Cite as 28 I&N Dec. 223 (BIA 2021) Interim Decision #4008
Matter of Cecilia Mabel VIERA-GARCIA, Respondent
Matter of Odin Isaac ORDONEZ-VIERA, Respondent
Decided January 26, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where a notice to appear fails to specify the time or place of a respondent’s initial
removal hearing, the subsequent service of a notice of hearing specifying this information
perfects the notice to appear and ends the accrual of physical presence for purposes of
voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b)
of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2018).
FOR RESPONDENT: Christopher R. Carlston, Esquire, Dallas, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Joshua S. Levy, Assistant
Chief Counsel
BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges;
DONOVAN, Temporary Appellate Immigration Judge.
WILSON, Appellate Immigration Judge:
In a decision dated July 25, 2018, an Immigration Judge denied the
respondents’ request for voluntary departure at the conclusion of their
removal proceedings pursuant to section 240B(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229c(b) (2018). The appeal will be sustained,
and the record will be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondents are a mother and son who are natives and citizens of
El Salvador. The female respondent credibly testified that her mother paid
$10,000 to a smuggler to help them enter the United States. The respondents
arrived in this country on or about May 1, 2014, without being admitted or
paroled. On May 3, 2014, they were served with notices to appear, ordering
them to appear before an Immigration Judge in Harlingen, Texas, at a time
and date “to be set.”
On May 4, 2015, notices of hearing were served on both of the
respondents, providing them with the date, time, and place of their first
removal hearing. At that hearing, the respondents orally requested voluntary
223
Cite as 28 I&N Dec. 223 (BIA 2021) Interim Decision #4008
departure at the conclusion of their proceedings. 1 In light of the Supreme
Court’s holding in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the
respondents argued that their notices to appear, which failed to specify the
date and time of their hearing, were not “notices to appear” under section
239(a) of the Act, 8 U.S.C. § 1229(a) (2012), and thus did not end their period
of physical presence for purposes of voluntary departure under section
240B(b) of the Act.
The Immigration Judge determined that Pereira’s holding was explicitly
limited to the application of the so-called “stop-time” rule in section
240A(d)(1) of the Act, 8 U.S.C. § 1229b(d)(1) (2012), which terminates the
period of continuous physical presence for purposes of cancellation of
removal under section 240A of the Act. Noting that the “stop-time” rule does
not extend to requests for voluntary departure under section 240B(b) of the
Act, the Immigration Judge denied voluntary departure after finding that the
respondents were not physically present in the United States for a period of
at least one year immediately preceding the date they were served with
notices to appear. See section 240B(b)(1)(A) of the Act. In the alternative,
the Immigration Judge denied the respondents’ request for voluntary
departure as untimely and in the exercise of discretion.
II. ANALYSIS
To be eligible for voluntary departure under section 240B(b) of the Act,
a respondent must demonstrate, among other things, that he or she “has been
physically present in the United States for a period of at least one year
immediately preceding the date the notice to appear was served under section
239(a) [of the Act].” Section 240B(b)(1)(A) of the Act. In turn, section
239(a)(1)(G)(i) of the Act requires that a “notice to appear” specify “the time
and place at which” the initial removal hearing “will be held.”
The issue in this case is whether a notice to appear that does not specify
the time or place of the initial removal hearing, as required by section
239(a)(1)(G)(i) of the Act, can end the accrual of physical presence for
purposes of section 240B(b)(1)(A) of the Act. This is a legal question which
we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).
In Pereira, 138 S. Ct. at 2114, the Supreme Court discussed the “narrow
question” of whether service of a “notice to appear” that “fails to designate
the specific time or place” of a removal hearing triggers the “stop-time” rule
under section 240A(d)(1)(A) of the Act. That provision states, in pertinent
part, that, for purposes of cancellation of removal, “any period of continuous
1
The respondent also filed applications for relief from removal, which the Immigration
Judge denied. Because the respondents are not challenging the Immigration Judge’s
decision to deny these applications for relief, we will not address them further.
224
Cite as 28 I&N Dec. 223 (BIA 2021) Interim Decision #4008
. . . physical presence in the United States shall be deemed to end . . . when
the alien is served a notice to appear under section 239(a) [of the Act].”
Section 240A(d)(1)(A) of the Act. The Supreme Court concluded that, under
the plain language of the Act, a notice to appear that fails to specify the time
and place of a removal hearing does not end the period of continuous physical
presence under section 240A(d)(1) of the Act. Pereira, 138 S. Ct. at 2110.
The Court explained that “the Government has to provide noncitizens
‘notice’ of . . . the ‘time’ and ‘place[]’ [to] enable them ‘to appear’ at the
removal hearing in the first place,” and thus a notice to appear under section
239(a) of the Act must specify this information. Id. at 2115.
After Pereira, we have considered arguments that the Supreme Court’s
holding applies to cases that do not involve the “stop-time” rule, but we have
declined to expand the Court’s narrow holding. In so doing, we have
distinguished Pereira, recognizing that the primary issue we must consider
is when a respondent receives notice of the time and place of his or her
removal proceedings. Id. (“[C]ommon sense compels the conclusion that a
notice that does not specify when and where to appear for a removal
proceedings is not a ‘notice to appear’ . . . .”).
For instance, in Matter of Bermudez-Cota, 27 I&N Dec. 441, 447 (BIA
2018), we concluded that, where the notice to appear does not specify the
time or place of an alien’s initial removal hearing, the statutory notice
requirement in section 239(a) of the Act can be sufficiently met with a
“two-step notice process.” The first step, of course, is service of the notice
to appear. As to the second step, we determined that a deficient notice to
appear that fails to specify the time or place of the hearing is perfected when
a subsequent notice of hearing specifying this information is sent to the
respondent.
Following Bermudez-Cota, we issued Matter of Mendoza-Hernandez and
Capula-Cortes, 27 I&N Dec. 520, 529 (BIA 2019), in which we continued
to rely on the two-step notice process to comply with the statutory
requirements of section 239(a) of the Act. In that case, we concluded that,
“where a notice to appear does not specify the time or place of an alien’s
initial removal hearing, the subsequent service of a notice of hearing
containing that information perfects the deficient notice to appear . . . and
ends the alien’s period” of continuous physical presence pursuant to the
“stop-time” rule at section 240A(d)(1) of the Act. Id.; see also Yanez-Pena
v. Barr, 952 F.3d 239, 246 (5th Cir. 2020) (deferring to our holding in
Mendoza-Hernandez and Capula-Cortes).
Under section 240B(b)(1)(A) of the Act, the accrual of physical presence
is deemed to end when a “notice to appear was served under section 239(a).”
Consistent with our holdings in Bermudez-Cota and Mendoza-Hernandez
and Capula-Cortes, we conclude that a notice to appear that fails to specify
225
Cite as 28 I&N Dec. 223 (BIA 2021) Interim Decision #4008
the time or place of the removal hearing, as required by section 239(a) of the
Act, cannot, by itself, end the period of physical presence for purposes of
section 240B(b)(1)(A) of the Act. However, consistent with these holdings,
a two-step notice process applies to determining when a deficient notice to
appear has been perfected, and thus ends the period of physical presence
described in section 240B(b)(1)(A) of Act. Therefore, where a notice to
appear fails to specify the time or place of a respondent’s initial removal
hearing, the subsequent service of a notice of hearing specifying this
information perfects the notice to appear, satisfies the notice requirements
under section 239(a) of the Act, and ends the accrual of physical presence for
purposes of voluntary departure at the conclusion of removal proceedings
pursuant to section 240B(b) of the Act. 2
The respondents were served with putative notices to appear on May 3,
2014. Although these notices to appear specified the place of their hearing,
they did not specify the date and time of their hearing as required by section
239(a) of the Act. They were therefore deficient and did not, on their own,
end the respondents’ accrual of physical presence under section
240B(b)(1)(A) of the Act. In light of the foregoing, and consistent with
Bermudez-Cota and Mendoza-Hernandez and Capula-Cortes, we must look
to the date they were served with notices of hearing to determine when the
respondents stopped accruing physical presence for purposes of voluntary
departure under section 240B(b) of the Act.
On May 4, 2015, notices of hearing, specifying the time and place of their
removal proceedings, were served on the respondents. Thus, the respondent
stopped accruing continuous physical presence for purposes of section
240A(b)(1)(A) of the Act on May 4, 2015. Because the respondents entered
the United States on May 1, 2014, they have demonstrated that they were
physically present in the United States for a period of at least one year
pursuant to section 240B(b)(1)(A) of the Act. We will therefore reverse the
Immigration Judge’s conclusion that the respondents did not demonstrate the
requisite period of physical presence for purposes of voluntary departure
under section 240B(b) of the Act.
The Immigration Judge also erred in determining that the respondents’
request for voluntary departure was untimely. In his decision, the
Immigration Judge states that he set a deadline for all forms of relief and that
2
We recognize that the United States Court of Appeals for the Third Circuit and Tenth
Circuit have not adopted the two-step notice process we outlined in Mendoza-Hernandez
and Capula-Cortes. See Banuelos v. Barr, 953 F.3d 1176, 1178–79 (10th Cir. 2020);
Guadalupe v. Att’y Gen. U.S., 951 F.3d 161, 165 (3d Cir. 2020). In those circuits only, a
notice to appear must comply with all the statutory requirements of section 239(a) of the
Act before its service will end the period of physical presence under section 240B(b)(1)(A)
of the Act.
226
Cite as 28 I&N Dec. 223 (BIA 2021) Interim Decision #4008
the respondents requested voluntary departure after this deadline had passed.
However, a review of the record indicates that the Immigration Judge did not
set such a deadline. Therefore, the Immigration Judge erred when he found
that the respondents’ request for voluntary departure at the conclusion of
their proceedings was untimely.
We will also reverse the Immigration Judge’s decision to deny the
respondents’ request for voluntary departure in the exercise of discretion.
The Immigration Judge determined that the respondents did not merit
voluntary departure in the exercise of discretion after considering both
positive and negative factors. One negative factor the Immigration Judge
cited was that the female respondent paid a smuggler $10,000 to help her and
her son enter the United States. However, the female respondent credibly
testified that she did not pay the smuggler. Instead, her mother paid and
arranged for the smuggler to bring the respondents to this country. Thus, the
Immigration Judge’s discretionary analysis is premised on a factual error.
The significance of this factual error to the discretionary analysis may
depend on the respondents’ knowledge of and involvement in the smuggling
scheme. Thus, in light of the Immigration Judge’s factual error, we will
remand the record for the Immigration Judge to make further findings and
render a new decision as to whether the respondents merit voluntary
departure in the exercise of discretion. If the Immigration Judge makes a
positive discretionary finding, he should also assess whether the respondents
have satisfied the other statutory requirements for voluntary departure under
sections 240B(b)(1)(B) through (D) of the Act. On remand, the Immigration
Judge should allow both parties to submit arguments and evidence
concerning the respondents’ eligibility for relief. Accordingly, the
respondents’ appeal is sustained, and the record is remanded for further
proceedings.
ORDER: The respondents’ appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
227