BIA, En Banc (9-6) on Pereira, Bermudez-Cota: Matter of Mendoza-Hernandez and Capula-Cortes

Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019)

Board En Banc: NEAL, Chairman; MALPHRUS, WENDTLAND, MULLANE, GREER, MANN, O’CONNOR, LIEBOWITZ, and KELLY, Board Members. Dissenting Opinion: GUENDELSBERGER, joined by ADKINS-BLANCH, Vice Chairman; COLE, GRANT, CREPPY, KENDALL CLARK, Board Members.

Headnote: A deficient notice to appear that does not include the time and place of an alien’s initial removal hearing is perfected by the subsequent service of a notice of hearing specifying that missing information, which satisfies the notice requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), and triggers the “stop-time” rule of section 240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A) (2012). Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), followed. 

Majority conclusion: "[W]here a notice to appear does not specify the time and 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, satisfies the notice requirements of section 239(a)(1) of the Act, and triggers the “stop-time” rule of section 240A(d)(1)(A) of the Act."

Dissent conclusion: "Congress, in section 240A(d)(1)(A) of the Act defined the event that triggers the “stop-time” rule as “service of a notice to appear under section 239(a).” The Court in Pereira, 138 S. Ct. at 2114–15, held that Congress’ reference to “service of a notice to appear under section 239(a),” means a “notice to appear” as defined in section 239(a)(1) of the Act. The Court also held that, “[b]ased on the plain language of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.” Id. at 2114 (alteration in original) (quoting section 239(a)(1) of the Act). As the Court concluded, “At the end of the day, given the clarity of the plain language, we ‘apply the statute as it is written.’” Id. at 2119–20. The plain language of the Act leaves no room for the majority’s conclusion that a subsequent notice of hearing can cure a notice to appear that fails to specify the time and place of the initial removal hearing. For these reasons, neither the service of the notice to appear nor the subsequent service of a notice of hearing on the respondents triggered the “stop-time” rule for purposes of cancellation of removal under section 240A of the Act."