and Submitted October 11, 2018 San Francisco, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A087-020-992
Lieberman (argued), Law Office of Rudy Lieberman, San
Francisco, California, for Petitioner.
D. Mack (argued) and Leslie M. McKay, Senior Litigation
Counsel; Terri J. Scadron, Assistant Director; Joseph H.
Hunt, Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Hoffman, Law Foundation Professor of Law, University of
Houston Law Center, Houston, Texas, as and for Amicus Curiae.
Before: M. Margaret McKeown, William A. Fletcher, and Jay S.
Bybee, Circuit Judges.
panel denied Serah Karingithi's petition for review of
the Board of Immigration Appeals' denial of relief from
removal, holding that a notice to appear that does not
specify the time and date of an alien's initial removal
hearing vests an immigration judge with jurisdiction over the
removal proceedings, so long as a notice of hearing
specifying this information is later sent to the alien in a
Supreme Court recently held in Pereira v. Sessions,
138 S.Ct. 2105 (2018), that a notice to appear lacking the
time and date of the hearing before an immigration judge is
insufficient to trigger the stop-time rule for purposes of
cancellation of removal relief. In light of Pereira,
Karingithi argued that a notice to appear lacking the time
and date of the hearing was insufficient to vest jurisdiction
with the immigration court.
panel rejected this argument. The panel noted that
Pereira addressed the required contents of a notice
to appear in the context of the stop-time rule and the
continuous physical presence requirement for cancellation of
removal under 8 U.S.C. §§ 1229(a), 1229b, but was
not in any way concerned with the immigration court's
jurisdiction. The panel held that Pereira's
narrow ruling does not control the analysis of the
immigration court's jurisdiction because, unlike the
stop-time rule, the immigration court's jurisdiction does
not hinge on § 1229(a). The panel explained that the
issue of immigration court jurisdiction is instead governed
by federal immigration regulations, including 8 C.F.R.
§§ 1003.13, 1003.14(a), 1003.15(b), which do not
require that the charging document include the time and date
of the hearing.
panel noted that its reading of the regulations was
consistent with the Board's recent decision in Matter
of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018),
which held that "a notice to appear that does not
specify the time and place of an alien's initial removal
hearing vests an Immigration Judge with jurisdiction over the
removal proceedings . . . so long as a notice of hearing
specifying this information is later sent to the alien."
The panel also concluded that the Board's decision in
Bermudez-Cota warranted deference.
the charging document in this case satisfied the regulatory
requirements, and Karingithi received subsequent timely
notices including the time and date of her hearing, the panel
held that the immigration judge had jurisdiction over the
panel declined to consider Karingithi's argument, in the
alternative, that Pereira renders her eligible for
cancellation of removal, because cancellation relief was a
new claim that was not part of the present petition for
panel addressed the merits of Karingithi's petition for
review of the denial of asylum and related relief in a