FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CECILIA AGUILAR FERMIN; ENEDINO No. 18-70855
MATEO DIAZ AGUILAR,
Petitioners, Agency Nos.
A208-604-206
v. A208-604-207
WILLIAM P. BARR, Attorney
General,
Respondent.
CECILIA AGUILAR FERMIN, No. 18-73266
Petitioner,
Agency No.
v. A208-604-206
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
2 AGUILAR FERMIN V. BARR
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2020*
Pasadena, California
Filed May 5, 2020
Before: Mary M. Schroeder, Jay S. Bybee, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Bybee
SUMMARY**
Immigration
Denying Cecilia Aguilar Fermin’s petitions for review of
the Board of Immigration Appeals’ denial of asylum and
related relief, as well as the denial of her motion to reopen
seeking termination of proceedings in light of Pereira v.
Sessions, 138 S. Ct. 2105 (2018), the panel concluded that
substantial evidence supported the denial of relief, and held
that a Notice to Appear (“NTA”) lacking the time, date, and
location of a petitioner’s initial removal hearing does not
deprive the agency of jurisdiction over removal proceedings.
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AGUILAR FERMIN V. BARR 3
The panel concluded that the evidence did not compel the
conclusion that Aguilar was credible, for purposes of asylum
and withholding relief, due to inconsistencies and
implausibilities in the record. The panel also concluded that
substantial evidence supported the Board’s determination that
Aguilar could relocate in Mexico to avoid future torture.
The panel also concluded that the Board did not abuse its
discretion in denying Aguilar’s motion to reopen for
termination of proceedings, in light of the Supreme Court’s
decision in Pereira. Fermin contended that the Supreme
Court in Pereira redefined the requirements for a valid NTA
and rendered hers insufficient to vest the immigration court
with jurisdiction because it lacked the time, date, and location
of her hearing. The panel rejected Fermin’s contention,
noting that Pereira addressed the requirements for an
NTA in regards to the stop-time rule under 8 U.S.C.
§ 1229b(d)(1)(A), and not the requirements for an NTA to
vest an immigration court with jurisdiction under 8 C.F.R.
§ 1003.14. The panel observed that in Karingithi v. Whitaker,
913 F.3d 1158 (9th Cir. 2019), this court held that Pereira
simply has no application in challenges to immigration-court
jurisdiction because such jurisdiction is defined by regulation,
whereas Pereira interpreted a provision of the INA. The
panel further observed that Karingithi concluded that an NTA
need not include time and date information to satisfy the
regulations, because 8 C.F.R. § 1003.15(b) does not require
that the time and date of proceedings appear in the initial
notice, and 8 C.F.R. §1003.18(b) compels inclusion of such
information only where practicable.
The panel noted that the only difference between
Karingithi and the present case is that Aguilar’s NTA was not
only missing the time and the date, but also the location.
4 AGUILAR FERMIN V. BARR
Aguilar contended that the omission of location information
was different because 8 C.F.R. § 1003.15(b)(6) provides that
the NTA must also include the address of the immigration
court. The panel considered the Board’s recent opinion in
Matter of Rosales Vargas, 27 I. & N. Dec. 745 (B.I.A. 2020),
rejecting this argument. There, the Board pointed out that
§ 1003.14(a) vests jurisdiction when a charging document is
filed, but provides no other specifications regarding the scope
of the document, and nothing in 8 C.F.R. § 1003.15(b)(6)
mandates that the address of the immigration court is a
jurisdictional requirement or that it cannot be provided
subsequent to service of the NTA. The Board found that its
rules, including § 1003.15, were promulgated as procedural
rules and should be read in the context of other internal
docketing, procedural, and venue rules for the immigration
courts. Accordingly, the Board read § 1003.15(b)(6) in
conjunction with § 1003.18(b), which provides that if time,
place, and date information is not contained in the NTA, the
immigration court shall schedule the initial removal hearing
and provide notice to the government and the alien of the
time, place, and date of hearing. The Board thus concluded
that § 1003.18(b) anticipates that when the address of the
immigration court is not included in the NTA, the court can
provide notice of that information at a later time in a
subsequent Notice of Hearing.
The panel pointed out that in Karingithi this court also
read § 1003.15(b)(6) in conjunction with § 1003.18(b). The
panel observed that Rosales Vargas and Karingithi are
consistent, as under both decisions, an omission of some of
the information required by § 1003.14(a) and § 1003.15(b)(6)
can be cured and is not fatal. The panel stated that, as in
Karingithi, it could find nothing in Rosales Vargas to suggest
that the Board’s interpretation of its own regulation was
AGUILAR FERMIN V. BARR 5
“plainly erroneous,” “inconsistent with the regulation,” or did
“not reflect the agency’s fair and considered judgment.”
The panel acknowledged that § 1003.15(b)(6) appears to
be a clear statement that an NTA must include the address of
the immigration court, but stated that the Board has carefully
explained why that provision does not deprive an immigration
court of jurisdiction. Given that the regulations expressly
state that the omission of an address from an NTA may be
fixed by a later hearing notice, the panel concluded that it was
reasonable to construe the regulatory provisions as allowing
the immigration judge to assert jurisdiction in circumstances,
such as this, where Aguilar was provided complete notice at
a later time and appeared for her hearings. The panel held
that the Board therefore did not err in concluding that the
Immigration Court had jurisdiction over her case.
Based on the same reasoning, the panel also gave
deference to the Board’s interpretation in Rosales Vargas of
a similar provision, § 1003.14(a), which separately requires
a charging document to include a certificate of service
indicating the immigration court in which the charging
document was filed.
COUNSEL
Christopher J. Stender, Federal Immigration Counselors APC,
Phoenix, Arizona, for Petitioners.
Enitan O. Otunla, Trial Attorney; Bernard A. Joseph, Senior
Litigation Counsel; Joseph H. Hunt, Assistant Attorney
6 AGUILAR FERMIN V. BARR
General; Office of Immigration Litigation, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
BYBEE, Circuit Judge:
Petitioner Cecilia Aguilar Fermin fled Mexico after being
threatened by persons seeking to recruit her brother-in-law
into a gang. She and her minor son arrived in the United
States without documentation and were charged as
inadmissible under 8 U.S.C. § 1182(a)(7). Aguilar conceded
removability but applied for asylum, withholding of removal
(withholding), and Convention Against Torture (CAT) relief.
An immigration judge (IJ) denied Aguilar relief and ordered
her and her son removed. The Board of Immigration Affairs
(BIA) affirmed. In No. 18-70855, Aguilar now petitions for
review of that decision.1
To initiate removal proceedings, the Department of
Homeland Security (DHS) sent Aguilar a notice to appear
(NTA). The NTA did not provide Aguilar with the time,
date, or location of her removal hearing, though that
information was later provided to her and Aguilar appeared
at her hearings. Aguilar alleges that this deficiency in the
NTA rendered the immigration court without jurisdiction to
order her removed. The BIA disagreed. In No. 18-73266,
Aguilar now petitions for review of that decision as well.
1
As a derivative beneficiary of Aguilar’s application for relief before
the IJ, Aguilar’s minor son is a co-petitioner in this petition for review.
AGUILAR FERMIN V. BARR 7
Because we conclude that the decision to remove Aguilar
is supported by substantial evidence, and because we agree
with the BIA that an initial NTA need not contain time, date,
and place information to vest an immigration court with
jurisdiction if such information is provided before the
hearing, we deny both petitions.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner Cecilia Aguilar Fermin is a native and citizen
of Mexico who, until 2015, lived in El Naranjo, Guerrero,
with her minor son, sister, and brother-in-law. Her brother-
in-law previously served as a soldier in the Mexican armed
forces. Because military experience is valuable to gangs,
Aguilar’s brother-in-law began facing pressure from a gang
to join their ranks. When he refused, the gang threatened to
kill his family. In response to this threat, the family fled.
Aguilar and her son moved to the town of Palos Altos,
Guerrero, where they lived for several months. While living
in Palos Altos, Aguilar claims that she continued to receive
threats relating to her brother-in-law. For example, on one
occasion three men threatened to kill her and her son if her
brother-in-law did not join their gang. These same men also
demanded a one million peso ransom from Aguilar, though
they allegedly did so through a ransom note that provided no
instruction to Aguilar on whom to pay or how to pay it.
Aguilar reported this incident to the local police, who
conducted an investigation but ultimately made no arrests.
Aguilar then fled Palos Altos with her son and traveled to
Mexico City, where she stayed with her sister-in-law for
several weeks. She received no threats while in Mexico City.
A few weeks later she returned briefly to Palos Altos, where
8 AGUILAR FERMIN V. BARR
she claims she was again threatened. At this point, she fled
to the United States.
On December 8, 2015, Aguilar and her son arrived at the
San Ysidro port of entry without valid entry documents. Two
days later, they were served an NTA charging them as
removable under § 212(a)(7) of the Immigration and
Nationality Act (INA), which renders inadmissible all persons
who enter without appropriate documentation. See 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). The NTA did not provide a date and
time for Aguilar’s removal hearing, stating only that the
hearing would occur “at a date to be set [and] at a time to be
set.” It also did not provide the address of the immigration
court at which she was to appear, stating only that the hearing
would be “[a]t a place and time to be determined.” Three
months later, on March 14, 2016, Aguilar received a
supplemental notice providing the date, time, and location of
her hearing.
After a full hearing—in which Aguilar was the only
witness to testify—the IJ found Aguilar inadmissible as
charged and denied her petition for asylum, withholding, and
CAT relief. The IJ made an adverse credibility finding
against Aguilar based on inconsistencies and implausibilities
in her testimony. For example, the IJ noted that Aguilar
averred in her asylum application that she had been
personally threatened by the gang, even though when
questioned at the port of entry, Aguilar stated that only her
brother-in-law had received threats. Similarly, when asked
on cross-examination whether “she ever received a piece of
paper” from the gang, she replied that she had not, in spite of
the assertion in her asylum application that the gang had
given her a written ransom note for one million pesos. The
IJ found Aguilar’s explanations for these inconsistencies—the
AGUILAR FERMIN V. BARR 9
former inconsistency was because “she was nervous” and the
latter was because “she had forgotten”—unconvincing. The
IJ also found aspects of Aguilar’s testimony implausible. For
example, Aguilar claimed that the Mexican government
would not protect her from future persecution because the
local police were “in cahoots with” the gangs, yet she had
chosen to report the threats she received in Mexico to the
local police, who responded by promptly investigating her
claim. The IJ also expressed doubts about Aguilar’s claim
that she received a ransom note providing no instructions.
Based on the adverse credibility finding, the IJ denied
Aguilar’s asylum and withholding claims.2 The IJ denied
Aguilar CAT relief because (1) Aguilar failed to show that it
was more likely than not that she would be tortured upon
return to Mexico and (2) she could successfully internally
relocate. Aguilar appealed the IJ’s decision to the BIA.
Citing Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.
1994), the BIA “adopt[ed] and affirm[ed] the decision of the
Immigration Judge” in full. It concluded that “[t]he
Immigration Judge provided sufficient bases to support an
adverse credibility finding,” highlighting Aguilar’s
inconsistent testimony about receiving a ransom note. The
BIA also agreed with the IJ’s alternative holding that Aguilar
“did not establish that the threats, harassment, recruitment,
and extortion that she and her family suffered and fear in
Mexico was or will be on account of a ground protected by
2
In the alternative, the IJ also held that even if Aguilar were credible,
she was ineligible for asylum and withholding because (1) she failed to
establish a nexus between the threat of violence she suffered and her
membership in a particularized social group (PSG), (2) she failed to show
that the Mexican government was unwilling or unable to protect her, and
(3) she could internally relocate within Mexico.
10 AGUILAR FERMIN V. BARR
the” INA. The BIA affirmed the denial of CAT relief
because Aguilar’s “fear of torture in Mexico is speculative
and unsupported by adequate objective evidence.”
On June 21, 2018, several months after the BIA’s
decision, the Supreme Court decided Pereira v. Sessions, in
which it held that “[a] putative notice to appear that fails to
designate the specific time or place of the noncitizen’s
removal proceedings is not a notice to appear under
section 1229(a).” 138 S. Ct. 2105, 2113–14 (2018) (internal
quotation marks omitted). Aguilar then filed with the BIA a
motion to reopen the proceedings in her case, arguing that the
NTA she had received was inadequate under Pereira.
Although Pereira concerned the stop-time rule under 8
U.S.C. § 1229b—a provision of the INA irrelevant to
Aguilar’s petition—Aguilar argued that Pereira’s reasoning
should be extended to other provisions of immigration law.
Specifically, Aguilar argued that Pereira should be applied to
8 C.F.R. § 1003.14, which vests jurisdiction in an
immigration court upon the filing of a “charging document,”
a term defined to include an NTA. See 8 C.F.R. § 1003.13.
Thus, Aguilar claimed, because the NTA here was
insufficient to satisfy Pereira, it was insufficient to vest
jurisdiction in the immigration court, and so Aguilar’s
ordered removal was in error.
The BIA disagreed. It held that Pereira’s holding did not
extend to matters of jurisdiction. Instead, the BIA cited its
own 2018 decision in Matter of Bermudez-Cota, 27 I. & N.
Dec. 441, 442–47 (B.I.A. 2018), to conclude that an NTA
“that does not specify the time and place of an alien’s initial
removal hearing vests an Immigration Judge with jurisdiction
over the removal proceeding . . . so long as a notice of
hearing specifying this information is later sent.” Because it
AGUILAR FERMIN V. BARR 11
was “undisputed that [Aguilar] received proper notices of her
removal hearings, which provided the dates, times and
locations of [her] scheduled hearings,” the BIA concluded
that the immigration court had jurisdiction, and thus the
removal order was proper and no grounds existed to reopen
the proceedings.
Aguilar timely petitioned for review of both decisions.
II. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction over the appeal of the IJ’s
removal order under 8 C.F.R. § 1003.1(b)(3). The BIA had
jurisdiction over Aguilar’s motion to reopen proceedings
under 8 C.F.R. § 1003.2(a). This Court has jurisdiction under
8 U.S.C. § 1252.
“Where, as here, the BIA cites Burbano and also provides
its own review of the evidence and law, we review both the
IJ’s and the BIA’s decisions.” Ali v. Holder, 637 F.3d 1025,
1028 (9th Cir. 2011). “We review denials of asylum,
withholding of removal, and CAT relief for substantial
evidence and will uphold a denial supported by reasonable,
substantial, and probative evidence on the record considered
as a whole.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th
Cir. 2014) (internal quotation marks omitted). “[A]n adverse
credibility finding is conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013)
(internal quotation marks omitted).
A denial of a motion to reopen is reviewed for abuse of
discretion. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir.
2016). A decision is an abuse of discretion if it is “arbitrary,
12 AGUILAR FERMIN V. BARR
irrational, or contrary to law.” Id.; see also Koon v. United
States, 518 U.S. 81, 100 (1996) (“A[] court by definition
abuses its discretion when it makes an error of law.”). Purely
legal questions are reviewed de novo. Alali-Amin v.
Mukasey, 523 F.3d 1039, 1041 (9th Cir. 2008).
III. ANALYSIS
Aguilar appeals two decisions of the BIA: (1) the denial
of asylum, withholding, and CAT relief, and (2) the denial of
her motion to reopen proceedings. We will take each issue in
turn.
A
To establish eligibility for asylum, Aguilar must show
that she is unable or unwilling to return to Mexico “because
of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42). Aguilar bears the burden to establish
eligibility for relief. 8 C.F.R. § 208.13(a). Aguilar may
satisfy her burden with testimony alone only if her
“‘testimony is credible, is persuasive, and refers to specific
facts sufficient to demonstrate that the applicant is a
refugee.’” Ming Dai v. Sessions, 884 F.3d 858, 867 (9th Cir.
2018) (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).
Here, the IJ found that Aguilar was not credible, and the
BIA agreed. They each identified inconsistencies and
implausibilities in Aguilar’s account, some of which reach the
heart of her claim for relief. See Shrestha v. Holder, 590 F.3d
1034, 1047 (9th Cir. 2010) (“[W]hen an inconsistency is at
the heart of the claim it doubtless is of great weight.”). As is
AGUILAR FERMIN V. BARR 13
required, Aguilar was given an opportunity to explain the
inconsistencies and implausibilities in her testimony, see
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999),
superseded by statute on other grounds as stated in Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008) (per
curiam), but the IJ found her explanations, including that “she
was nervous” and “she had forgotten” certain facts, were
unconvincing.
We may only upset this adverse credibility finding if we
conclude that “any reasonable adjudicator would be
compelled” to do so. Bassene, 737 F.3d at 536 (internal
quotation marks omitted). Nothing in the record compels that
conclusion. The adverse credibility finding must stand. The
BIA did not err in affirming the IJ’s denial of Aguilar’s claim
for asylum.
Separately, to establish eligibility for withholding,
Aguilar must “demonstrate[] a ‘clear probability’ that, if [she]
returns to [her] home country, [her] ‘life or freedom would be
threatened’ on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th Cir. 1999)
(citation omitted). As with asylum, an adverse credibility
finding may be grounds to deny a petition for withholding of
removal. See, e.g., Husyev v. Mukasey, 528 F.3d 1172, 1183
(9th Cir. 2008). Thus, as with the asylum claim, the BIA did
not err in affirming the IJ’s denial of Aguilar’s claim for
withholding.
For CAT relief, Aguilar must demonstrate “that it is more
likely than not that [s]he . . . would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
Relevant to this inquiry is whether “the applicant could
14 AGUILAR FERMIN V. BARR
relocate to a part of the country of removal where . . . she is
not likely to be tortured.” Id. § 1208.16(c)(3)(ii). Though
she claims she was threatened when living elsewhere in
Mexico, Aguilar concedes that she was never threatened or
harmed when living in Mexico City, and she acknowledges
that she has family members who continue to live in Mexico
City without issue. Thus, substantial evidence supports the
conclusion that Aguilar could internally relocate within
Mexico. The BIA did not err in affirming the IJ’s denial of
Aguilar’s claim for CAT relief.
B
The BIA may grant a motion to reopen proceedings if the
petitioner presents new evidence that “is material and was not
available and could not have been discovered or presented at
the former hearing.” 8 C.F.R. § 1003.2(c)(1). Here, Aguilar
asserts that the Supreme Court’s decision in Pereira provides
grounds to reopen her case. She argues that Pereira
redefined the requirements for a valid NTA and rendered the
one issued here insufficient to vest the immigration court with
jurisdiction.
Aguilar misreads Pereira. The Court in Pereira
articulated the requirements for an NTA in regards to the
stop-time rule under 8 U.S.C. § 1229b(d)(1)(A). It did not
address the requirements for an NTA to vest an immigration
court with jurisdiction under 8 C.F.R. § 1003.14. See
Pereira, 138 S. Ct. at 2109–10. In Karingithi v. Whitaker, we
considered whether, in light of Pereira, a “notice to appear
[that] does not specify the time and date of the proceedings”
is sufficient to vest an immigration court with jurisdiction
over removal proceedings. 913 F.3d 1158, 1158 (9th Cir.
2019). We noted that immigration court jurisdiction is
AGUILAR FERMIN V. BARR 15
defined by DOJ regulation, while Pereira interpreted a
provision of the INA. Id. at 1160–61. Because the INA and
the DOJ regulation define the term “notice to appear” slightly
differently, we reasoned that case law interpreting the term in
the former context does not control in the latter. Id.
Accordingly, we held that “Pereira simply has no
application” in challenges to immigration-court jurisdiction.
Id. at 1161.
In Karingithi, we observed that “the regulation does not
require that the time and date of proceedings appear in the
initial notice.” 913 F.3d at 1160 (citing 8 C.F.R.
§ 1003.15(b)). “Rather, the regulation compels inclusion of
such information ‘where practicable.’” Id. (quoting 8 C.F.R.
§ 1003.18(b)). We concluded that “[a] notice to appear need
not include time and date information to satisfy [the
regulations].” Id. We also looked to the BIA’s published
decision in Matter of Bermudez-Cota, 27 I. & N. Dec. 441
(B.I.A. 2018), to which we owed deference unless its
interpretation of its regulation was “plainly erroneous,”
“inconsistent with the regulation,” or did “not reflect the
agency’s fair and considered judgment.” 913 F.3d at 1161
(quotation marks and citation omitted). We concluded that
“Bermudez-Cota easily meets this standard and is consistent
with our analysis.” Id.
The only difference between this case and our decision in
Karingithi is that Aguilar’s NTA was not only missing the
time and the date, but also the location. Aguilar argues that
this omission is different from omitting the time and place
because 8 C.F.R. § 1003.15(b)(6) provides that “The . . .
Notice to Appear must also include . . . [t]he address of the
Immigration Court.”
16 AGUILAR FERMIN V. BARR
The BIA has recently addressed Aguilar’s argument in a
published decision. In Matter of Rosales Vargas, 27 I. & N.
Dec. 745 (B.I.A. 2020), the BIA acknowledged that our
decision in Karingithi “[d]id not explicitly address the
specific issue raised here—whether a notice to appear that
does not include the address of the Immigration Court where
the notice to appear will be filed is sufficient to vest
jurisdiction in the court.” Id. at 748 (footnote omitted).3 The
BIA rejected the argument Aguilar makes here. It pointed out
that § 1003.14(a) vests jurisdiction in an immigration judge
“when a charging document is filed” and that sentence
“provides no other specifications regarding the scope of the
document.” Id. The BIA further observed that “nothing in 8
C.F.R. § 1003.15(b)(6) mandates that the address of the
Immigration Court is a jurisdictional requirement or that it
cannot be provided subsequent to the service of the notice to
appear.” Id. at 749.
Having concluded that compliance with § 1003.15(b)(6)
was not a condition for vesting jurisdiction in the immigration
court, the BIA considered “the consequences of omitting the
‘place’ information from the notice to appear” and “whether
termination would be the appropriate remedy.” Id. at 751.
The BIA found that its rules “including § 1003.15 were
promulgated as procedural rules for the Immigration Courts
. . . . to outline the steps needed to docket a case . . . and to
ensure the efficient administrative handling of cases.” Id.
at 752. Accordingly, § 1003.15(b) “[should not be read] in
isolation, but in the context of the other internal docketing,
3
The BIA, on the other hand, had already addressed this issue in
Matter of Bermudez-Cota, in which it concluded that an NTA lacking time
and place information was not defective so long as that information was
later provided. See 27 I. & N. Dec. at 447.
AGUILAR FERMIN V. BARR 17
procedural, and venue rules for the Immigration Courts.” Id.
at 750. The BIA quoted § 1003.12, which provides that the
rules “are promulgated to assist in the expeditious, fair, and
proper resolution of matters coming before Immigration
Judges,” id. (quoting 8 C.F.R. § 1003.12), and a summary of
an earlier version of the rules, which stated that “[t]he rules
of procedure are interrelated” and “intended to be construed
harmoniously,” id. (quoting 57 Fed. Reg. 11,568, 11,568
(Apr. 6, 1992)). The BIA thought it appropriate to read
§ 1003.15(b)(6) “in conjunction with” § 1003.18(b). That
latter section provides:
[DHS] shall provide in the Notice to Appear,
the time, place and date of the initial removal
hearing, where practicable. If that
information is not contained in the Notice to
Appear, the Immigration Court shall be
responsible for scheduling the initial removal
hearing and providing notice to the
government and the alien of the time, place,
and date of hearing.
8 C.F.R. § 1003.18(b) (emphasis added). The BIA concluded
that
the regulation anticipates that when the
address of the Immigration Court is not
included in the notice to appear, the court can
provide notice of that information at a later
time. Accordingly, we hold that a notice to
appear that does not include the address of the
18 AGUILAR FERMIN V. BARR
Immigration Court can be remedied by a
subsequent notice of hearing that includes that
information.
Rosales Vargas, 27 I. & N. Dec. at 750.
In Karingithi we also read § 1003.15(b)(6) in conjunction
with § 1003.18(b). 913 F.3d at 1160. Rosales Vargas and
Karingithi are consistent. Under both decisions, an omission
of some of the information required by § 1003.14(a) and
§ 1003.15(b)(6) can be cured and is not fatal. As in
Karingithi, we can find nothing in Rosales Vargas that
suggests that the BIA’s interpretation of its own regulation is
“plainly erroneous,” “inconsistent with the regulation,” or
does “not reflect the agency’s fair and considered judgment.”
Id. at 1161. We acknowledge that § 1003.15(b)(6) appears to
be a clear statement that a notice to appear must include the
address of the Immigration Court, but the BIA has carefully
explained why that provision does not deprive an immigration
court of jurisdiction.4 The question then, is what is the
remedy when the address is omitted from the NTA?—and the
BIA has fully explained that § 1003.18(b) supplies the
4
As Aguilar notes, § 1003.14 separately requires a charging
document to include “a certificate showing service on the opposing party
. . . which indicates the Immigration Court in which the charging
document is filed.” 8 C.F.R. §1003.14(a). For the same reasons that it
held that lack of time, date, and place information in violation of
§ 1003.15 did not strip an immigration court of jurisdiction, the BIA in
Rosales Vargas also held that “lack of compliance with this portion of
[§1003.14(a)], standing alone or read with the other regulations, does not
provide a reason for terminating proceedings.” 27 I. & N. Dec. at 753
(footnote omitted). Because nothing in this interpretation of the regulation
is “plainly erroneous,” is “inconsistent with the regulation,” or does “not
reflect the agency’s fair and considered judgment,” Karingithi, 913 F.3d
at 1161, we give deference to this holding as well.
AGUILAR FERMIN V. BARR 19
appropriate remedy: providing the alien and the government
with the complete notice at a later time. Aguilar was
provided with that notice and appeared for her scheduled
hearings. Given that the regulations expressly state that the
omission of an address from an NTA may be fixed by a later
hearing notice, it is reasonable to construe the regulatory
provisions about when jurisdiction vests as allowing the IJ to
assert jurisdiction in such circumstances.
We thus hold that there was no error in the BIA’s
determination that the lack of time, date, and place in the
NTA sent to Aguilar did not deprive the immigration court of
jurisdiction over her case. Accordingly, we conclude that the
BIA did not abuse its discretion in denying Aguilar’s motion
to reopen proceedings, and the petition for review of that
decision is denied.
IV. CONCLUSION
The petition for review of Aguilar’s asylum, withholding,
and CAT claims is denied (No. 18-70855). The petition for
review of the motion to reopen is denied as well (No. 18-
73266).
PETITIONS DENIED.