FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VARINDER SINGH, No. 20-70050
Petitioner,
Agency No.
v. A209-393-493
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 17, 2021
San Francisco, California
Filed February 4, 2022
Before: M. Margaret McKeown and Ronald M. Gould,
Circuit Judges, and Donald W. Molloy, * District Judge.
Opinion by Judge Gould
*
The Honorable Donald W. Molloy, United States District Judge
for the District of Montana, sitting by designation.
2 SINGH V. GARLAND
SUMMARY **
Immigration
Granting Varinder Singh’s petition for review of a
decision of the Board of Immigration Appeals, and
remanding, the panel held that noncitizens must receive a
Notice to Appear in a single document specifying the time
and date of the noncitizen’s removal proceedings, otherwise
any in absentia removal order directed at the noncitizen is
subject to rescission pursuant to 8 U.S.C.
§ 1229a(b)(5)(C)(ii).
Under § 1229a(b)(5)(C)(ii), an in absentia notice may be
rescinded through a motion to reopen filed at any time if the
noncitizen can show that they “did not receive notice in
accordance with paragraph (1) or (2) of section 1229(a).”
Section 1229(a), entitled, “Notice to Appear,” delineates the
requirements that apply to such notice. Paragraph (1)
defines the “notice to appear” and requires it specify certain
information, including the “time and place at which the
proceedings will be held.” Paragraph (2), entitled “Notice
of change in time or place of proceedings,” explains what
information must be provided if the government changes the
time or place of the removal proceedings.
In seeking rescission of his in absentia removal order,
Singh relied on Pereira v. Sessions, 138 S. Ct. 2105 (2018),
in which the Supreme Court held that a Notice to Appear that
does not specify the time and date of removal proceedings
does not trigger the “stop-time rule” for purposes of
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SINGH V. GARLAND 3
cancellation of removal. Singh contended that he did not
receive the statutorily required notice under § 1229(a)
because his Notice to Appear did not provide the date and
time of his hearing. In affirming the denial of his motion to
reopen, the BIA relied on Matter of Pena-Mejia, 27 I. & N.
Dec. 546 (BIA 2019), in which the BIA had limited Pereira
to the stop-time rule context and held that rescission of an in
absentia removal order is not required where the government
provides the time and date of the hearing in a subsequent
hearing notice, even if it is not provided in the Notice to
Appear.
The panel disagreed that the omission of the time or date
of a removal hearing could be cured by a subsequent hearing
notice, concluding that this interpretation contravenes the
unambiguous statutory text and the Supreme Court’s
decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
In Niz-Chavez, the Supreme Court rejected this two-step
practice, interpreting § 1229(a) to require a “single
statutorily compliant document” to trigger the stop-time rule
and concluding that a subsequent hearing notice could not
cure a defective Notice to Appear. The panel explained that
the reasoning in Niz-Chavez made clear that the government
must provide all statutorily required information in a single
Notice to Appear, not only to trigger the stop-time rule, but
for all removal proceedings that require notice pursuant to
§ 1229(a). Therefore, the panel joined the Fifth Circuit in
holding that the Supreme Court’s separate interpretation of
the § 1229(a) notice requirements in Niz-Chavez applies in
the in absentia context. The panel also explained that its
view was supported by the fact that the statutory provisions
governing in absentia removal orders explicitly incorporate
§ 1229(a) by reference, just like the statutory provision
governing the stop-time rule.
4 SINGH V. GARLAND
The government contended that because
§ 1229a(b)(5)(A) is written in the disjunctive and allows for
in absentia removal if a noncitizen received notice in
accordance with paragraph (1) “or” (2) of § 1229(a), the
government should be permitted to follow the two-step
notice process in this context. The panel noted that the BIA
had recently adopted that argument in Matter of Laparra,
28 I. & N. Dec. 425 (BIA 2022). Looking to the plain text,
the statutory structure, and common sense, the panel
concluded that the “or” in the in absentia provisions
accounts for situations in which the government needs to
change or postpone a noncitizen’s removal hearing; it does
not provide a textual backdoor to circumvent the written-
notice requirements enumerated in paragraph (1).
Because the government did not provide Singh with
statutorily compliant notice before his removal hearing, the
panel concluded that Singh’s in absentia removal order is
subject to recission pursuant to 8 U.S.C.
§ 1229a(b)(5)(C)(ii). The panel noted that it did not reach
Singh’s argument that his order should be rescinded due to
exceptional circumstances.
COUNSEL
Saad Ahmad (argued), Saad Ahmad & Associates, Fremont,
California, for Petitioner.
William C. Minick (argued), Attorney; Linda S. Wernery,
Assistant Director; United States Department of Justice,
Civil Division, Office of Immigration Litigation,
Washington, D.C.; for Respondent.
SINGH V. GARLAND 5
OPINION
GOULD, Circuit Judge:
This appeal requires us to decide what notice must be
given to noncitizens before the government can order them
removed in absentia.
The Immigration & Nationality Act provides for two
ways in which an in absentia removal order can be
rescinded. The first is through a motion to reopen filed
within 180 days after the date of the order of removal if the
noncitizen can show that their failure to appear was due to
“exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i).
The second is through a motion to reopen “filed at any time”
if the noncitizen can show that they “did not receive notice
in accordance with paragraph (1) or (2) of section 1229(a) of
this title.” § 1229a(b)(5)(C)(ii).
Petitioner Varinder Singh seeks rescission of his removal
order, entered in absentia, under both ways to gain this
relief. First, he contends that he did not receive proper notice
under § 1229(a) pursuant to Pereira v. Sessions, 138 S. Ct.
2105 (2018). Second, he argues that “exceptional
circumstances” were present in his case. 1 The Board of
Immigration Appeals (“BIA”) affirmed the Immigration
Judge’s denial of his motion to reopen and rejected both of
his arguments. Because the decisions of the Immigration
Judge and BIA rested on a legally erroneous interpretation
of § 1229(a), we grant relief based on Singh’s first argument.
1
Singh’s motion to reopen was filed within the 180-day window
required by 8 U.S.C. § 1229a(b)(5)(C)(i).
6 SINGH V. GARLAND
BACKGROUND
Singh is a native and citizen of India who entered the
United States without inspection in 2016. The Department
of Homeland Security (“DHS”) began removal proceedings
against him and served him with a Notice to Appear. The
Notice to Appear did not provide a date or time for Singh’s
removal hearing, instead stating that the date and time were
“TBD.”
DHS released Singh after he posted a bond that was paid
for by a family friend. Singh then traveled to Indiana to live
at one of the family friend’s homes but provided the
immigration court with the address of one of the friend’s
other residences because it was the more reliable mailing
address. Unfortunately for Singh, the immigration court sent
multiple hearing notices to the address, but his friend did not
forward them to Singh until 2019. After Singh did not
appear at his December 2018 removal hearing, an
Immigration Judge ordered him removed in absentia. Once
Singh learned of the hearing notices and in absentia removal
order, he filed a motion to reopen and rescind the order.
Singh first argued that the in absentia order was invalid
because the Notice to Appear that he received lacked time
and date information. Relying on Pereira v. Sessions, 138
S. Ct. 2105 (2018), Singh contended that he did not receive
the statutorily required notice under § 1229(a) because the
Notice to Appear that he received did not provide the date
and time of his removal hearing. Second, Singh argued in
the alternative that even if he received proper notice, the in
absentia order should be rescinded because “exceptional
circumstances” were present in his case.
The Immigration Judge denied the motion, reasoning
that any defect in Singh’s initial Notice to Appear due to the
SINGH V. GARLAND 7
absence of time-and-date information was cured by the
subsequent hearing notices. As to Singh’s notice argument,
the Immigration Judge concluded that Pereira was limited
to the “narrow question” of whether a document labeled
“Notice to Appear” that fails to specify the time or date of
the removal proceedings nonetheless triggers the stop-time
rule, which relates to a petitioner’s eligibility for
cancellation of removal. Further, the Immigration Judge
emphasized that though the Notice to Appear did not provide
the date and time of Singh’s hearing, any alleged error was
essentially harmless because the government subsequently
sent hearing notices to Singh’s address that included this
information. As to Singh’s “exceptional circumstances”
argument, the Immigration Judge concluded that
“exceptional circumstances” must be beyond a noncitizen’s
control, and here, a failure in the innerworkings of his family
friend’s household did not meet that requirement.
After the Immigration Judge’s decision, but before the
BIA affirmed it, the BIA decided Matter of Pena-Mejia,
27 I. & N. Dec. 546 (BIA 2019), in which it limited Pereira
to the stop-time rule context and held that rescission of an in
absentia removal order is not required where the government
provides the time and date of the hearing in a subsequent
hearing notice, even if it is not provided in the initial Notice
to Appear. Relying on this precedent, the BIA affirmed the
Immigration Judge’s denial of Singh’s motion to reopen.
The BIA also affirmed the Immigration Judge’s conclusion
rejecting the “exceptional circumstances” ground for
reopening. Singh timely petitioned this court for review.
We have jurisdiction to review his petition under
8 U.S.C. § 1252(a)(1). We review the BIA’s denial of
Singh’s motion to reopen for an abuse of discretion but
review purely legal questions de novo. Bonilla v. Lynch, 840
8 SINGH V. GARLAND
F.3d 575, 581 (9th Cir. 2016). We grant Singh’s petition and
hold that noncitizens must receive a Notice to Appear in a
single document specifying the time and date of the
noncitizen’s removal proceedings, otherwise any in absentia
removal order directed at the noncitizen is subject to
rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).
Because we hold that Singh received defective notice under
§ 1229(a), we do not reach the issue whether “exceptional
circumstances” were present in Singh’s case.
DISCUSSION
An in absentia removal order can be rescinded if a
noncitizen “did not receive notice in accordance with
paragraph (1) or (2) of section 1229(a).” 8 U.S.C.
§ 1229a(b)(5)(c)(ii). Section 1229(a), in turn, is aptly named
“Notice to Appear” and delineates the requirements that
apply to such notice. Id. § 1229(a). Paragraph (1) defines
the “notice to appear” and requires the government to
specify seven enumerated categories of information
including the “time and place at which the proceedings will
be held” in that Notice to Appear. Id. § 1229(a)(1).
Paragraph (2) of section 1229(a), by contrast, explains
what information must be provided if the government
changes the time or place of the removal proceedings.
Entitled “Notice of change in time or place of proceedings,”
this subsection expressly states that “in the case of any
change or postponement in the time and place of such
proceedings . . . a written notice shall be given in person to
the alien . . . specifying [] the new time or place of the
proceedings” and describes the consequences of failing to
appear. Id. § 1229(a)(2)(A). These notices of change in time
or place of proceedings are commonly referred to as
“hearing notices.”
SINGH V. GARLAND 9
The government contends, and the BIA accepted, that
although Singh received a Notice to Appear that failed to
state the time or date of his removal hearing, this omission
was cured by the subsequent hearing notices sent to him
pursuant to paragraph (2) of § 1229(a) notifying him of
changes in time or place of his proceedings. We disagree
because this interpretation of § 1229a(b)(5)(C)(ii)
contravenes the unambiguous statutory text and the Supreme
Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474
(2021).
I.
Section 1229(a)’s notice requirements have generated
significant controversy in recent years. In Pereira v.
Sessions, the Supreme Court considered whether a Notice to
Appear that does not specify the time and date of removal
proceedings nevertheless triggers the “stop-time rule”
ending a noncitizen’s continuous presence for purposes of
cancellation of removal. 138 S. Ct. at 2113. The Court
determined that it “need not resort to Chevron deference”
because the text of § 1229(a) is unambiguous, and a Notice
to Appear that does not specify a time or place for the
removal hearing “is not a ‘notice to appear under section
1229(a)’” and as a result does not trigger the stop-time rule.
Id. at 2113, 2114.
After Pereira, the government “could have responded
. . . by issuing notices to appear with all the information
§ 1229(a)(1) requires,” but instead it relied on a two-step
practice—familiar to Singh—whereby it would serve a
Notice to Appear with the time and date of the removal
hearing “to be determined” and then subsequently send
hearing notices with this information. Niz-Chavez, 141 S. Ct
at 1479. The Court rejected this two-step practice in Niz-
Chavez, interpreting § 1229(a) to require a “single statutorily
10 SINGH V. GARLAND
compliant document” to trigger the stop-time rule and
concluding that a subsequent hearing notice could not cure a
defective Notice to Appear. Id. at 1481.
Nevertheless, the government in this case asks us to
approve the same two-step notice process for in absentia
removal orders that the Supreme Court rejected in the stop-
time-rule context in Niz-Chavez. Even if the BIA’s
interpretation of the notice required for in absentia removal
orders was reasonable in 2019 after Pereira, it does not
survive Niz-Chavez.
In Matter of Pena-Mejia, the BIA cabined the reach of
Pereira, holding that the Supreme Court’s interpretation of
§1229(a) notice in Pereira was limited to the specific
language in the stop-time rule. 27 I. & N. Dec. at 547. But
in Niz-Chavez, the Supreme Court conducted a statutory
analysis of § 1229(a) separate from its analysis of the stop-
time rule. See Niz-Chavez, 141 S. Ct. at 1480–82. The
Supreme Court began by analyzing the stop-time rule’s
language in §1229b of the statute, but it then independently
analyzed the text of § 1229(a) and rejected the government’s
two-step approach to providing notice because that approach
was inconsistent with the “singular article ‘a’” in
§ 1229(a)(1). Id. at 1480. This reasoning demonstrates that
the Supreme Court’s interpretation of § 1229(a)’s notice
requirements in Niz-Chavez extends beyond the context of
the stop-time rule.
Beyond performing a separate statutory analysis of
§ 1229(a), the Supreme Court in Niz-Chavez also expressly
interpreted the statutory provisions governing in absentia
orders. Specifically, the Court explained that § 1229a(b)(7),
which limits the discretionary relief available to certain
noncitizens who receive in absentia orders, uses the singular
article “the” before the word “notice.” Id. at 1483. This use
SINGH V. GARLAND 11
of a definite article with a singular noun indicated to the
Court that the statute speaks of a Notice to Appear as a
“discrete” document offered at a single point in time rather
than an “ongoing endeavor.” Id. This specific analysis of a
statutory provision governing in absentia removal orders
forecloses the government’s argument that the Court’s
interpretations of notice in Pereira and Niz-Chavez should
be limited to the stop-time rule context. Niz-Chavez made
clear that the government must provide all statutorily
required information in a single Notice to Appear, not only
to trigger the stop-time rule, but for all removal proceedings
that require notice pursuant to § 1229(a). We therefore join
the Fifth Circuit in holding that the Supreme Court’s
“separate interpretation of the § 1229(a) notice requirements
in Niz-Chavez [] applies in the in absentia context” in
addition to the stop-time-rule context. Rodriguez v.
Garland, 15 F.4th 351, 355 (5th Cir. 2021).
Lending additional support to our view is the fact that the
statutory provisions governing in absentia removal orders
explicitly incorporate § 1229(a) by reference, just like the
statutory provision governing the stop-time rule. See
Pereira, 138 S. Ct. at 2114. Before an in absentia order can
be issued, § 1229a(b)(5)(A) requires “written notice
required under paragraph (1) or (2) of section 1229(a)” to be
provided. Then, after an in absentia order has been issued,
a noncitizen can seek rescission at any time if they “did not
receive notice in accordance with paragraph (1) or (2) of
section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii). Section
1229a references § 1229(a) notice a third time when it limits
discretionary relief for noncitizens who fail to appear at their
proceedings when they received oral notice in addition to the
“notice described in paragraph (1) or (2) of section 1229(a).”
Id. § 1229a(b)(7). These three explicit references provide
“the glue” binding “the substantive time-and-place
12 SINGH V. GARLAND
requirements mandated by § 1229(a)” to in absentia removal
orders, just as they are bound to the stop-time rule. See
Karingithi v. Whitaker, 913 F.3d 1158, 1161 (9th Cir. 2019)
(quoting Pereira, 138 S. Ct. at 2117).
II.
The government reasons that because § 1229a(b)(5)(A)
is written in the disjunctive and allows for in absentia
removal if a noncitizen received notice in accordance with
paragraph (1) “or” (2) of §1229(a), the government should
be permitted to follow the two-step notice process in the in
absentia removal context, even though the Supreme Court
rejected that two-step notice process in the stop-time rule
context. See Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486
(2021). The BIA recently adopted the government’s
argument in Matter of Laparra, 28 I. & N. Dec. 425 (BIA
2022). We are not persuaded by the government or the BIA
that the word “or” in § 1229a(b)(5)(A) displaces the
Supreme Court’s interpretations of “Notice to Appear” in
Pereira and Niz-Chavez. The plain text, the statutory
structure, and common sense command otherwise.
First, by the plain text of paragraph (2) of § 1229(a) there
can be no valid notice under paragraph (2) without valid
notice under paragraph (1). Paragraph (2) is entitled “Notice
of change in time or place of proceedings,” and it requires
that “in the case of any change or postponement in the time
and place” of the removal proceedings, written notice must
be provided to the noncitizen specifying the new time or
place. 8 U.S.C. § 1229(a)(2)(A). This text presupposes—
and common sense confirms—that the Notice to Appear
provided in paragraph (1) must have included a date and time
because otherwise, a “change” in the time or place is not
possible. We are surprised that the government would argue
SINGH V. GARLAND 13
otherwise given that the Supreme Court already adopted this
plain reading of paragraph (2) in Pereira:
By allowing for a “change or postponement”
of the proceedings to a “new time or place,”
paragraph (2) presumes that the Government
has already served a “notice to appear under
section 1229(a)” that specified a time and
place as required by § 1229(a)(1)(G)(i).
Otherwise, there would be no time or place to
“change or postpon[e].” § 1229(a)(2) . . . .
Paragraph (2) clearly reinforces the
conclusion that “a notice to appear under
section 1229(a),” § 1229b(d)(1), must
include at least the time and place of the
removal proceedings . . . .
138 S. Ct. at 2114.
Section 1229(a) also begins with unambiguous
definitional language, explaining that “written notice” is “in
this section referred to as a ‘notice to appear.’” 8 U.S.C.
§ 1229(a)(1). Throughout § 1229(a), then, any reference to
written notice is the “Notice to Appear” defined in paragraph
(1) with its accompanying enumerated requirements. By
definition, subsequent hearing notices under paragraph (2)
are not, by themselves, “written notice” under § 1229(a)
because they are not a “Notice to Appear” but rather a
“Notice of change in time or place of proceedings.” Id.
§ 1229(a)(2).
A look at the statutory structure of Section 1229(a)
resolves any doubt. Paragraph (1), longer and more
descriptive, defines the initial “Notice to Appear” and what
it must include. Id. § 1229(a)(1). Paragraph (2), shorter in
length, describes only what is required when there has been
14 SINGH V. GARLAND
a “Notice of change in time or place of proceedings.” Id.
§ 1229(a)(2). Paragraph (2) requires the government to
provide the noncitizen with the new time and date of the
hearing and sets forth the consequences of not showing up;
it does not repeat the long list of requirements for written
notice contained in paragraph (1). The hearing notices that
the government sent Singh under paragraph (2), then, are
additions to, and not alternatives to, the Notice to Appear
described in paragraph (1). Thus, the “or” in
§ 1229a(b)(5)(C)(ii) accounts for situations in which the
government needs to change or postpone a noncitizen’s
removal hearing; it does not provide a textual backdoor to
circumvent the written-notice requirements enumerated in
paragraph (1).
CONCLUSION
The Supreme Court’s decisions in Pereira and Niz-
Chavez, along with the text and structure of the statutory
provisions governing in absentia removal orders and Notices
to Appear, unambiguously required the government to
provide Singh with a Notice to Appear as a single document
that included all the information set forth in 8 U.S.C.
§ 1229(a)(1), including the time and date of the removal
proceedings. Because the government did not provide Singh
with statutorily compliant notice before his removal hearing,
Singh’s in absentia removal order is subject to recission
pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). We grant Singh’s
petition on that ground, do not reach his exceptional
circumstances argument, and remand to the BIA for further
proceedings consistent with this opinion.
PETITION GRANTED and REMANDED.