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.

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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

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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.

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 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,

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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

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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

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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

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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