April 8, 2019
Petition for Review of a Dedsion of the Board of Immigration
Appeals No. A206-788-936
Wood, Chief Judge, and Scudder and St. Eve, Circuit Judges.
the Supreme Court has reminded us, "is a word of many,
too many meanings." Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 90 (1998) (quoting
United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C.
Cir. 1996)). Petitioner Mario Ortiz-Santiago, who is seeking
to avoid removal from this country, now asks us to wade into
those murky waters. He contends that because the Notice to
Appear ("Notice") sent to him by the Department of
Homeland Security ("DHS") did not have the
statutorily required time-and-date information for his
removal hearing, subject-matter jurisdiction never vested in
the Immigration Court. This flaw, he reasons, rendered the
Notice so defective that it did not suffice to trigger the
Immigration Court's jurisdiction over his case. Because
he never was properly placed in removal proceedings, he
concludes, the order of removal that the Immigration Judge
entered and the Board of Immigration Appeals affirmed must be
is correct that the Notice was procedurally defective, but he
overstates the problem. The requirement that a Notice
include, within its four corners, the time, date, and place
of the removal proceeding is not "jurisdictional"
in nature. It is instead the agency's version of a
claim-processing rule, violations of which can be forfeited
if an objection is not raised in a timely manner. We thus
hold, as have the Second, Sixth, and Ninth Circuits, that an
Immigration Court's jurisdiction is secure despite the
omission in a Notice of time-and-place information. See
Banegas Gomez v. Ban, - F.3d -, No. 15-3269, 2019 WL
1768914, at *6-8 (2d Cir. April 23, 2019); Santos-Santos
v. Ban, 917 F.3d 486 (6th Cir. 2019); Karingithi v.
Whitaker, 913 F.3d 1158 (9th Cir. 2019);
Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir.
2018). Although we take a different path from those circuits
to reach this conclusion, we agree that nothing in
Pereira v. Sessions, 138 S.Ct. 2105 (2018), requires
a different result. See also Villa Serrano v. Ban, -
F.3d -, No. 18-2886, 2019 WL 2052354, at *4 (7th Cir. May 9,
2019) (noting but not deciding this issue). We therefore deny
Ortiz-Santiago's petition for review.
is a Mexican citizen who has continuously resided in the
United States without legal status since 1999. He is now
about 50 years old. In October 2015, he was arrested for
driving without a license. Shortly thereafter Immigration and
Customs Enforcement served him with a document entitled
"Notice to Appear" for removal proceedings. See 8
U.S.C. § 1229(a). This Notice asserted that he is a
removable noncitizen because he entered the United States
without being admitted or paroled. The Notice did not,
however, include either a time or date for
Ortiz-Santiago's hearing before the Immigration Judge.
This omission violated the Immigration and Nationality Act.
See 8 U.S.C. § l229(a)(1)(G)(i) (requiring a Notice to
include "[t]he time and place at which the proceedings
will be held"). Cƒ. 8 C.F.R. § 1003.15(b), (c)
(specifying the contents of a Notice with no mention of time
and date). The Notice Ortiz-Santiago received said only that
he should appear at the Office of the Immigration Judge in
Chicago at a date and time "to be set." Shortly
thereafter, the Immigration Court sent Ortiz-Santiago a
"Notice of Hearing," setting his hearing for
November 12, 2015 at 10:30 a.m. More than a decade ago, we
expressly approved this two-step procedure. See Dababneh
v. Gonzales, 471 F.3d 806, 809-10 (7th Cir. 2006).
proceedings before the Immigration Judge on August 24, 2016,
Ortiz-Santiago conceded that he was subject to removal. He
nevertheless sought cancellation of removal based on his
having spent more than ten continuous years in the United
States, his good moral character, and the purported hardship
that his removal would cause to his stepfather, who is a
legal permanent resident. See 8 U.S.C. § l229b(b). After
a hearing, the Immigration Judge denied cancellation, finding
that Ortiz-Santiago had failed to show the requisite hardship
to his stepfather or his own good moral character.
appealed that decision to the Board of Immigration Appeals
("the Board"). While his appeal was pending, the
Supreme Court decided Pereira, which held that a
Notice that lacked the statutorily-required time-and-date
information did not trigger the stop-time rule. 138 S.Ct. at
2118. (That rule dictates the end-point of the
non-citizen's qualifying residence in the United States
for certain immigration benefits.) The Court stated, without
qualification, that "[a] document that fails to include
such information is not a 'notice to appear under section
1229(a)' and thus does not trigger the stop-time
rule." Id. Approximately two months after that
decision, but before the Board issued its decision in this
case, Ortiz-Santiago filed a motion to remand with the Board.
He took the Court at its word: no time-and-date information,
he believed, was the same as no Notice at all. See 8 C.F.R.
§ 1003.14 (stating that "jurisdiction vests ...
when a charging document [including a Notice to Appear] is
filed with the Immigration Court"). In his view, all he
received was a useless piece of paper that did not suffice to
initiate anything. The Board denied Ortiz-Santiago's
motion to remand and, on de novo review, it affirmed
the Immigration Judge's finding that he failed to show
that his stepfather would suffer sufficient hardship to
warrant cancellation. This timely petition for review, in
which Ortiz-Santiago emphasizes his
"jurisdictional" argument, followed.
all questions of statutory interpretation, we start with the
statute's text. In relevant part, 8 U.S.C. §
l229(a)(1)(G)(i) states that:
In removal proceedings under section 1229a of this title,
written notice (in this section referred to as a "notice
to appear") shall be given in person to the alien (or,
if personal service is not practicable, through service by
mail to the alien or to the alien's counsel of record, if
any) specifying the ...