PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
APPEALS
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.
SELYA,
CIRCUIT JUDGE.
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 ...