LAPARRA

Cite as 

 (BIA 2022)                                   Interim Decision #4034




     Matter of Sergio Rodolfo LAPARRA-DeLeon, Respondent
                              Decided January 18, 2022

                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals


  A respondent receives sufficient written notice to support the entry of an in absentia order
of removal, even if he or she was served with a noncompliant notice to appear that did not
specify the time or place of the hearing, where the respondent was properly served with a
statutorily compliant notice of hearing specifying this information. Niz-Chavez v. Garland,

 (2021), distinguished. Matter of Pena-Mejia, 

 (BIA
2019), and Matter of Miranda-Cordiero, 

 (BIA 2019), reaffirmed.
FOR RESPONDENT: Lidia M. Sanchez, Esquire, Providence, Rhode Island
FOR THE DEPARTMENT OF HOMELAND SECURITY:                              Meggan G. Johnson,
Associate Legal Advisor
BEFORE: Board Panel: GREER and O’CONNOR, Appellate Immigration Judges;
DE CARDONA, Temporary Appellate Immigration Judge.
GREER, Appellate Immigration Judge:


    On July 19, 2021, the respondent filed a motion with this Board to reopen
and terminate his removal proceedings, or alternatively to reopen and rescind
the in absentia removal order entered against him on April 12, 2010, based
on the United States Supreme Court’s decisions in Pereira v. Sessions, 

 (2018), and Niz-Chavez v. Garland, 

 (2021). We
conclude that these decisions do not alter the validity of the in absentia
removal order entered against the respondent. Although he was served with
a notice to appear that did not specify the time or place of the hearing at
which he was ordered removed in absentia, he was later served with a notice
of hearing that complied with the statute and specified this information as
well as the consequences of failing to appear for his hearing. These
documents vested the Immigration Judge with jurisdiction over his
proceedings, supplied the respondent with sufficient notice of the time and
place of his hearing, and informed him he could be ordered removed in
absentia if he failed to appear. Accordingly, his motion will be denied.




                                            425
Cite as 

 (BIA 2022)                           Interim Decision #4034




            I. FACTUAL AND PROCEDURAL HISTORY
     The respondent is a native and citizen of Guatemala who entered the
United States without inspection at an unknown place and date. The
Department of Homeland Security (“DHS”) personally served him with
a notice to appear on July 15, 2008, ordering him to appear for a hearing
before an Immigration Judge in Boston, Massachusetts, at a date and time to
be set. On March 19, 2010, the Immigration Court sent a notice of hearing
to the respondent at the address he provided, notifying him that his initial
hearing was scheduled to take place before the Boston Immigration Court on
April 8, 2010, at 1:30 p.m. and of the consequences of failing to attend this
hearing. When the respondent did not appear at that hearing, the Immigration
Judge ordered him removed in absentia.
     Citing Pereira v. Sessions, the respondent moved to reopen and terminate
his proceedings, arguing that the Immigration Judge had no jurisdiction over
the proceedings because he was served with a notice to appear that did not
list the date and time of the removal hearing. The Immigration Judge denied
the respondent’s motion based on the Board’s decision in Matter of
Bermudez-Cota, 

 (BIA 2018). In that case, we distinguished
Pereira and held that a notice to appear that does not specify the time or place
of a noncitizen’s initial removal hearing vests an Immigration Judge with
jurisdiction over the removal proceedings and meets the requirements of
section 239(a) of the Immigration and Nationality Act, 

(a)
(2018), so long as a notice of hearing specifying this information is later
served on the noncitizen. The respondent appealed from the Immigration
Judge’s denial of his motion, and we dismissed the respondent’s appeal from
the Immigration Judge’s decision.
     In his current motion to terminate, the respondent relies on the Supreme
Court’s decision in Niz-Chavez v. Garland to again argue that his notice to
appear failed to vest the Immigration Judge with jurisdiction. He
additionally argues that his in absentia removal order must be rescinded
because he was not served with “written notice” of his hearing, as required
by section 240(b)(5)(A) of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2018). 1

                        II. LEGAL BACKGROUND
    The noncitizen in Pereira v. Sessions was issued a notice to appear in
2006 that did not specify the date and time for his initial hearing, and a notice
of hearing containing this information was sent to the wrong address in 2007.
The noncitizen did not appear and was ordered removed in absentia. In 2013,
1
   To resolve any issue regarding the timeliness of the respondent’s motion, we will
address his arguments on our own motion. 

(a) (2021).

                                        426
Cite as 

 (BIA 2022)                         Interim Decision #4034




the in absentia removal order was rescinded and proceedings were reopened
because the noncitizen did not receive the notice of hearing. In reopened
proceedings, the Immigration Judge relied on Matter of Camarillo, 

 (BIA 2011), abrogated by Pereira, 

, to conclude
that service of the notice to appear had triggered the so-called “stop-time”
rule under section 240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A)
(2018). The “stop-time” rule provides that service of “a notice to appear
under section 239(a)” ends a noncitizen’s accrual of continuous residence
and physical presence in the United States for purposes of cancellation of
removal. Section 240A(d)(1)(A) of the Act. In Matter of Camarillo, we held
that the service of a notice to appear triggers the “stop-time” rule, even if the
notice to appear does not include the date and time of the initial hearing.
Because the noncitizen in Pereira had not accrued the requisite period of
continuous presence following service of the notice to appear, the
Immigration Judge denied his application for cancellation of removal. We
dismissed the noncitizen’s appeal.
    The Supreme Court’s decision in Pereira abrogated Matter of Camarillo,
holding that a noncompliant notice to appear which does not specify the time
or place of the initial removal hearing is not “a notice to appear under section
239(a)” and cannot trigger the “stop-time” rule. The Court left open whether
a statutorily compliant notice of hearing could cure a noncompliant notice to
appear by separately providing the required time and place information and
trigger the “stop-time” rule.
    Following Pereira, this Board issued Matter of Bermudez-Cota,
addressing the threshold issue of whether jurisdiction vested with the
Immigration Court based on a noncompliant notice to appear that does not
specify the time or place of the initial hearing. As noted, we distinguished
Pereira in Matter of Bermudez-Cota, noting that the “dispositive question”
before the Court in Pereira “was whether a notice to appear that does not
specify the time and place at which proceedings will be held . . . triggers the
‘stop-time’ rule for purposes of cancellation of removal.” 27 I&N Dec.
at 443 (citation omitted). We held that a noncompliant notice to appear
vested an Immigration Court with jurisdiction over a case, and thus Pereira
did not require termination, so long as a noncitizen was later served with
a notice of hearing that complies with the requirements of section 239(a)(2)
and specifies the time and place of the removal hearing.
    Most circuits have agreed with our holding in Matter of Bermudez-Cota,
although some have treated the regulations governing the docketing of a case
before an Immigration Judge through the filing of a notice to appear as
a claim-processing rule. See Matter of Arambula-Bravo, 

,
391–92 & n.3 (BIA 2021) (collecting cases). The Board clarified these
divergent views in Matter of Rosales Vargas and Rosales Rosales, 

Cite as 

 (BIA 2022)                                  Interim Decision #4034




Dec. 745, 753 (BIA 2020), recognizing that certain rules under the
regulations for initiating proceedings are “internal docketing or
claim-processing rule[s]” that do not “serve to limit subject matter
jurisdiction” of the Immigration Courts.
    In the in absentia context, the Board held in Matter of Pena-Mejia,

 (BIA 2019), that an Immigration Judge may enter an
in absentia order of removal “if a written notice containing the time and place
of the hearing was provided either in a notice to appear under section
239(a)(1), or in a subsequent notice [of hearing specifying] the time and
place of the hearing pursuant to section 239(a)(2).” Accord Matter of
Miranda-Cordiero, 

 (BIA 2019). In reaching this
holding, the Board relied on the disjunctive wording of section 240(b)(5)(A),
decisions from the jurisdictional context, like Matter of Bermudez-Cota, and
the relevant regulations, which do not require a notice to appear to include
time and place information to vest jurisdiction with an Immigration Court.
In a companion case, Matter of Miranda-Cordiero, we interpreted section
240(b)(5)(B) and held that rescinding an in absentia removal order was not
required if a noncitizen failed to provide an address where a notice of hearing
could be sent pursuant to section 239(a)(1)(F) of the Act, regardless of
whether the notice to appear specified the time and place of the hearing. In
both Matter of Pena-Mejia and Matter of Miranda-Cordiero, we viewed the
jurisdictional issue and when it is appropriate to enter an in absentia removal
order as distinct from the “stop-time” rule issue considered in Pereira,
because the latter is tethered to “specific language in the ‘stop-time’
provisions of section 240A(d)(1) of the Act, while the [former are] governed
by the rules regarding failure to appear in section 240(b)(5)(A), as well as
the regulations applicable to that statute.” Matter of Pena-Mejia, 27 I&N
Dec. at 550; see also Matter of Miranda-Cordiero, 27 I&N Dec. at 553.
    To answer the question left open in Pereira, namely, whether a compliant
notice of hearing could cure a noncompliant notice to appear by separately
providing time and place information and trigger the “stop-time” rule, the
Board issued Matter of Mendoza-Hernandez and Capula-Cortes, 

 (BIA 2019), overruled in part by Matter of M-F-O-, 

, 416 n.13 (BIA 2021). In that case, we answered this question in the
affirmative, holding that “where a notice to appear does not specify the time
or place of an . . . initial removal hearing, . . . service of a notice of hearing
containing that information perfects the deficient notice to appear . . . and
ends the . . . period of continuous residence or physical presence” pursuant
to the “stop-time” rule. 

. 2 Our holding in Matter of
2
   We likewise held that service of a noncompliant notice to appear ends the accrual of
physical presence for purposes of voluntary departure so long as a noncitizen is later served
with a notice of hearing in Matter of Viera-Garcia and Ordonez-Viera, 

,

                                            428
Cite as 

 (BIA 2022)                                Interim Decision #4034




Mendoza-Hernandez and Capula-Cortes generated a circuit split, 3 which the
Supreme Court resolved in Niz-Chavez, 141 S. Ct. at 1479–80.
    In that case, the Court held that a notice to appear must be a single
document containing all the information specified in section 239(a)(1) of the
Act—including the time and place of the noncitizen’s removal hearing—
before it will trigger the “stop-time” rule, even if the noncitizen is later served
with a notice of hearing specifying this time and place information. After
Niz-Chavez, the Board revisited whether a noncompliant notice to appear
vests an Immigration Court with jurisdiction.                   See Matter of
Arambula-Bravo, 28 I&N Dec. at 391–92. Consistent with every circuit
court of appeals that has considered the question, 4 we held that Niz-Chavez
does not alter our prior conclusions in Matter of Bermudez-Cota and Matter
of Rosales Vargas and Rosales Rosales that a noncompliant notice to appear
vests jurisdiction with an Immigration Judge so long as a respondent is later
served with a notice of hearing specifying the time and place of the hearing,
and we followed our holdings in those decisions.




226 (BIA 2021). However, we later overruled that holding to the extent it was inconsistent
with Niz-Chavez and adopted the holding from the governing circuit. See Matter of
M-F-O-, 28 I&N Dec. at 416–17 (overruling Matter of Viera-Garcia and Ordonez-Viera
and applying nationwide the standard announced in Posos-Sanchez v. Garland, 

 (9th Cir. 2021)).
3
    Compare Yanez-Pena v. Barr, 

 (5th Cir. 2020) (deferring to our
holding in Mendoza-Hernandez and Capula-Cortes), vacated, 

 (2021)
(vacating and remanding based on Niz-Chavez), and Garcia-Romo v. Barr, 

,
196–97 (6th Cir. 2019) (concluding that the statute is unambiguous and agreeing with our
holding), vacated, 

 (2021) (vacating and remanding in light of Niz-Chavez),
with Banuelos v. Barr, 

 (10th Cir. 2020) (concluding that the
“stop-time” rule requires a single, complete notice to appear, not a “combination of
documents”), Guadalupe v. Att’y Gen. U.S., 

, 164–66 (3d Cir. 2020) (same),
and Lopez v. Barr, 

, 399–400 (9th Cir. 2019) (same), remanded, 

(9th Cir. 2021) (en banc) (remanding based on Niz-Chavez).
4
    See Chavez-Chilel v. Att’y Gen. U.S., 

, 142–44 & n.7 (3d Cir. 2021); United
States v. Castillo-Martinez, 

, 913–14 & n.3 (1st Cir. 2021); Chery v. Garland,

, 986–87 (2d Cir. 2021); Ramos Rafael v. Garland, 

, 800–01 (6th
Cir. 2021); Tino v. Garland, 

, 709 n.2 (8th Cir. 2021) (per curiam); United
States v. Bastide-Hernandez, 

 (9th Cir.) (agreeing that a noncompliant
notice to appear could vest jurisdiction), vacated and reh’g en banc granted, 

(9th Cir. 2021); Maniar v. Garland, 

, 242 & n.2 (5th Cir. 2021); cf. De La
Rosa v. Garland, 

, 687–88 (7th Cir. 2021) (citing Niz-Chavez in support of its
holding that a noncompliant notice to appear violates a claim-processing rule, not
a jurisdictional requirement).

                                           429
Cite as 

 (BIA 2022)                             Interim Decision #4034




                                III. ANALYSIS
                                 A. Termination

    After the respondent was served with a noncompliant notice to appear, he
was served with a compliant notice of hearing specifying the time and place
of his hearing. Accordingly, our recent precedential decision in Matter of
Arambula-Bravo, 28 I&N Dec. at 390–92, forecloses the respondent’s
argument that his proceedings should be terminated for lack of jurisdiction.
The Immigration Judge therefore had jurisdiction over these removal
proceedings, and neither Pereira nor Niz-Chavez require termination. Id.
at 391; see also United States v. Castillo-Martinez, 

, 913–14
& n.3 (1st Cir. 2021). We will therefore deny the respondent’s motion to
terminate.

                         B. In Absentia Removal Order

    The only remaining issue is whether we should rescind the Immigration
Judge’s in absentia order of removal because the respondent did not receive
sufficient notice of his removal hearing. Section 240(b)(5)(A) of the Act
provides that a respondent “shall be ordered removed in absentia” if a
respondent has been provided with “written notice required under paragraph
(1) or (2) of section 239(a)” of the Act. In turn, section 240(b)(5)(C)(ii)
provides, in relevant part, that an in absentia order of removal “may be
rescinded” if a respondent “did not receive notice in accordance with
paragraph (1) or (2) of section 239(a).” 5 As noted, we held that in light of
the statute’s use of the disjunctive term “or,” an in absentia order of removal
may be entered and need not be rescinded if “a written notice containing the
time and place of the hearing was provided either in a notice to appear under
section 239(a)(1) or in a subsequent notice of the time and place of the
hearing pursuant to section 239(a)(2).” Matter of Pena-Mejia, 27 I&N Dec.
at 548; accord Matter of Miranda-Cordiero, 27 I&N Dec. at 553.
    The respondent argues that we should withdraw from our decisions in
Matter of Pena-Mejia and Matter of Miranda-Cordiero in light of
Niz-Chavez. He contends we should rescind his in absentia removal order
because he did not receive sufficient notice under sections 240(b)(5)(A) and
(C)(ii) of the Act, even though he was served a notice of hearing specifying
the time and place of the hearing at which he was ordered removed in

5
   Congress added both provisions to the Act in 1996, when it added sections 239(a)(1)
and (2) and the “stop-time” rule under section 240A(d)(1) to the Act. See Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, 

Div. C, § 304(a)(3), 

-546, 3009-587.

                                         430
Cite as 

 (BIA 2022)                                 Interim Decision #4034




absentia and the consequences of failing to appear for this hearing. We
disagree and will reaffirm our holdings in Matter of Pena-Mejia and Matter
of Miranda-Cordiero.

                                     i. Niz-Chavez

    Unlike the provisions at issue in Niz-Chavez, the ordinary meaning of the
in absentia provisions at sections 240(b)(5)(A) and (C)(ii) of the Act and their
place in the overall statutory scheme reflect that rescinding the respondent’s
in absentia order of removal is not warranted. 141 S. Ct. at 1480, 1482
(stating that in resolving a “dispute over a statute’s meaning, [we] normally
seek[] to afford the law’s terms their ordinary meaning at the time Congress
adopted them” and look to the “statutory structure and history”).
    In support of its holding, the Supreme Court in Niz-Chavez relied on the
fact that section 239(a)(1) of the Act defines “written notice” for purposes of
that provision as “a ‘notice to appear.’” Id. at 1480 (emphasis added)
(quoting section 239(a)(1) of the Act). The Court found it significant that
Congress used the indefinite article “‘a’ . . . outside the defined term (‘notice
to appear’) [to] modif[y] the entire definition” of “notice to appear” under
section 239(a)(1), thereby requiring “‘a’ written notice containing all the
required information” listed under that provision, including the time and
place of proceedings. Id. The Court also observed that section 240A(d)(1),
the provision that “creates the stop-time rule, . . . separately speaks of ‘a’
notice to appear.” Id. at 1481. Accordingly, the Court concluded that
Congress meant the “stop-time” rule to be triggered by “‘a’ single
document”—namely, a notice to appear specifying all of the information
required under section 239(a)(1), including the time and place of the
noncitizen’s removal hearing. Id.
    In contrast to the provisions discussed in Niz-Chavez, the in absentia
provisions at issue here do not use an indefinite or definite article (“a” or
“the”) to modify the terms “written notice” and “notice” under section
239(a)(1) or (2). Rather, section 240(b)(5)(A) of the Act mandates the entry
of an in absentia order of removal in certain cases where a respondent fails
to appear “after written notice required under paragraph (1) or (2) of section
239(a) has been provided.” (Emphasis added.) 6 And section 240(b)(5)(C)(ii)

6
   We note the definite article “the” appears before two subsequent references to “written
notice” in section 240(b)(5)(A), to specify that a noncitizen cannot be ordered removed
absent evidence that he or she was served with “the written notice” at the most recent
address provided. We read these latter uses of the article “the” to modify “written notice”
as referring back to the unmodified, introductory phrase “written notice,” which describes
notice provided pursuant to either a notice to appear under section 239(a)(1) or a notice of
hearing under section 239(a)(2). See Yates v. United States, 

, 543 (2015)

                                           431
Cite as 

 (BIA 2022)                                  Interim Decision #4034




of the Act provides that an in absentia order may be rescinded upon a motion
filed “at any time” demonstrating that a respondent “did not receive notice in
accordance with paragraph (1) or (2) of section 239(a).” (Emphasis added.)
    We conclude that unlike the “stop-time” rule at section 240A(d)(1),
sections 240(b)(5)(A) and (C)(ii) do not use the terms “written notice” or
“notice” to describe a discrete act of notice coming in the form of a single
document, namely, a notice to appear. See Niz-Chavez, 141 S. Ct. at 1481
(observing that had Congress been indifferent about whether notice should
come in a single document or multiple documents under the “stop-time” rule,
it would have omitted a definite or indefinite article before the term “notice”);
cf. Chery v. Garland, 

, 987 (2d Cir. 2021) (distinguishing
Niz-Chavez in the jurisdictional context because the governing regulations
refer to written notice unmodified by an indefinite article, whereas the
“stop-time” rule requires “‘a’ singular written notice” (citation omitted)).
    Instead, sections 240(b)(5)(A) and (C)(ii) respectively provide that
“written notice” or “notice” may be provided under, or in accordance with,
either “paragraph (1) or (2) of section 239(a).” (Emphasis added.)
Accordingly, an in absentia order of removal may be entered and need not be
rescinded “if a written notice containing the time and place of the hearing
was provided either in a notice to appear under section 239(a)(1) or in
a subsequent notice of the time and place of the hearing pursuant to section
239(a)(2).” Matter of Pena-Mejia, 27 I&N Dec. at 548; accord Matter of
Miranda-Cordiero, 27 I&N Dec. at 553. 7 A notice of hearing under section
239(a)(2), though similar to a notice to appear under section 239(a)(1), must
specify “the new time or place of the proceedings, and . . . the consequences
under section 240(b)(5) of failing . . . to attend such proceedings.” Section
239(a)(2)(i)–(ii) of the Act. 8

(relying “on the principle of noscitur a sociis—a word is known by the company it keeps—
to ‘avoid ascribing to one word a meaning . . . inconsistent with its accompanying words’”
(citation omitted)).
7
    Although we did not specifically address section 240(b)(5)(C)(ii) in Matter of
Pena-Mejia or Matter of Miranda-Cordiero, to the extent that provision contains identical
language to section 240(b)(5)(A), we ascribe the same meaning to that language. See
Pereira, 

 (“[I]t is a normal rule of statutory construction that identical
words used in different parts of the same act are intended to have the same meaning.”
(citation omitted)).
8
    We do not read Niz-Chavez as precluding the service of a compliant notice of hearing
in the absence of a compliant notice to appear. Although the Court stated that a compliant
notice of hearing could not trigger the “stop-time” rule in the absence of a compliant notice
to appear, Niz-Chavez, 

, it did not address the specific issue before us:
whether a compliant notice of hearing could supply a respondent with sufficient “written
notice” to trigger the in absentia provisions of the Act, even in the absence of a compliant
notice to appear.

                                            432
Cite as 

 (BIA 2022)                               Interim Decision #4034




    It makes sense that “written notice” and “notice,” for purposes of sections
240(b)(5)(A) and (C)(ii), respectively, may come in the form of either
a statutorily compliant notice to appear or a compliant notice of hearing
because the statute requires both documents to inform a respondent of:
(1) the time and place of the hearing at which he or she could be ordered
removed; and (2) that the respondent could be ordered removed in absentia
if he or she fails to appear for that hearing. Compare sections
239(a)(1)(G)(i)–(ii) of the Act, with sections 239(a)(2)(A)(i)–(ii) of the Act.
Once it is shown that a respondent has received both pieces of information
and fails to appear, an Immigration Judge must, provided other requirements
have been met, 9 enter an in absentia removal order. See 

(c)(2) (2021) (stating that a noncitizen shall be ordered removed in
absentia if, among other things, it is established that he or she received
“written notice of the time and place of proceedings and written notice of the
consequences of failure to appear”).
    In other words, a respondent may be ordered removed in absentia if he or
she receives a statutorily compliant notice to appear under section 239(a)(1)
specifying the time and place of the hearing at which he or she may be
ordered removed and the consequences of failing to appear for that hearing.
However, once it has been shown that a respondent has been properly served
with a statutorily compliant notice of hearing under section 239(a)(2),
notifying him or her of this information, the respondent has received
sufficient “written notice” to trigger the in absentia provision at section
240(b)(5)(A), even in the absence of a statutorily compliant notice to appear.
In such a case, moreover, rescinding the in absentia order for lack of “notice”
under section 240(b)(5)(C)(ii) of the Act would not be warranted. See

(b)(4)(ii) (2021) (providing that an in absentia order may
be rescinded upon a showing that the respondent “did not receive notice in
accordance with sections 239(a)(1) or (2) of the Act”).
    The United States Court of Appeals for the Sixth Circuit reached the same
conclusion in Santos-Santos v. Barr, 

 (6th Cir. 2019). In that
case, even though the noncitizen had not received “written notice” under
section 239(a)(1) because his notice to appear “did not include the date and
time of the removal proceeding,” the court concluded he received sufficient
“written notice” to trigger section 240(b)(5)(A) since he was served with
a statutorily compliant notice of hearing under section 239(a)(2), which
specified this information. 

. Thus, the court found that rescinding

9
   In addition to demonstrating that the respondent received “written notice” of the time
and place of his hearing and the consequences of failing to appear, the DHS must have
shown by clear and convincing evidence that he was removable as charged in the notice to
appear before he could be ordered removed in absentia. Section 240(b)(5)(A) of the Act;

(c)(1) (2021).

                                          433
Cite as 

 (BIA 2022)                                    Interim Decision #4034




the noncitizen’s in absentia order for lack of “notice” under section
240(b)(5)(C)(ii) of the Act was not warranted.
    We therefore hold that the respondent received sufficient “written notice”
to support the entry of an in absentia order of removal under section
240(b)(5)(A), and that order need not be rescinded for lack of “notice” under
section 240(b)(5)(C)(ii) of the Act, because, even though he was served with
a noncompliant notice to appear that did not specify the time or place of his
removal hearing, he was properly served with a statutorily compliant notice
of hearing under section 239(a)(2) specifying this information. Accordingly,
we will deny his motion to reopen and rescind the in absentia removal order.

              ii. Overall Statutory Context and Regulatory History

    Our holding is consistent with the place of sections 240(b)(5)(A) and
(C)(ii) in the overall statutory scheme as well as the relevant regulatory
history. As noted, the “stop-time” rule denotes a discrete moment in time
when a respondent is served with notice and stops accruing continuous
presence or residence for purposes of cancellation of removal. However,
sections 239(a)(1), (2), 240(b)(5)(A), and (C)(ii) of the Act, when read
together, contemplate an ongoing process. In the normal course of
adjudicating a case, once subject matter has vested with an Immigration
Court through the service of the notice to appear—even if that notice to
appear lacks time or place information—an Immigration Judge will continue
to apprise the parties of new hearing dates by serving them with notices of
hearing under section 239(a)(2). See Matter of Arambula-Bravo, 28 I&N
Dec. at 389–92. For any given proceeding, there may be multiple hearings
necessitating the service of multiple notices of hearing under section
239(a)(2). An in absentia removal order may be entered at any time during
this ongoing process, and that order can be rescinded “at any time” if
a respondent demonstrates that he or she did not receive the latest notice
pursuant to either a compliant notice to appear under section 239(a)(1) or
a section 239(a)(2) notice of hearing. Section 240(b)(5)(C)(ii) of the Act. 10

10
   By contrast, section 240(b)(7) of the Act, the provision most analogous to the ones at
issue here, does not describe an ongoing process. It instead explicitly references a single,
discrete moment in time when a noncitizen receives written and oral notice of the time and
place of their hearing and the consequences of failing to appear. That provision bars certain
noncitizens ordered removed in absentia from applying for discretionary forms of relief if
“at the time of the notice described in paragraph (1) or (2) of section 239(a), [the noncitizen]
was provided oral notice . . . of the time and place of the proceedings and of the
consequences . . . of failing . . . to attend [the] proceeding.” Section 240(b)(7) of the Act
(emphasis added); cf. Matter of Alyazji, 

 (BIA 2011) (holding that
the phrase “the date of admission” in section 237(a)(2)(A)(i) of the Act, 8 U.S.C.

                                             434
Cite as 

 (BIA 2022)                                Interim Decision #4034




    Moreover, prior to the enactment of sections 239(a)(1), (2), 240(b)(5)(A),
and (C)(ii), the governing regulations provided that Immigration Courts were
solely responsible for scheduling cases and “providing notice of the time,
place, and date of the hearing to the government and [noncitizen].” 

 (1996). After these provisions were enacted, the pertinent regulation
was revised to state that in removal proceedings, the legacy Immigration and
Naturalization Service—now the DHS—was responsible for providing, in
a notice to appear, “the time, place and date of the initial removal hearing,
where practicable.” Inspection and Expedited Removal of Aliens; Detention
and Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 

, 10,332 (Mar. 6, 1997) (codified at 

(b) (1998)). 11 However, where the DHS does not provide this
information in the notice to appear, “the Immigration Court [is] responsible
for scheduling the initial removal hearing and providing notice to [the
parties] of the time, place, and date of the hearing.” 

(b)
(2021). This regulation additionally provides that an Immigration Court
must provide “written notice” specifying a new or changed “time and place
of the proceeding and the consequences under section 240(b)(5) . . . of failing
to . . . to attend such proceeding.” 

 Thus, the relevant regulatory history
supports our conclusion that following the enactment of sections 239(a)(1),
(2), 240(b)(5)(A), and (C)(ii), either the DHS or the Immigration Court may
schedule the initial removal hearing and notify the respondent of the time and
place of that hearing, and the consequences of failing to appear, through
either a notice to appear under section 239(a)(1) or a notice of hearing under
section 239(a)(2) of the Act, respectively.
    We also believe our reading of sections 240(b)(5)(A) and (C)(ii)
harmonizes these provisions with the case law from this Board and most
circuit courts holding that a noncompliant notice to appear vests an
Immigration Judge with jurisdiction to order a noncitizen removed. Under
this case law, a noncitizen who receives a noncompliant notice to appear, but
is later served with a compliant notice of hearing specifying the time and
place of the hearing, can be ordered removed if he appears for the hearing
specified in the hearing notice. See, e.g., Matter of Arambula-Bravo, 28 I&N
Dec. at 390–92. However, under the respondent’s reading of sections
240(b)(5)(A) and (C)(ii), that very same noncitizen would be shielded from
removal if he failed to appear. This would be the case even if the noncitizen
had previously appeared before the Immigration Judge pursuant to a prior
notice of hearing. We do not believe the respondent’s reading is consistent

§ 1227(a)(2)(A)(i) (2006), “naturally connotes a single date” (emphasis added) (citation
omitted)).
11
   This regulation was later renumbered as 

(b) (2021), which is identical
to § 3.18(b) in all material respects.

                                           435
Cite as 

 (BIA 2022)                                Interim Decision #4034




with binding precedents from this Board and the First Circuit, in whose
jurisdiction this case arises, regarding the Immigration Court’s subject matter
jurisdiction. See id.; see also Castillo-Martinez, 16 F.4th at 913–14 & n.3.
But we believe our reading is.
    Finally, we recognize that the Fifth Circuit recently issued a decision
reaching a contrary conclusion. See Rodriguez v. Garland, 

,
354–56 (5th Cir. 2021). 12 In that case, the court found that a respondent did
not receive “notice” of his removal hearing within the meaning of section
240(b)(5)(C)(ii) where he received a noncompliant notice to appear but was
later served with a compliant notice of hearing. The court reasoned that
section 240(b)(5)(C)(ii) requires “notice” under “section 239(a),” which
Niz-Chavez held must be a single document in the form of a notice to appear.
However, the court based this reasoning on a recitation of section
240(b)(5)(C)(ii) that omitted the disjunctive phrase “paragraph (1) or (2)”
from the statute and relied solely on a reference to “section 239(a).” See 

at 354–55 (stating that this provision provides that “an in absentia removal
order may be rescinded ‘upon a motion to reopen filed at any time if the alien
demonstrates that the alien did not receive notice in accordance with
[

(a)]’” (alteration in original) (quoting section
240(b)(5)(C)(ii) of the Act)).
    In any event, Rodriguez does not apply here because this case arises in
the First Circuit. In our view, our analysis and interpretation of sections
240(b)(5)(A) and (C)(ii) are consistent with the relevant statutory language,
including its ordinary meaning and place in the overall statutory scheme, our
prior holdings in Matter of Pena-Mejia and Matter of Miranda-Cordiero,
which we reaffirm, the governing regulations and regulatory history, and the
case law relating to subject matter jurisdiction.           Accordingly, the
respondent’s motions to terminate his removal proceedings and to reopen his
proceedings and rescind the in absentia order are denied.
    ORDER: The respondent’s motion to terminate is denied.
    FURTHER ORDER: The respondent’s motion to reopen his
proceedings and rescind the in absentia order of removal is denied.




12
   The court also recently issued Spagnol-Bastos v. Garland, 

, 806–07
(5th Cir. 2021) (per curiam), in which it held, consistent with our decision in Matter of
Miranda-Cordiero, that rescinding an in absentia order is not warranted where a noncitizen
who was served with a noncompliant notice to appear failed to provide an address where
a notice of hearing could be sent pursuant to section 239(a)(1)(F) of the Act.

                                          436