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Goncalves Pontes v. Barr

United States Court of Appeals, First Circuit

September 6, 2019



          Jerome P. Mayer-Cantu, with whom Philip L. Torrey and Crimmigration Clinic, Harvard Law School, were on brief, for petitioner.

          Kari Hong, Ninth Circuit Appellate Program, Boston College Law School, on brief for Retired Immigration Judges et al., amici curiae.

          Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, Daniel E. Goldman and Brianne Whelan Cohen, Senior Litigation Counsels, Office of Immigration Litigation, were on brief, for respondent.

          Before Torruella, Selya, and Kayatta, Circuit Judges.


         The petitioner, Danielson Mendes Goncalves Pontes, is a Cape Verdean national. He seeks judicial review of a final order of the Board of Immigration Appeals (BIA) ordering him removed to his homeland and denying his motions to terminate removal proceedings. Addressing a challenge to the manner in which immigration courts obtain jurisdiction over removal proceedings - a challenge that has potentially broad implications and that hinges on a question of first impression in this circuit - we conclude that the Supreme Court's decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), did not invalidate the Notice to Appear (NTA) that served as the charging document in the petitioner's removal proceedings. Based on this conclusion, we hold that the petitioner's motions to terminate his removal proceedings were properly denied and that the BIA's final order of removal was in accordance with law. Accordingly, we deny the petition for judicial review.

         I. BACKGROUND

         The petitioner was admitted to the United States and became a lawful permanent resident on March 2, 2010. On December 20, 2013, he was convicted in a Massachusetts court of violating a protective order. See Mass. Gen. Laws ch. 209A, § 7. In September 2017, federal authorities served him with an NTA, which informed him that he was being charged with removability based on the protective-order conviction, see 8 U.S.C. § 1227(a)(2)(E)(ii), and directed him to appear in the immigration court in Boston on an unspecified future date.

         In January of 2018, the petitioner was taken into custody by Immigration and Customs Enforcement agents and detained at a Massachusetts correctional facility. The following month, he was served with a notice of hearing, which directed him to appear in the Boston immigration court on February 22, 2018, at 1:00 p.m. The petitioner participated in that hearing remotely from the correctional facility, and the proceedings were continued on March 1. At the March hearing, the petitioner submitted written pleadings admitting the factual allegations of the NTA, conceding removability as charged, and indicating his intention to apply for relief from removal. Although the petitioner initially signaled that he would seek cancellation of removal, see id. § 1229b, he subsequently abandoned that avenue and sought only adjustment of status, see id. § 1255, with a request in the alternative for voluntary departure.

         After a two-day hearing in July of 2018, the immigration judge (IJ) denied the petitioner's application for relief (including his request for voluntary departure) and ordered him removed to Cape Verde. The IJ assumed, arguendo, that the petitioner had satisfied the statutory eligibility requirements for adjustment of status, see id. § 1255(i)(2), but found that "significant adverse factors . . . weigh[ed] heavily against a discretionary grant of adjustment of status." This compendium of adverse factors included restraining orders filed against him by several women as a result of violent or threatening behavior.

         The petitioner appealed to the BIA. While his appeal was pending, the petitioner filed two alternative motions seeking either to terminate removal proceedings or to remand to the immigration court. In these motions, he contended that - under Pereira, which the Supreme Court had decided some weeks before his July hearing - his NTA was ineffective as a charging document because it failed to include the date and time of the contemplated removal hearing. Consequently, he posited, the immigration court lacked jurisdiction over his case and the removal order was a nullity.

         On December 28, 2018, the BIA dismissed the petitioner's appeal, adopting and affirming the IJ's decision. Denying the petitioner's motions to terminate the proceedings or to remand, the BIA determined that Pereira did not undermine the immigration court's jurisdiction. In support, the BIA noted that it had rejected essentially the same argument in an earlier case. See In re Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018).

         This timely petition for judicial review followed. See ...

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