On August 31, 2018, the Board of Immigration Appeals (BIA) issued a decision in Matter of Bermudez-Cota which attempts to severely limit who benefits from the Supreme Court’s decision in Pereira v. Sessions.

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German Bermudez-Cota was born in Mexico and entered the U.S. in 1991. More than two decades later, in 2013, he was served with a Notice to Appear (NTA) which did not specify the date and time of his hearing before an Immigration Judge. Subsequent notices contained the date and time of his hearings.

In 2017, he requested that he be granted a continuance or that his case be administratively closed in order to allow him to apply for adjustment of status. The Judge denied both of his requests, and granted him voluntary departure. He appealed the Judge’s decision to the BIA.

While his appeal was pending, he filed a Motion to Terminate based on the US Supreme Court’s decision in Pereira v. Sessions. Since the NTA which was served on him did not include the date and time of his hearing, he argued that it was invalid and that the Immigration Judge lacked jurisdiction over his case.

Why the BIA’s Decision in Bermudez-Cota is Incorrect

The BIA held that since the facts in Mr. Pereira’s case concerned whether the government could invoke the “stop-time rule” to prevent him from applying for cancellation of removal, Pereira’s holding was “narrow” and does not apply to Mr. Bermudez-Cota since he was not applying for cancellation of removal or seeking to invoke the stop-time rule.

Interestingly, the BIA’s decision relies on the same regulation which was held to be invalid and not in accordance with the law by the Supreme Court in Pereira:

“Further, terminating proceedings where service was proper under 8 C.F.R. § 1003.18(b) (2018) would require us to disregard a regulation that we are compelled to follow.”

In Pereira, the Supreme Court held that the law, at 8 USC Section 1229(a)(1)(G)(i), clearly requires NTAs to designate the date and time of a person’s hearing and that:

“Failing to specify integral information like the time and place of removal proceedings unquestionably would ‘deprive [the notice to appear] of its essential character.’”

The Court held that because the law is clear and unambiguous regarding the requirement that NTAs must specify the date and time of a person’s hearing, there is no need to accord Chevrondeference to the 1997 regulation relied upon by the government which provides that an NTA need only provide “the time, place and date of the initial removal hearing, where practicable”. 62 Fed. Reg. 10332

Despite this, the BIA in Bermudez-Cota bases its decision on a regulation which clearly conflicts with the law:

“Notably, 8 C.F.R. § 1003.15(b) (2018), which lists the information that must be contained in a notice to appear, does not mandate that the time and date of the initial hearing must be included in that document.”

For this reason, it is clear that the BIA’s ruling in Bermudez-Cota conflicts both with the Supreme Court’s decision in Pereira v. Sessions and with the immigration law’s requirement that the date and time of the hearing must be contained in the Notice to Appear.

Attempting to “narrow” the reach of the Supreme Court’s decision in Pereira to the specific facts of the case is a fallacious argument since the language of the law is clear and unambiguous.

I have little doubt that if Matter of Bermudez-Cota is appealed to the U.S. Court of Appeals for the 9th Circuit, the Court would hold that the NTA was invalid and removal proceedings should be terminated. Whether to follow the U.S. Supreme Court’s holding in Pereira v. Sessions is not optional. The BIA and the Federal Courts are required to do so.