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Matter of Bermudez-Cota, The BIA Gets It Wrong on Pereira

Matter of Bermudez-Cota, The BIA Gets It Wrong on PereiraIt is no doubt that Pereira v. Sessions has given the immigrant community a lot of hope. The Supreme Court issued a decision that finally showed that the majority of notices to appear issued by the government are defective. In Bermudez-Cota, a case where the Board of Immigration Appeals had a chance to clarify the issue, it reached the wrong decision. The Board found a way to distinguish two cases that had no real differences. It seems that the Board found a way to reach a pre-determined conclusion.

What Did Pereira Do?

Pereira dealt with a narrow issue: did a Notice to Appear that did not include a time and a place for removal proceedings trigger the stop-time rule for Cancellation of Removal purposes? The Supreme Court answered the questions in the negative. Namely, the Court ruled that a defective Notice to Appear did not trigger the rule. However, to reach the conclusion, the Court had to rule on whether such notice did not meet the elements in INA 239. The Court did in fact rule that the Notice is defective under such section, namely because it did not include the time and the place of proceedings. The Court did not rule that a subsequent hearing notice cured the defects in the Notice to Appear itself.

What Did the Board Rule in Bermudez-Cota? 

The Board in Bermudez-Cota was deciding whether a Notice to Appear that did not include the time and the place of the proceedings is defective for all purposes. The Respondent in the case had received a hearing notice and appeared at subsequent hearings, unlike the immigrant in Pereira.  The Board ruled that these subsequent hearing notices, which he received, cured the defects in the Notice to Appear. The Board focused its analysis of the Pereira decision on facts that Supreme Court did not reach, which makes the decision unsound.

What Does INA 239 Say?

The decision in Bermudez-Cota is wrong for a simple reason: INA 239 includes the time and place of proceedings as an element of a sound Notice to Appear. The statutory text of INA 239 includes these elements:

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are conducted.

(C) The acts or conduct alleged to be in violation of law.

(D) The charges against the alien and the statutory provisions alleged to have been violated.

(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) and (ii) a current list of counsel prepared under subsection (b)(2).

(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 1229a of this title.

(F)(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number.

(F)(iii) The consequences under section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph.

(G)(i) The time and place at which the proceedings will be held.

(G)(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.

8 U.S.C.A. § 1229 (West)

Why is Bermudez-Cota Wrong?

Clearly, INA 239(G)(i) lists time and place as elements of an effective Notice to Appear. Thus, any Notice to Appear that did not include these elements would be per se defective under the INA. Additionally, the lack of time and place would be a due process violation, since it would be a lack of notice of the proceedings. However, as in every violation of due process, the question becomes a question of prejudice. The immigrant in Pereira was in fact prejudiced by failing to appear at his hearing, where the immigrant in Bermudez did in fact appear.

The Board went a step further in the analysis, ruling that the subsequent hearing notices cure the defect in the Notice to Appear. However, the cases cited by the Board were pre-Pereira. Additionally, the statutory language, as shown above,  do not cure the defective Notice to Appear, in my opinion.

One thing is clear, the issue will reach the Supreme Court again. We will wait for the court to rule on the issue again. If you have any questions, please contact us.

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