Sigaran v. Barr

970 F.3d 1

Jairo Arquimedes Machado SIGARAN, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 19-1282

United States Court of Appeals, First Circuit.

August 5, 2020

Jeffrey B. Rubin with whom Todd C. Pomerleau, Boston, MA, and Rubin Pomerleau PC were on brief, for petitioner.

John F. Stanton, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, U.S. Department of Justice, and Keith I. McManus, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before Torruella, Boudin, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

Petitioner Jairo Arquimedes Machado Sigaran ("Machado") appeals from the denial of his request for temporary protected status ("TPS") under 8 U.S.C. § 1254a. Eligibility for such relief requires, among other things, that the noncitizen maintain a continuous residence and physical presence within the United States for a period of time that began in this instance on December 27, 1997. During that time Machado admittedly spent ninety-eight days outside the United States pursuant to an order of removal. He argues that he can excuse those ninety-eight days as "brief, casual, and innocent," id. § 1254a(c)(4)(A)–(B), because his order of removal was later rescinded by an immigration judge. In denying petitioner's request, the Board of Immigration Appeals determined that the rescission of the removal order was improper, leaving petitioner with no excuse for his time outside the country. For the following reasons, we affirm the decision of the BIA denying petitioner's request for TPS relief.

I.

Machado first came to the United States to join his mother in Massachusetts at the age of sixteen. He was picked up by border patrol agents near Brownsville, Texas, a few days after he crossed the United States-Mexico border. While detained, in December 1997, he was issued a document titled "notice to appear" in immigration court. The notice did not include the date and time of his first immigration hearing. It did, however, state:

You must notify the Immigration Court immediately ... whenever you change your address or telephone number during the course of this proceeding. ... If you do not ... provide an address at which you may be reached during proceedings, then the Government shall not be required to provide you with written notice of your hearing.

Machado was then transferred to Boston and released in January 1998 to his mother's friend and landlady, Marisel Machuca. Upon release, he was served with a document entitled "Notification Requirement for Change of Address" instructing him in English and Spanish to keep both INS and the Immigration Court advised of any address changes, warning him that failure to do so could result in entry of an order of removal, in absentia. Machado at that time provided the address of Machuca, with whom Machado and his mother were then residing. Machado and his mother lived at that location for only a few weeks and moved out in late January 1998. Neither Machado nor his mother informed immigration authorities of his change of address. Hearing notices were then sent to Machuca, who failed to pass them on to Machado. As a result, Machado missed his immigration hearings. At his final removal hearing in September 2000, he was ordered removed in absentia.

After the removal order was issued, Machado lived in the United States for several more years, fathered three children, was arrested four times but only convicted once (of misdemeanor trespass), and began to apply for immigration relief (he filed two ultimately unsuccessful TPS applications). In October 2011, he was arrested again, this time by immigration officers, and removed to El Salvador on November 30, 2011, pursuant to the 2000 removal order.

In January 2012, his lawyer moved to reopen his case with the Texas immigration court based on the fact that he had not received actual notice of his final removal hearing in September 2000. In March 2012 -- ninety-eight days after his removal -- Machado returned to the United States, was again apprehended by authorities, and pled guilty to illegal reentry. In April, the Texas immigration judge granted Machado's motion to reopen and vacated the in absentia removal order, reasoning that although Machado had received "proper notice" of his final removal hearing, "he [had been] purposefully kept unaware of the [hearing] notices by his mother's friend." The Texas immigration judge then transferred Machado's case to Boston.

In the course of continued proceedings in Boston, Machado conceded that he was removable but requested various forms of relief and withholding of removal. The immigration judge decided that Machado had abandoned several of his applications, and the judge pretermitted two others, including Machado's TPS application, based on Machado's previous convictions for trespass and illegal reentry. Machado appealed the Boston immigration judge's decisions to the BIA, and in the meantime sought and received post-conviction relief from the trespassing conviction in Massachusetts state court. Because the conviction was vacated and no longer a bar to relief, the BIA remanded the case back to the Boston immigration judge, and the parties refocused their dispute on whether Machado's alleged lapse in residence and physical presence due to the November 2011 deportation made him ineligible for TPS. The Boston immigration judge ruled that it did, and on appeal in March 2017 the BIA affirmed the Boston immigration judge's decision.

Machado then petitioned this court for review. The government made an unopposed motion to remand to the BIA for further consideration of Machado's eligibility for TPS, specifically with regard to his argument that his removal did not break the continuous physical presence or residence requirements because the removal order had been rescinded by the Texas immigration judge. We granted that motion. In his briefing on remand, Machado additionally argued that the immigration court never had jurisdiction over him because his original notice to appear had not included the date and time of his first hearing. In February 2019, the BIA dismissed Machado's jurisdictional argument and further determined that the Texas immigration judge had not had authority to rescind the in absentia removal order, and Machado's removal therefore prevented him from meeting the continuous physical presence and residence requirements. Machado timely appealed again.

II.

We review legal issues on appeal from the BIA de novo but defer to the agency's reasonable interpretations of the agency's governing statutes, including, as relevant here, 8 U.S.C. § 1101 et seq. See Soto-Hernandez v. Holder, 729 F.3d 1, 3 (1st Cir. 2013) ; see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

A.

As a preliminary issue, we address Machado's argument, citing Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), that because his initial notice to appear did not list the date and time of his first immigration hearing, the immigration court never had jurisdiction over his case. The government makes no claim that Machado failed to preserve this argument. In Pereira, the Supreme Court held that a "putative notice to appear" without date and time included is not sufficient to trigger the "stop-time" rule.

Id. at 2114–16.¹ In Goncalves Pontes v. Barr, however, we squarely decided that -- even in light of the Supreme Court's holding in Pereira -- a notice to appear that fails to specify a hearing date and time is sufficient to initiate proceedings in the immigration court under 8 C.F.R. § 1003.14(a). Goncalves Pontes v. Barr, 938 F.3d 1, 5–7 (1st Cir. 2019) (citing In re Bermudez-Cota, 27 I. & N. Dec. 441, 447 (B.I.A. 2018) ); see also United States v. Mendoza, 2020 WL 3529571, at *3, 963 F.3d 158 (1st Cir. June 30, 2020) (explaining that our decision in Goncalves Pontes did not require subsequent service of a notice of hearing in order for a notice to appear to vest jurisdiction in the immigration court). Machado offers no relevant reason for distinguishing Goncalves Pontes. As a result, this jurisdictional challenge under Pereira fails.

B.

Machado's primary argument on appeal is that his ninety-eight-day absence from the country was brief, casual, and innocent. Eligibility for TPS relief requires -- among other things -- the applicant to have "been continuously physically present in the United States since the effective date of the most recent designation" under § 1254a(b)(1) of the state of which he is a national, and to have "continuously resided in the United States since such date as the Attorney General may designate." 8 U.S.C. § 1254a(c)(1)(A)(i)–(ii). An applicant can still satisfy the requirements for continuous physical presence and continuous residence if any absence from the United States was "brief, casual, and innocent." Id. § 1254a(c)(4)(A)–(B).²

The regulations further defining the phrase "brief, casual, and innocent" make clear that an absence due to an order of removal does not qualify. See 8 C.F.R. § 1244.1(2). We do not read Machado's brief to argue otherwise. The question, then, is whether the Texas immigration judge's rescission of Machado's removal order had the effect of making Machado's absence brief, casual, and innocent when it would otherwise not have been. We previously remanded this appeal to allow the BIA to consider that question. In the words of the government's motion to remand, which we referenced in our remand order:

Remand will permit the agency to further consider Petitioner's eligibility for TPS in light of the rescission of the underlying removal order. In particular, the agency may further consider whether a departure pursuant to an otherwise valid removal order may nevertheless be deemed "brief, casual, and innocent" for purposes of TPS where the

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