirements. See 8 C.F.R.
§ 1003.18(b).
The courts of appeals operate under a similar system. In
order to file a proper appeal in a federal court of appeals, the
district-court loser must lodge a notice of appeal in the district
court within a specified time, and then the district clerk must
serve a copy of the notice of appeal on all counsel of record
and unrepresented parties and send a copy to the clerk of the
court of appeals. FED. R. APP. P. 3(a), (d). The rules specify
No. 18-3251 17
what a notice of appeal must include: the name of the appeal-
ing party or parties; the judgment or order from which the
appeal is taken; and the court to which the appeal is directed.
Id., Rule 3(c)(1). But—and here is the point that is pertinent to
the present case—the rules go on to say that appeals must not
be dismissed “for informality of form or title of the notice of
appeal, or for failure to name a party whose intent to appeal
is otherwise clear from the notice.” Id., Rule 3(c)(4). Indeed,
the Supreme Court has held that even the absence of a signa-
ture on a notice of appeal does not automatically require the
court of appeals to dismiss the appeal. Becker v. Montgomery,
532 U.S. 757, 760 (2001). The lack of a signature, it said, is a
curable lapse rather than a jurisdictional flaw.
We see no reason not to apply the same approach here.
Relief will be available for those who make timely objections,
as well as those whose timing is excusable and who can show
prejudice. See, e.g., Pereira, 138 S. Ct. at 2112 (explaining that
Pereira never received his Notice of Hearing despite provid-
ing a change of address to DHS). And we urge the Depart-
ment of Homeland Security to be more scrupulous in its stat-
utory compliance: it is much easier to do things right the first
time than to do them over.
IV
Anticipating that we might uphold the Notice to Appear,
Ortiz-Santiago also asks us to remand his case to the Board
for reconsideration of his character and his showing that his
legal-permanent-resident stepfather will experience “excep-
tional and extremely unusual” hardship if Ortiz-Santiago is
removed. But on this point Congress has imposed a jurisdic-
tional bar. See 8 U.S.C. § 1252(a)(2)(B). Ortiz-Santiago’s argu-
ments for relief are attacks on the merits of the Board’s
18 No. 18-3251
reasoning; he believes that the Board did not fully appreciate
the extent of harm to his stepfather that the loss of his remit-
tances will cause. This attack on the merits raises no “consti-
tutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D),
and so we have no jurisdiction to consider it. See Stepanovic v.
Filip, 554 F.3d 673, 677–78 (7th Cir. 2009) (explaining that 8
U.S.C. § 1252(a)(2)(D) allows only review of “pure” questions
of law).
***
In order to proceed in its attempt to remove Ortiz-Santiago
from the United States, DHS should have provided him with
a statutorily compliant Notice to Appear and filed that notice
with the Immigration Court. It failed to do so when it omitted
the time and date of Ortiz-Santiago’s removal hearing from
that Notice. But this was a failure to follow a claim-processing
rule, not a jurisdictional flaw. Because Ortiz-Santiago did not
timely object to the government’s misstep and cannot show
that he was prejudiced by the noncompliant form, we DENY
his petition for review.