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ZHENG v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-08-17No. 19-2923

Summary

Holding. The petition for review is denied because the Board of Immigration Appeals did not abuse its discretion in rejecting Zheng's jurisdictional argument, as controlling precedent limits the Pereira doctrine to the stop-time rule and does not bar removal proceedings based on an incomplete notice to appear when the noncitizen receives timely notice and appears at hearings.

Hai Qin Zheng, a Chinese citizen facing removal, sought to reopen her removal proceedings, arguing that her notice to appear lacked the date and time of her initial hearing, thereby depriving the immigration court of jurisdiction. She relied on Pereira v. Sessions, which addressed defective notices in the context of the stop-time rule for cancellation of removal eligibility. However, the court found that Pereira and related precedent do not extend to jurisdictional challenges; those cases concern only whether an incomplete notice triggers the stop-time rule, not whether it vests the court with authority to hear removal cases. Because Zheng received subsequent notice of her hearing dates and actually appeared at the proceedings, the deficiency in her original notice did not prevent the immigration court from exercising jurisdiction.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a notice to appear omitting the date and time of the initial hearing deprives the immigration court of jurisdiction over removal proceedings
  • Whether Pereira v. Sessions extends beyond the stop-time rule to jurisdictional requirements
  • Whether subsequent notice of hearing dates cures a defective initial notice to appear

Procedural posture

The petitioner sought judicial review of the Board of Immigration Appeals' denial of her motion to reopen removal proceedings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

SUMMARY ORDER

Petitioner Hai Qin Zheng, a native and citizen of the Peoples Republic of China, seeks review of an August 29, 2019, decision of the BIA denying her motion to reopen and terminate her removal proceedings. In re Hai Qin Zheng, No. A XXX XX7 618 (B.I.A. Aug. 29, 2019). We assume the parties’ familiarity with the underlying facts and procedural history.

We review the BIAs denial of a motion to reopen for abuse of discretion. See Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir. 2007). The BIA abuses its discretion if its “decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (internal quotation marks omitted).

The BIA did not abuse its discretion here. Zheng argued that, under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 2114, 201 L.Ed.2d 433 (2018), the immigration court lacked jurisdiction over her removal proceedings because her notice to appear (“NTA”) did not include the date and time of her initial hearing. In Pereira, the Supreme Court held that an NTA that fails to designate the time or place of an initial hearing in removal proceeding does not trigger the stop-time rule ending the noncitizens period of continuous presence for purposes of cancellation of removal. 138 S. Ct. at 2113–20; see also Niz-Chavez v. Garland, ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021) (holding that an NTA that omits statutorily required information is not cured for purposes of the stop-time rule by a subsequent notice that contains the missing information). Zheng did not apply for cancellation of removal, but instead argues that Pereira also renders such an NTA inadequate to vest jurisdiction in the immigration court. Zhengs argument is foreclosed by Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), which holds that an NTA that omits the date and time of the hearing is adequate to vest jurisdiction in the immigration court if the noncitizen was sent a subsequent hearing notice with the missing information, id. at 110–12. See also Niz-Chavez, 141 S. Ct. at 1479–84 (like Pereira, addressing only the stop-time rule and not questioning the immigration courts jurisdiction over removal proceedings commenced by an incomplete NTA). Zheng received notice of her hearings and appeared at them.

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.