PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1084
GUSTAVO URBINA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 13-1465
GUSTAVO URBINA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: December 10, 2013 Decided: March 17, 2014
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Petition for review denied in part and dismissed in part by
published opinion. Judge Diaz wrote the opinion, in which Judge
Motz and Judge Agee joined.
ARGUED: Philip A. Eichorn, PHILIP EICHORN COMPANY, LPA,
Cleveland, Ohio, for Petitioner. Jennifer Paisner Williams,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Stuart F. Delery, Acting Assistant
Attorney General, David V. Bernal, Assistant Director, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
2
DIAZ, Circuit Judge:
The Immigration and Nationality Act permits the Attorney
General to cancel removal of certain aliens. See 8 U.S.C.
§ 1229b(b). Although the Attorney General has discretion in
such matters, the statute requires the alien to have “been
physically present in the United States for a continuous period
of not less than 10 years immediately preceding the date of such
application.” Id. § 1229b(b)(1)(A). In this case, Gustavo
Urbina, a native and citizen of Nicaragua, argues that he has
met that requirement and is thus statutorily eligible for
cancellation of removal. The Immigration Judge and the Board of
Immigration Appeals found otherwise. For the reasons that
follow, we deny in part and dismiss in part Urbina’s petition
for review.
I.
Urbina entered the United States on October 4, 2000, on a
tourist visa. He overstayed its expiration. In December 2009--
shortly before the statute’s ten years would accrue--the
Department of Homeland Security served Urbina with a notice to
appear, charging him with having entered the United States
without being admitted or paroled, pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i). The government apparently based that charge
on Urbina’s own representations in his 2003, 2005, and 2006
3
applications for temporary protected status, which asserted that
he had entered the country in 1998--an entry date the government
was unable to verify. The notice to appear did not specify a
date and time for the hearing, but instead noted they were “to
be set.” A.R. 184. 1
Before an Immigration Judge, Urbina admitted that he was
not an American citizen. He did not argue that he was in the
United States legally, but asserted that he had entered legally
in October 2000. Thus, he explained, the charge against him was
incorrect. The IJ asked Urbina to file a copy of his passport
showing his October 2000 entry. Urbina, in turn, requested that
the government file an I-261 form at the next hearing: this form
would swap out the original charge on the notice to appear
(illegal entry) for the factually correct charge (illegal
presence, pursuant to 8 U.S.C. § 1227(a)(1)(B)). The IJ
responded, “That’s why I’m going to have you file [a copy of the
passport], so the Government can come to court at the next
master calendar with an I-261 that you can plead to.” A.R. 99.
Urbina then filed a motion to terminate the original
charge, attaching a copy of his passport and visa. The IJ
denied the motion without a written opinion. When the parties
1
References to the “A.R.” cite to the Administrative
Record. The “S.A.R.” is the Supplemental Administrative Record.
4
next appeared before the IJ, DHS had not yet prepared the I-261
form. Counsel for the government promised to “independently
verify” Urbina’s 2000 entry and then file the amended charge.
A.R. 106. When Urbina produced an original copy of the
passport, however, the IJ was “satisfied that that’s [the
October 2000 entry] in fact what the passport says.” A.R. 106.
The IJ continued the hearing on the understanding that DHS would
most likely amend the charge.
DHS did amend the charge, alleging that Urbina was
removable as an alien who overstayed his period of authorized
presence. In response, Urbina asserted that his original notice
to appear--which stopped the accrual of the requisite ten years’
continuous physical presence, see 8 U.S.C. § 1229b(d)(1)(A)--was
invalid. Thus, he contended, only the newly substituted charge
stopped the clock, and it did so after he had reached the ten-
year mark, making him eligible for cancellation of removal.
The IJ disagreed, and the Board of Immigration Appeals
dismissed Urbina’s appeal. Urbina filed a petition for review
in this court while simultaneously filing a motion to reconsider
with the BIA. The BIA denied the motion to reconsider and
Urbina petitioned for our review of that denial. The two
petitions for review are consolidated before us.
5
II.
As he did before the IJ and the BIA, Urbina contends that
the original notice to appear was invalid and thus did not stop
the accrual of the ten-year statutory period. In the
alternative, he argues that the IJ erred in denying his motion
to terminate and in continuing the proceedings to allow DHS to
amend the charge against him. Urbina further asserts that DHS
did not have the authority to promulgate the regulation
permitting such an amendment. He also raises a procedural due
process claim and challenges the BIA’s denial of his motion to
reconsider. We consider these arguments in turn.
A.
We begin with Urbina’s argument that his original notice to
appear was invalid. Urbina concedes that a valid notice to
appear stops the accrual of continuous physical presence
required for cancellation of removal. See 8 U.S.C.
§ 1229b(d)(1)(A) (explaining that the relevant time ends “when
the alien is served a notice to appear under section 1229(a) of
this title”). Urbina argues, however, that his original notice
to appear was invalid and thus did not activate that stop-time
rule. He primarily contends that the initial notice’s incorrect
charge renders it invalid. See id. § 1229(a)(1)(D) (requiring
specification of “[t]he charges against the alien and the
statutory provisions alleged to have been violated”). He also
6
observes that the notice did not include the specific date and
time of the hearing, as required by 8 U.S.C. § 1229(a)(1)(G)(i).
See id. (“In removal proceedings under section 1229a of this
title, written notice (in this section referred to as a ‘notice
to appear’) shall be given in person to the alien . . .
specifying the following: . . . [t]he time and place at which
the proceedings will be held.”). We find Urbina’s position
unpersuasive.
After the IJ’s ruling, but before deciding Urbina’s appeal,
the BIA issued a precedent decision holding that the stop-time
rule does not require that the notice to appear include the date
and time of a hearing. See In re Camarillo, 25 I. & N. Dec. 644
(B.I.A. 2011). In that case, the BIA determined that the
relevant statutory language is ambiguous: it says only that the
stop-time rule is triggered “when the alien is served a notice
to appear under section 1229(a) of this title.” 8 U.S.C.
§ 1229b(d)(1)(A). The BIA reasoned that this provision could be
read in two ways. It might require substantive compliance with
all requirements of § 1229(a)--the reading Urbina proposes here.
Or, it could simply specify the document as a definitional
matter. 25 I. & N. Dec. at 647.
The BIA resolved that ambiguity, deciding “that the key
phrase is ‘served a notice to appear.’” Id. Thus, “the best
reading of the statute as a whole is that Congress intended the
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phrase ‘under section [1229](a)’ after ‘notice to appear’ to
specify the document the DHS must serve on the alien to trigger
the ‘stop-time’ rule.” Id. The BIA further observed that the
stop-time provision refers broadly to the entirety of § 1229(a),
which includes procedures for changing the date and time of a
hearing. See id. at 647–48; see also 8 U.S.C. § 1229(a)(2).
Finally, the BIA reasoned that the Act’s legislative
history evinced a congressional intent to prevent aliens from
accruing time that would undermine deportation proceedings
already in progress. See 25 I. & N. Dec. at 649–50. According
to the BIA, “[a] primary purpose of a notice to appear is to
inform an alien that the Government intends to have him or her
removed from the country, but the inclusion of the date and time
of the hearing is not necessary for the Government’s intention
in this regard to be conveyed.” Id. at 650.
We analyze the BIA’s interpretation in accordance with
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Under that precedent, “[i]f the
intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842–43.
If, however, “the statute is silent or ambiguous with respect to
the specific issue, the question for the court is whether the
8
agency’s answer is based on a permissible construction of the
statute.” Id. at 843.
As to the first step, we agree with the BIA that the
relevant statutory provision is ambiguous. Both the BIA’s and
Urbina’s readings are plausible in light of the text. And
because the BIA’s interpretation in Camarillo is plausible--for
the reasons the BIA gave in that case--it merits deference under
the second step. Thus, despite the missing date and time,
Urbina’s notice to appear was valid, and triggered the stop-time
rule.
We recognize that Camarillo does not directly address
whether its analysis would apply to incorrect charges as well as
missing dates and times. In a footnote, however, the BIA
suggested that “there is no reason to conclude that Congress
would have intended an alien to be able to accrue time between
service of the notice to appear and service of an I-261
[providing the “charges against the alien”], which may occur
much later and, in fact, ‘[a]t any time during the proceeding.’”
25 I. & N. Dec. at 650 n.7 (quoting 8 C.F.R. § 1240.10(e)).
We defer to this reasonable interpretation, although we
note that the notice to appear in this case substantially
9
complied with the requirements of § 1229(a). 2 This is hardly a
case, moreover, where DHS brought trumped-up charges for the
purpose of stopping the clock; indeed, DHS initially relied on
Urbina’s own statements as to when he entered the country. We
do not decide today whether a more egregious case might warrant
a different result.
We thus deny this portion of Urbina’s petition.
B.
Urbina next argues that the IJ improperly denied his motion
to terminate the removal proceedings. He believes that if the
IJ had terminated the case, rather than continuing it so DHS
could amend the charge against him, the stop-time rule would
have been triggered only by the new charge--and after the ten
years had accrued. But in asking DHS to file the I-261 form,
the IJ did precisely what Urbina had originally requested. See
A.R. 99 (“We would just be seeking then an I-261 that would
reflect the proper change.”). Moreover, Urbina did not object
to the IJ’s decision to continue the case. See A.R. 108, 110–
11. We find no abuse of discretion on these facts. See Onyeme
2
Except for the deficiencies Urbina complains of here, the
notice to appear included the elements required by § 1229(a),
such as the nature of the proceedings against Urbina, the legal
authority under which the proceedings were conducted, Urbina’s
right to be represented by counsel, and the consequences of
failure to provide current contact information. Compare 8
U.S.C. § 1229(a)(1), with J.A. 185–86.
10
v. U.S. I.N.S., 146 F.3d 227, 231 (4th Cir. 1998) (“[W]hen
reviewing the BIA’s decision upholding the IJ’s discretionary
action, we uphold the BIA’s decision unless it was made without
a rational explanation, it inexplicably departed from
established policies, or it rested on an impermissible basis,
e.g., invidious discrimination against a particular race or
group.” (internal quotation marks and alterations omitted)). We
therefore reject this claim of error.
C.
Urbina further complains that the amended charge itself is
invalid. In particular, he asserts that DHS did not have
authority to promulgate 8 C.F.R. § 1240.10(e), which permits DHS
to amend charges. See id. (“At any time during the proceeding,
additional or substituted charges of inadmissibility and/or
deportability and/or factual allegations may be lodged by [DHS]
in writing.”). Urbina reasons that the Immigration and
Nationality Act clearly provides for changes to the time and
date of proceedings on a notice to appear, see 8 U.S.C.
§ 1229(a)(2), but does not contain a similar provision for
amending charges. Thus, he contends, the regulation is invalid.
But “[b]ecause Congress expressly delegated to the Attorney
General the authority to establish such regulations as are
necessary for carrying out the INA, the challenged regulation
must be given controlling weight unless it is arbitrary,
11
capricious, or manifestly contrary to the statute.” Suisa v.
Holder, 609 F.3d 314, 319 (4th Cir. 2010) (internal quotation
marks, citations, and alterations omitted). Although the
statute is silent regarding the amendment of charges, it is
sensible to allow DHS discretion to make changes as it acquires
more information. Because the regulation is hardly arbitrary or
capricious, we deny this part of Urbina’s petition.
D.
Next, Urbina contends that the IJ violated his procedural
due process right by pretermitting his application for
cancellation of removal. This is prejudicial, he argues,
because of “open factual issues” regarding his eligibility for
relief: that is, whether the court should measure the ten years
from Urbina’s purported January 1998 entry date, rather than the
October 2000 entry. Petitioner’s Br. at 33.
Given Urbina’s earlier contention that DHS should not have
given the 1998 entry date any credence, this argument strikes us
as dubious at best. In any event, we lack jurisdiction to
review it because Urbina failed to raise the question before the
BIA. “A court may review a final order of removal only if . . .
the alien has exhausted all administrative remedies available to
the alien as of right . . . .” 8 U.S.C. § 1252(d)(1). “We have
previously interpreted [§ 1252(d)(1)] as a jurisdictional bar.”
Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008). Because
12
Urbina could have raised this claim before the BIA but chose not
to, we dismiss this part of his petition.
E.
Finally, Urbina asks that we reverse the BIA’s denial of
his motion to reconsider. We review such a denial for abuse of
discretion. See Narine v. Holder, 559 F.3d 246, 249 (4th Cir.
2009); see also Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir.
2009) (“The BIA’s denial of a motion to reopen is reviewed with
extreme deference . . . .” (internal quotation marks omitted)).
“[W]e can reverse only if the Board acted arbitrarily,
irrationally, or contrary to law.” Narine, 559 F.3d at 249
(internal quotation marks and citations omitted).
Urbina focuses on the BIA’s assertion that “the
inaccuracies in the original [notice to appear] were based upon
the respondent’s fraudulent statements in his previous sworn
applications for temporary protected status.” S.A.R. 4. Urbina
first complains that his statements were not in the record--
which is clearly incorrect. See A.R. 133, 138, 142, 146. More
colorably, he argues that the BIA overstepped its authority by
finding the statements “fraudulent,” as the IJ never made such a
finding itself.
As a result, Urbina contends, the BIA has failed to follow
its own regulations. See 8 C.F.R. § 1003.1(d)(3)(iv) (“Except
for taking administrative notice of commonly known facts such as
13
current events or the contents of official documents, the Board
will not engage in factfinding in the course of deciding
appeals.”). This failure, he argues, creates reversible error
under the Accardi doctrine. See United States ex rel. Accardi
v. Shaughnessy, 347 U.S. 260, 268 (1954) (objecting to the BIA’s
failure to follow its valid regulations).
The BIA’s decision, however, makes clear that its reliance
on Camarillo serves as the primary basis for denial of the
motion for reconsideration. Because we have determined that
deference to Camarillo is appropriate, we need not reach the
BIA’s alternative rationale regarding fraud. 3 We thus deny this
portion of Urbina’s petition.
III.
For the foregoing reasons, Urbina’s petition is
DENIED IN PART
AND DISMISSED IN PART.
3
At oral argument, the government explained that the BIA’s
characterizations of fraud would not be held against Urbina in
any future proceeding. We have every expectation that DHS and
the BIA will abide by this representation.
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