Lazaro v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DIONISIO LAZARO, 
Petitioner, No. 05-70165
v.
 Agency No.
A24-567-373
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 14, 2008—San Francisco, California

Filed June 4, 2008

Before: William C. Canby, Jr. and Milan D. Smith, Jr.,
Circuit Judges, and Stephen G. Larson,* District Judge.

Opinion by Judge Larson

*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.

6351
 LAZARO v. MUKASEY 6353

COUNSEL

James Todd Bennett, El Cerrito, California, for the petitioner.

Jeffrey J. Bernstein (argued) and Melissa Neiman-Kelting (on
the brief), Office of Immigration Litigation, Civil Division,
U.S. Department of Justice, for the respondent.
6354 LAZARO v. MUKASEY
OPINION

LARSON, District Judge:

Dionisio Lazaro, a native and citizen of the Philippines,
petitions for review of the Board of Immigration Appeals’
(“BIA”) order dismissing his appeal from an immigration
judge’s (“IJ”) removal order, which denied his application for
withholding of removal and protection under the Convention
Against Torture. We have jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D) and we review de novo questions of law. See
Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.
2006). We deny the petition for review to the extent it con-
tends that Lazaro’s Notice to Appear (“NTA”) was defective
and deprived the Immigration Court of jurisdiction to begin
his removal proceedings. As the BIA’s decision under review
contains an erroneous description of how Lazaro’s NTA was
amended in the Immigration Court, however, we grant the
petition for review in part and remand for the BIA to address
in the first instance Lazaro’s contention that the IJ acted
beyond her authority in amending his NTA sua sponte.

I

Lazaro came to the United States as an immigrant in 1984,
and worked as a physician. In 1997, he was convicted of
grand theft in violation of California Penal Code § 487(1),
and sentenced to two years imprisonment. The underlying
criminal conduct was a scheme to defraud the MediCal health
insurance program by billing for phantom patients, in which
Lazaro and others participated.

On May 14, 1998, Lazaro was served with an NTA alleging
that he was removable because of his conviction for “an
aggravated felony as defined in Section 101(a)(43) of the
[Immigration and Nationality] Act.” At a hearing before the
IJ on August 3, 1998, Lazaro’s counsel objected that the NTA
did not specify the aggravated felony subsections under which
 LAZARO v. MUKASEY 6355
Lazaro was being charged. The following exchange then took
place between the IJ and counsel for the former Immigration
and Naturalization Service (INS):1

[IJ:] Counsel for the Government, do you wish at
this time to make an addition, 101(a)(43)(G)?

[INS counsel:] [I]t’s the position of the Service that
as long as the charge is explicit in that it is an aggra-
vated felony, the specific sub[-]provision of
101(a)(43) need not be provided. However, the Ser-
vice would not oppose a motion to add a provision
that would make it more specific.

[IJ:] All right. [A]nd what provision is that? What do
you want to add then, [counsel]?

[INS counsel:] The Service would really not oppose
a motion. The Service would prefer not to . . . make
the motion itself. The Service feels that this is ade-
quate in and of itself.

[IJ:] All right. Well, I think it’s important to just be
specific, I mean, so that we’re very clear and there’s
no confusion. So do you want to put (G)[?]
[B]ecause . . . that’s what I’m going to do[.] . . . Do
you have any opposition to that?

[INS counsel:] That would be fine, Your Honor. . . .
The Service would not oppose that.

[IJ:] All right then. So it will just show
101(a)(43)(G). . . . I believe he falls under (M) as
1
On March 1, 2003, the INS ceased to exist and its functions were trans-
ferred to the newly created Department of Homeland Security. See
Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1032 n.1 (9th Cir. 2008).
For the sake of consistency, we refer to the INS in this opinion.
6356 LAZARO v. MUKASEY
well. Do you just want one or do you want both,
[counsel]?

[INS counsel:] Both would be fine.

The IJ proceeded to write in subsections (G) and (M) on
Lazaro’s NTA. Immigration and Nationality Act
§ 101(a)(43)(G), codified at 8 U.S.C. § 1101(a)(43)(G),
defines “aggravated felony” to include “a theft offense
(including receipt of stolen property) or burglary offense for
which the term of imprisonment [is] at least one year,” while
subsection (M) defines in pertinent part “an offense that . . .
involves fraud or deceit in which the loss to the victim or vic-
tims exceeds $10,000.” Lazaro’s counsel objected to the
amendment, but agreed with the IJ’s suggestion that a two-
week recess be taken for him to review the amended NTA.

Two weeks later, the matter was held over for a month to
allow the government to produce certified conviction docu-
ments. At a hearing on September 16, 1998, Lazaro’s counsel
moved to terminate proceedings. The IJ denied the motion to
terminate, stating that “the Court has always made it a process
of being able to amend a document and interlineate a charge
and here that’s basically what happened. The respondent was
charged as an aggravated felon and there was a general
(a)(43) charge and . . . the Service made a more specific
charge with regard to 101(a)(43) . . . . The Court . . . [has] his-
torically interlineated, or had the Service to interlineate and
change various charges where appropriate.” Counsel repre-
sented that Lazaro did not wish to apply for relief, and the IJ
ordered Lazaro removed to the Philippines “on the charges as
set forth in the Notice to Appear.”

On appeal, the BIA remanded the case to the IJ to prepare
a full decision. Lazaro then applied for relief based on his
alleged fear of persecution in the Philippines by his former
employer in the United States, Dr. Michael Natividad, as
retaliation for the MediCal fraud investigation that led Nativi-
 LAZARO v. MUKASEY 6357
dad to flee to the Philippines to avoid criminal charges. The
IJ denied relief and again ordered Lazaro removed “on the
charges as set forth in the charging document.”

Lazaro appealed to the BIA, including as one of his argu-
ments that “the Immigration Judge acted in excess of jurisdic-
tion” with respect to the NTA. Lazaro incorporated the
contention in his prior brief to the BIA that “under the regula-
tions enacted by the Attorney General, the Service was per-
mitted to lodge in writing amendments to the charging
documents . . . . No where, however, is the Immigration Judge
permitted to do so on her own accord. . . . Accordingly, the
amendment of the NTA by the Immigration Judge was in
excess of jurisdiction and void ab initio.”

The BIA dismissed Lazaro’s appeal in the decision we are
reviewing. The BIA’s order states in part that “[t]he Notice of
Appeal [sic] was amended by the Department of Homeland
Security . . . on August 3, 1998, at the master calendar hearing
over the objection of the respondent.” The BIA concluded that
the NTA informed Lazaro “that he was removable as an
aggravated felon because of his 1997 conviction for gran[d]
theft. Based upon this information, we find that he was pro-
vided sufficient detail to understand the basis for the charges
of removability.” Moreover, the BIA stated, Lazaro “has not
demonstrated any prejudice to himself as a result of failure to
specify the subsection of the aggravated felony provision in
the Notice to Appear. After the Notice to Appear was
amended, he had notice of the provisions at issue and time to
prepare his defense. [He] also was given timely notice of the
hearing and he and his attorney subsequently appeared.”

II

[1] Lazaro contends that the Immigration Court lacked
jurisdiction over his case due to “non-compliance with 8
U.S.C. § 1229(a)(1)(D).” Section 1229(a)(1)(D), contained in
a section titled “Initiation of Removal Proceedings,” requires
6358 LAZARO v. MUKASEY
the NTA to include “[t]he charges against the alien and the
statutory provisions alleged to have been violated.” In this
case, the NTA states that Lazaro is “subject to removal from
the United States pursuant to [§] 237(a)(2)(A)(iii)” for com-
mitting “an aggravated felony as defined in Section
101(a)(43) of the [Immigration and Nationality] Act.” The
NTA also alleges in its recitation of facts that Lazaro was “on
5/1/97, convicted in the Superior Court of California . . . for
the offense of Grand Theft property, in violation of Section
487(1) of the California Penal Code.”

The Immigration Court’s jurisdiction vests “when a charg-
ing document is filed with the Immigration Court by the Ser-
vice.” 8 C.F.R. § 1003.14. A petitioner is entitled to relief
from a defective NTA if he “show[s] that the Immigration
Court lacked jurisdiction.” Kohli v. Gonzales, 473 F.3d 1061,
1067 (9th Cir. 2007). The petitioner in Kohli alleged that the
absence of a legible name and title of her NTA’s issuing offi-
cer deprived the IJ of jurisdiction over her case. Id. We
rejected this argument, explaining that the NTA “fully
informed Kohli of the charges against her” and that “Kohli
has not shown that any statute or regulation requires the inclu-
sion of the name and title of the issuing officer on the NTA.”
Id. at 1067-68.

[2] In Lazaro’s case, although the NTA failed fully to spec-
ify “the statutory provisions alleged to be violated,” 8 U.S.C.
§ 1229(a)(1)(D), by not including any aggravated felony sub-
sections, we conclude that the Immigration Court did not lack
jurisdiction as a result. Lazaro’s charging document satisfied,
albeit minimally, § 1229(a)(1)(D)’s requirements by specify-
ing that Lazaro was removable as an aggravated felon pursu-
ant to identified provisions of the Immigration and Nationality
Act, as well as his underlying criminal conviction.

[3] The INS filed the NTA with the Immigration Court in
accordance with 8 C.F.R. § 1003.14(a). Jurisdiction therefore
vested, and the IJ did not err in proceeding with Lazaro’s
 LAZARO v. MUKASEY 6359
case. See Kohli, 473 F.3d at 1068 (“The government met its
burden of establishing jurisdiction in the Immigration Court
by issuing a NTA pursuant to 8 U.S.C. § 1229(a)(1), and then
filing that notice to appear with the Immigration Court.”)
(citations omitted).2

III

[4] The BIA’s decision does not address Lazaro’s addi-
tional contention that, even if the IJ had jurisdiction to com-
mence his removal proceedings, she was not authorized to
amend his NTA sua sponte. Instead, the BIA apparently pro-
ceeded on the understanding that these amendments were
made by the INS. The record excerpts reproduced above make
clear, however, that the INS did not amend Lazaro’s NTA, or
provide an answer to the IJ’s inquiry about what aggravated
felony subsections the INS wished to apply to Lazaro, but
rather acquiesced in the IJ’s own amendments. The INS’s
stated position in declining the IJ’s invitation for the govern-
ment to move to amend the NTA was that the NTA was “ade-
quate in and of itself,” without specification of any aggravated
felony subsections.

In this court, there is no dispute about how Lazaro’s NTA
was amended. The Attorney General’s brief repeatedly
acknowledges “the immigration judge’s amendment of the
NTA,” and, in response to Lazaro’s argument that this was
improper, cites 8 C.F.R. § 1240.2(a) as supporting an IJ’s
general authority to conduct proceedings.3 Lazaro counters by
citing 8 C.F.R. § 1240.10(e), which states:
2
We need not decide whether, had the IJ and the INS proceeded without
amending Lazaro’s NTA, the NTA would have impermissibly “obscured
the charges against [him] or obstructed [his] ability to respond to the
charges.” Kohli, 473 F.3d at 1068.
3
8 C.F.R. § 1240.2(a) states, inter alia, that “[n]othing contained in this
subpart diminishes the authority of an immigration judge to conduct pro-
ceedings under this part.”
6360 LAZARO v. MUKASEY
Additional charges in removal hearings. At any
time during the proceeding, additional or substituted
charges of inadmissibility and/or deportability and/or
factual allegations may be lodged by the Service in
writing. The alien in removal proceedings shall be
served with a copy of these additional charges and
allegations. The immigration judge shall read the
additional factual allegations and charges to the alien
and explain them to him or her. The immigration
judge shall advise the alien, if he or she is not repre-
sented by counsel, that the alien may be so repre-
sented, and that he or she may be given a reasonable
continuance to respond to the additional factual alle-
gations and charges. Thereafter, the provision of
§ 1240.6(b) relating to pleading shall apply to the
additional factual allegations and charges.

8 C.F.R. § 1240.10(e).4

[5] To our knowledge, the BIA has not addressed either the
relationship between the regulatory provisions cited by
Lazaro and the Attorney General, or, more generally, whether
the Immigration and Nationality Act and the agency’s regula-
tions permit an IJ to amend an NTA sua sponte. If the IJ’s
amendment of Lazaro’s NTA was ultra vires, he is not
required to show prejudice to the outcome of his proceedings
for relief to be granted. Cf. Noriega-Lopez v. Ashcroft, 335
F.3d 874, 884 (9th Cir. 2003) (“Unlike a claimed due process
violation, a component of which is to show prejudice, the
BIA’s lack of authority to enter Noriega-Lopez’s removal
order renders that component of his proceedings in essence,
a legal nullity.” (internal quotation marks and citations omit-
ted)). In this context, we conclude that a remand to the BIA
4
8 C.F.R. § 240.10(e) (1998), the regulation in effect at the time of
Lazaro’s 1998 removal hearings, was identical in all pertinent respects.
See also 8 C.F.R. § 240.2(a) (1998) (equivalent and identical regulation to
8 C.F.R. § 1240.2(a), cited by the Attorney General).
 LAZARO v. MUKASEY 6361
is appropriate for the Board to consider Lazaro’s argument
regarding the IJ’s amendment of his NTA in the first instance.
See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per
curiam) (“Generally speaking, a court of appeals should
remand a case to an agency for decision of a matter that stat-
utes place primarily in agency hands.”).

In light of our disposition, we need not address Lazaro’s
remaining contentions. The parties shall bear their own costs.

PETITION FOR REVIEW DENIED in part;
GRANTED in part; REMANDED.