PENA-MEJIA

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546
Matter of Lourdes Suyapa PENA-MEJIA, Respondent
Decided May 22, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Neither rescission of an in absentia order of removal nor termination of the proceedings
is required where an alien did not appear at a scheduled hearing after being served with a
notice to appear that did not specify the time and place of the initial removal hearing, so
long as a subsequent notice of hearing specifying that information was properly sent to the
alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Daniel A. Meyer, Esquire, Jackson Heights, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Graham, Assistant
Chief Counsel
BEFORE: 	Board Panel: 	GUENDELSBERGER, GRANT, and KENDALL CLARK,
Board Members
GRANT, Board Member:
This matter was last before us on July 18, 2018, when we dismissed the
respondent’s appeal from an Immigration Judge’s March 5, 2018, decision
denying a motion to reopen and rescind her in absentia order of removal. The
respondent has now filed a motion to reopen and terminate the proceedings.
The Department of Homeland Security (“DHS”) opposes the motion. 	The
motion will be denied.
The respondent is a native and citizen of Honduras who entered the
United States on August 14, 2002, without being admitted or paroled. 	At
that time, she was personally served with a Form I-862 (Notice to Appear)
ordering her to appear for a hearing before an Immigration Judge in
Harlingen, Texas, at a date and time to be set. 	On September 5, 2002, the
Harlingen Immigration Court sent a notice of hearing to the respondent at
the address she provided, notifying her that a hearing was scheduled for
October 31, 2002, at 9:00 a.m. 	When the respondent did not appear at that
hearing, the Immigration Judge ordered her removed in absentia.
On February 20, 2018, the respondent filed a motion to reopen with the
Immigration Judge, stating that she did not receive the notice of hearing. The
Immigration Judge found that the notice of hearing that was sent to the
respondent by regular mail at the address she provided constituted proper
notice under section 239(a) of the Immigration and Nationality Act, 8 U.S.C.

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§ 1229(a) (2012), and that it was not returned to the Immigration Court as
undeliverable. The Immigration Judge also determined that the respondent
did not rebut the presumption of delivery of the notice of hearing based on
the factors set forth in Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008).
He therefore concluded that she did not establish that she had not received
notice of her hearing, and he denied her motion to reopen and rescind the in
absentia order of removal. We upheld the Immigration Judge’s findings and
dismissed the respondent’s appeal.
In her current motion, the respondent relies on the Supreme Court’s
decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), to argue that her
proceedings should be reopened and her removal order rescinded. Because
her notice to appear did not specify the date and time of her hearing, the
respondent claims that it does not constitute a valid notice to appear, so
jurisdiction over her case did not vest with the Immigration Court. 	She
therefore contends that her removal proceedings should be terminated.
The Supreme Court in Pereira focused on the question whether a notice
to appear that lacks a specific time and place of hearing triggers the
“stop-time” rule for purposes of cancellation of removal under section
240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A) (2012). Pereira, 138
S. Ct. at 2113 (stating that the question before the Court was “narrow”). It
did not hold that such a notice to appear is invalid for all purposes, including
for initiating removal proceedings. 	Matter of Bermudez-Cota, 27 I&N Dec.
441 (BIA 2018); see also Matter of Mendoza-Hernandez and Capula-Cortes,
27 I&N Dec. 520, 523–24 (BIA 2019).
The Board in Matter of Bermudez-Cota addressed whether 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 if a notice of hearing
that includes that information is subsequently sent to the alien. Relying on
circuit court precedent, we held that such a “two-step notice process” is
sufficient to meet the statutory notice requirements in section 239(a) of the
Act and vest jurisdiction in the Immigration Judge. 	Id. at 445–47 (citing
Popa v. Holder, 571 F.3d 890, 895–96 (9th Cir. 2009); Gomez-Palacios
v. Holder, 560 F.3d 354, 359 (5th Cir. 2009); Dababneh v. Gonzales, 471
F.3d 806, 809–10 (7th Cir. 2006); Haider v. Gonzales, 438 F.3d 902, 907
(8th Cir. 2006)). We discussed the Supreme Court’s decision in Pereira and
determined that it is distinguishable and did not address this issue. Matter of
Bermudez-Cota, 27 I&N Dec. at 443, 447. Several circuit courts have agreed
with our holding, concluding that Pereira does not require a different result.
Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019); Karingithi
v. Whitaker, 913 F.3d 1158, 1160–62 (9th Cir. 2019); Leonard v. Whitaker,
746 F. App’x 269 (4th Cir. 2018) (per curiam); Hernandez-Perez v. Whitaker,
911 F.3d 305, 312–15 (6th Cir. 2018).

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The 	regulations 	at 	8 	C.F.R. 	§ 	1003.14(a) 	(2018) 	provide 	that
“[j]urisdiction 	vests, 	and 	proceedings 	before 	an 	Immigration 	Judge
commence, when a charging document is filed with the Immigration Court.”
Furthermore, although 8 C.F.R. § 1003.15(c) (2018) requires that a notice to
appear must provide certain information, the date and time of the hearing are
not included. In any event, § 1003.15(c) states that failure to provide any of
the enumerated items “shall not be construed as affording the alien any
substantive or procedural rights.” Pursuant to the regulations, the notice to
appear served on the respondent and filed with the Immigration Court
satisfied the regulatory definition of a “notice to appear” and vested
jurisdiction in the Immigration Court. See Matter of Bermudez-Cota, 27 I&N
Dec. at 444–45; see also Banegas Gomez, 922 F.3d at 100–12. The Supreme
Court’s decision in Pereira does not change this outcome in the respondent’s
proceedings.
Furthermore, rescission of the respondent’s in absentia order of removal
is not mandated by Pereira. In contrast to the provisions of the Act at issue
in Pereira, the statute regarding the entry of an in absentia order provides
that “[a]ny alien who, after written notice required under paragraph (1) or (2)
of section 239(a) has been provided to the alien or the alien’s counsel
of 	record, 	does 	not 	attend 	a 	proceeding 	under 	this 	section” 	may 	be
ordered removed in absentia. 	Section 240(b)(5)(A) of the Act, 8 U.S.C.
§ 1229a(b)(5)(A) (2012) (emphasis added). 	Because this statute uses the
disjunctive term “or” rather than the conjunctive “and,” an in absentia order
of removal may be entered 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).
In the respondent’s case, the notice to appear, which was personally
served on her, advised her that she “must notify the Immigration Court
immediately” if she changed her address during proceedings. See Matter of
G-Y-R-, 23 I&N Dec. 181, 185–88 (BIA 2001) (discussing the statutory
address obligations in section 239(a)(1)(F) of the Act). 	The Immigration
Court subsequently sent her a notice of hearing pursuant to section 239(a)(2)
of the Act at the address she had provided. 	The notice of hearing was not
returned to the Immigration Court as undeliverable. The respondent does not
deny that the notice of hearing was therefore properly sent.1
1 	Unlike the respondent, the alien in Pereira provided a correct address to the DHS and
established that he did not receive the notice of hearing, so his motion to reopen was
granted by the Immigration Judge. With her prior appeal, the respondent submitted her
own statement and those from her family members, claiming that the address she provided
to immigration officials was her sister’s address, where she lived “for a few months” before

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Because the notice of hearing was sent to the respondent subsequent to
the personal service of her notice to appear, her case falls within Matter of
Bermudez-Cota as to the fundamental question of the Immigration Court’s
jurisdiction. Furthermore, it is distinguishable from Pereira because she did
not apply for cancellation of removal and she was ordered removed by the
Immigration Judge for reasons unrelated to the operation of the “stop-time”
rule. 	For these reasons, we conclude that the Supreme Court’s decision in
Pereira does not require that the respondent’s in absentia order of removal
be rescinded or that her proceedings be terminated.
Our holding is supported by the circuit courts that have considered the
implications of Pereira in the context of in absentia proceedings. 	In
Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 (5th Cir. 2018), the United
States Court of Appeals for the Fifth Circuit, in whose jurisdiction this case
arises, upheld our decision declining to reopen or rescind an in absentia order
of removal where the alien did not receive a notice of hearing as a result of
his failure to provide a correct address to the Immigration Court. The court
also noted that because the Supreme Court’s focus in Pereira was on the
narrow question of the operation of the “stop-time” rule for cancellation of
removal, it did not affect the court’s holding in Gomez-Palacios that an in
absentia removal order should not be rescinded where lack of notice resulted
from the alien’s failure to update his mailing address. Id. at 148 & n.1 (noting
that since cancellation and reopening are “entirely different,” in cases
involving reopening “Pereira’s rule regarding cancellation is inapplicable”);
see also Fuentes-Pena v. Barr, 917 F.3d 827, 830 n.2 (5th Cir. 2019).
The Sixth Circuit also addressed a situation involving an in absentia order
of removal in Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019). The alien
there argued that under Pereira, his notice to appear, which did not
specify the date and time of the hearing, did not vest jurisdiction in the
Immigration Court. Rejecting that assertion, the court found that Pereira is
distinguishable because it “(1) dealt with whether the narrow ‘stop-time’ rule
can be triggered by [a notice to appear] omitting the time and place of the
initial hearing, and (2) addressed two statutory provisions distinct from the
moving. 	She also asserted that neither she nor her sister received the notice from the
Immigration Court. 	In our July 18, 2018, decision, we declined to consider the newly
submitted evidence and found that, in any case, it was not sufficiently material to warrant
a remand for its consideration.
To the extent the respondent moved and did not fulfill her obligation under section
239(a)(1)(F) of the Act to notify the Immigration Court of her address change, her in
absentia removal proceedings were appropriate under section 240(b)(5)(A) of the Act,
because section 240(b)(5)(B) provides that no written notice of hearing is required under
those circumstances. See also 8 C.F.R. §§ 1003.15(d), 1003.26(c)–(d) (2018). As noted
above, section 240(b)(5)(A) of the Act refers to written notice required under either section
239(a)(1) or (2).

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regulations at issue.” Id. at 489. The court also stated that the statute “does
not address jurisdictional prerequisites” and that the regulations governing
when 	and 	how 	jurisdiction 	vests 	with 	the 	Immigration 	Judge 	do 	not
require references to the time and place of the hearing to vest jurisdiction. Id.
at 490–91. 	Relying on section 240(b)(5)(A) of the Act, the court held that
rescission of the alien’s in absentia order of removal was not warranted
because the notice of hearing mailed to him at his listed address met the
requirements of section 239(a)(2) regarding notice of the time and place of
the hearing. Id. at 491–92; see also Molina-Guillen v. U.S. Att’y Gen., 758
F. App’x 893, 898–99 (11th Cir. 2019) (per curiam) (distinguishing Pereira
where the alien received a notice of hearing supplying the missing date and
time information, which together with the notice to appear “fulfilled the
notice requirements” in section 239(a)(1) of the Act).
The Supreme Court’s ruling in Pereira rested on the specific language
in the “stop-time” provisions of section 240A(d)(1) of the Act, while the
respondent’s case is governed by the rules regarding failure to appear in
section 240(b)(5)(A), as well as the regulations applicable to that statute. The
respondent’s arguments are thus analogous to those presented in Matter of
Bermudez-Cota and fail for a similar reason—specific provisions of the Act
that are distinct from the “stop-time” rule are at issue here and are dispositive
in this case. 	Because we agree with the circuit courts that have held that
Pereira is inapplicable outside of the narrow context of the “stop-time” rule,
and with the Immigration Judge that the respondent received proper notice
of her hearing, we conclude that rescission of her in absentia order of removal
and termination of her proceedings are not warranted. 	We also decline to
reopen the proceedings in the exercise of our discretion under 8 C.F.R.
§ 1003.2(a) (2018). Accordingly, the respondent’s motion will be denied.
ORDER: The motion to reopen is denied.