The Fifth Circuit churns out important immigration opinions at a staggering clip. This post hits the high points of a few recent examples.
Pierre-Paul v. Barr, No. 18-60275 (5th Cir. July 18, 2019) (Smith, Wiener, Elrod)
This case involved an appeal from a Board of Immigration Appeals decision affirming an IJ’s deportation order. Pierre-Paul argued:
- The IJ lacked jurisdiction because the notice to appear in his case didn't include the date and time of his initial hearing;
- the BIA erred in denying his application for asylum, withholding of removal, and cancellation of removal; and
- the IJ violated his due process rights.
The Court rejected Pierre-Paul's jurisdictional arguments and held that it lacked jurisdiction to review the denial of asylum, withholding of removal, and cancellation of removal. Accordingly, it denied the petition in part and dismissed in part.
The Court rejected Pierre-Paul's jurisdictional argument for three independent reasons:
First, Pierre-Paul’s notice to appear was not defective. Second, assuming arguendo that the notice to appear were defective, the immigration court cured the defect by subsequently sending a notice of hearing that included the time and date of the hearing. Third, assuming arguendo that the notice to appear were defective and the defect could not be cured, 8 C.F.R. § 1003.14 is not jurisdictional.
All three holdings are important because the Fifth Circuit treats alternative holdings as binding precedent--not dicta.
The Court's first reason for rejecting Pierre-Paul's jurisdictional argument simply reaffirms the Fifth Circuit's refusal to "extend Pereira's narrow holding beyond the stop-time rule context." (discussing Pereira v. Sessions, 138 S. Ct. 2105 (2018)). In so holding, the Fifth Circuit joins an "overwhelming chorus of [its] sister circuits." (citing See Nkomo v. Attorney Gen., No. 18-3109, 2019 WL 3048577, at *2-3 (3d Cir. July 12, 2019); Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 110-12 (2d Cir. 2019); Soriano-Mendosa v. Barr, 768 F. App'x 796, 801-02 (10th Cir. 2019); Santos-Santos v. Barr, 917 F.3d 486, 490-91 (6th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1161-62 (9th Cir. 2019); Leonard v. Whitaker, 746 F. App'x 269, 269-70 (4th Cir. 2018) (citing Mauricio-Benitez, 908 F.3d at 148 n.1); see also Ortiz-Santiago v. Barr, 924 F.3d 956, 966 (7th Cir. 2019)).
The Court's second deepens an established circuit split regarding BIA's interpretation of 8 C.F.R. § 1003.14. The Fifth Circuit joins the Second, Sixth, and Eleventh Circuits in holding that a defective notice to appear can be cured so long as a notice of hearing specifying this information is later sent to the alien. See Banegas Gomez, 922 F.3d at 112; Molina-Guillen v. U.S. Attorney Gen., 758 F. App'x 893, 898-99 (11th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305, 314-15 (6th Cir. 2018). The Ninth and Seventh Circuits disagree. Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019) (holding that a defective notice to appear cannot be cured); Ortiz-Santiago, 924 F.3d at 962 (same).
In case you're curious (like I was): several of the courts that the Fifth Circuit joins in holding that a defective notice to appear can be cured deferred to the BIA's interpretation of its regulation under Auer. Note, though, that they did so before the Supreme Court zombified that doctrine in Kisor v. Wilkie. Curiously, the Fifth Circuit doesn't mention Auer, Kisor, zombies, or anything else in its analysis of the issue. Hmmm.
The Court's third reason for rejecting Pierre-Paul's jurisdictional argument is based on the distinction between jurisdictional rules and claim-processing rules. A claim-processing rule seeks to promote orderly progress of litigation by requiring parties to take certain procedural steps at specified times. A jurisdictional rule is a much bigger deal because it limits the court's subject-matter jurisdiction. Because parties can challenge a court's subject-matter jurisdiction any time, objections based on jurisdictional rules aren't subject to forfeiture. Wait too long to raise an objection based on a claim-processing rule, though, and the court may well hold that you forfeited the argument.
The Court explains that 8 C.F.R. § 1003.14 is a claim-processing rule because (1) Congress didn't clearly make the immigration court's jurisdiction dependent on notices to appear and (2) the AG lacks authority to "define the scope of its power to hear cases" through the regulations it issues. For that reason, the Court held that Pierre-Paul had forfeited his objection by "waiting too long to raise th[e] issue." The Seventh Circuit reached the same conclusion in Oritz-Santiago, 942 F.3d at 963-64.
Next, the Court held that it lacked jurisdiction over Pierre-Paul's objections to the denial of asylum, withholding of removal, and cancellation of removal. Regarding asylum and withholding of removal, the Court explained that because Pierre-Paul was removed under 8 U.S.C. § 1252(a)(2)(C)--the so-called "criminal-alien bar"--the Court's jurisdiction was limited to legal questions. Pierre-Paul raised only fact questions.
As for the denial of cancellation of removal, the Court held that it lacked jurisdiction section 1252(a)(2)(B)--the so-called "discretionary-act bar"--barred review. That provision precludes judicial review of a decision regarding the grant or denial of discretionary relief in the form of cancellation of removal unless "the appeal involves constitutional questions or questions of law." Pierre-Paul's objection to the denial of cancellation of removal did raise questions of law. In particular, Pierre Paul challenged the immigration judge's conclusion that he was statutorily ineligible for the relief requested.
As the Court explained, however, the Fifth Circuit only reviews the BIA's order and considers the immigration judge's order only if the BIA's reasoning rests on the immigration judge's reasoning. In this case, the BIA expressly declined to reach the legal question Pierre-Paul raised. Instead, it declined to cancel removal "as a matter of discretion" after balancing the equities. As a result, the Court held that Pierre-Paul's challenge fell "squarely within the [discretionary-act bar]." Notice that the Court's reasoning on this last point seems to permit the BIA to shield its decisions from judicial review by refusing to address a legal issue even when the immigration judge considered and addressed the legal question.
The Court's rejection of Pierre-Paul's due-process argument was pretty straightforward, so I'll omit further discussion of it here.
Full Disclosure: I filed an amicus curiae brief in support of the petition for certiorari in Pierre-Paul.
United States v. Parrales-Guzman, 922 F.3d 706 (5th Cir. July 11, 2019) (King, Elrod, Higginson)
In Parrales-Guzman, the Court held that an alien seeking to collaterally attack an underlying removal order in a later reentry prosecution must show (among other things) that he “exhausted any administrative remedies that may have been available to seek relief against the order.” (quoting 8 U.S.C. § 1326(d)(1)). Parrales-Guzman’s collateral attack failed because he did not exhaust all available administrative remedies by appealing or reopening the removal order.
Parrales-Guzman argued that “§ 1326(d)’s bar on collateral attacks does not attach because [the] removal order was void ab initio as it rested on an unconstitutionally vague statute.” The Court rejected that argument because it would “upend Congress’s mandate that collateral review in the course of re-entry prosecutions be available only in a narrow set of circumstances.”
United States v. Pedroza-Rocha, No. 18-50828 (5th Cir. Aug. 8, 2019) (King, Elrod, Engelhardt) (per curiam)
Pedroza-Rocha involved the United States's appeal from a district court order dismissing Pedroza-Rocha's indictment for illegal reentry. The Court's opinion reversing and remanding includes a mechanical application of the Pierre-Paul and Parrales-Guzman decisions just discussed. Before reaching the merits, however, the Court broke new ground (for the Fifth Circuit at least) by rejecting Pedroza-Rocha's argument that his deportation during the pendency of the government's appeal rendered the case moot.