Suate-Orellana v. Garland

101 F.4th 624

Ninoska SUATE-ORELLANA, aka Ninosca Suate Oriana, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No.19-72446

United States Court of Appeals, Ninth Circuit

Argued and Submitted December 8, 2023 Portland, Oregon

Filed May 7, 2024

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX5-308

Jessica Rofé (argued); Naomi B. Sunshine and Nancy Morawetz, Supervising Attorneys; Jencey Paz and Vibha Khan, Legal Interns; New York University School of Law, Immigrant Rights Clinic, Washington Square Legal Services Inc., New York, New York; for Petitioner.

Arthur L. Rabin (argued), Trial Attorney; Patrick J. Glen, Senior Litigation Counsel; Stephen J. Flynn, Assistant Director; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.

Trina Realmuto and Kristin Macleod-Ball, National Immigration Litigation Alliance, Brookline, Massachusetts, for Amicus Curiae National Immigration Litigation Alliance.

Before: Marsha S. Berzon, Jacqueline H. Nguyen, and Eric D. Miller, Circuit Judges.

OPINION

NGUYEN, Circuit Judge:

Ninoska Suate-Orellana ("Suate-Orellana") unsuccessfully applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), and was ordered removed to Honduras in 2011. She unlawfully reentered the United States in 2014, and the Department of Homeland Security ("DHS") reinstated her prior order of removal. Suate-Orellana unsuccessfully challenged denial of relief in those removal proceedings, which are not before this court. While removal proceedings were ongoing, she filed a motion for reconsideration and termination of the underlying removal order. An immigration judge ("IJ") denied the motion. The Board of Immigration Appeals ("BIA") dismissed her appeal. Suate-Orellana now petitions for review of the BIA's decision on her motion for reconsideration.

Suate-Orellana argues that the Notice to Appear ("NTA") in the underlying immigration proceedings was deficient under 8 U.S.C. § 1229(a)(1) because it did not state the time or date of her hearing. Contrary to the government's contention, Suate-Orellana has exhausted this argument in her briefing below. Although the IJ and BIA addressed her argument that her NTA was deficient on the merits, the legal landscape has changed significantly since the BIA's decision dismissing her appeal. See, e.g., Niz-Chavez v. Garland, 593 U.S. 155, 171-72, 141 S.Ct. 1474, 209 L.Ed.2d 433 (2021); United States v. Bastide-Hernandez, 39 F.4th 1187, 1193 n.9 (9th Cir. 2022), cert. denied, — U.S. —, 143 S. Ct. 755, 214 L.Ed.2d 454 (2023); Matter of Fernandes, 28 I. & N. Dec. 605, 616 (B.I.A. 2022). We therefore grant and remand Suate-Orellana's petition so that the BIA may reconsider the merits of her claim in light of these intervening authorities. See Pannu v. Holder, 639 F.3d 1225, 1229 (9th Cir. 2011) (remanding to the BIA in light of "significant intervening [legal] developments").

I. Background

A. Factual Background

Suate-Orellana came to the United States in 2011, having fled Honduras after a gang killed her partner and threatened to kill her. While in custody, she had a credible fear interview; the asylum officer found that she had a credible fear and referred her asylum claim to an IJ. On February 8, 2011, DHS issued an NTA, stating the date and time of her hearing were "to be set."

Later, the Immigration Court issued a Notice of Hearing setting Suate-Orellana's video hearing for March 31, 2011, at 1:00 PM. Suate-Orellana, still in custody, appeared pro se via video for the hearing. The record before the IJ included an I-589 Application for Asylum and for Withholding of Removal, a letter handwritten by Suate-Orellana in Spanish dated March 7, 2011, detailing her fear of returning to Honduras, and a 2009 U.S. Department of State Human Rights Report on Honduras. At the conclusion of the hearing, the IJ found Suate-Orellana credible but ordered her removed.

After Suate-Orellana returned to the United States, DHS reinstated her removal order in 2014, and Suate-Orellana entered withholding-only proceedings. See Padilla-Ramirez v. Bible, 882 F.3d 826, 832 (9th Cir. 2018) ("[Withholding-only] proceedings are an exception to the general prohibition against seeking relief from removal pursuant to a reinstated order.") (citing 8 C.F.R. § 241.8(e)). She was denied relief in those proceedings. See Suate-Orellana v. Barr, 979 F.3d 1056 (5th Cir. 2020).

B. Procedural History

On July 20, 2018, Suate-Orellana filed a motion requesting that the IJ reconsider and terminate her underlying removal order. She filed the motion within 30 days of the Supreme Court's decision in Pereira v. Sessions, 585 U.S. 198, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), which held that a "notice that does not inform a noncitizen when and where to appear for removal proceedings is not a 'notice to appear under section 1229(a).' " Id. at 202, 138 S.Ct. 2105. In the motion, she argued that the IJ lacked jurisdiction to issue the removal order because the NTA she received was statutorily deficient under Pereira. See 8 U.S.C. § 1229(a). Although motions to reconsider generally must be filed within 30 days of a final administrative order of removal, see 8 C.F.R. § 1003.23(b)(1), Suate-Orellana argued that equitable tolling applied, or, alternatively, that the IJ should reconsider the case sua sponte. The IJ denied the motion. The IJ also concluded that "even if the Court had found reconsideration or reopening of Respondent's removal proceedings warranted, the Court would nevertheless deny the motion to terminate," because Pereira's holding does not divest an IJ of jurisdiction where the NTA lacks time and place information.

Suate-Orellana appealed to the BIA. She argued for equitable tolling or sua sponte reopening,¹ and she asserted that her NTA was invalid. The BIA dismissed her appeal. The BIA decision on the motion did not discuss the timeliness of Suate-Orellana's motion, nor the agency's jurisdiction. Rather, the BIA dismissed her appeal on the merits, stating "the NTA and the hearing notice together provided the respondent with the required notice."²

II. Jurisdiction and Standard of Review

We have jurisdiction under 8 U.S.C. § 1252. We review denials of motions to reconsider or reopen for abuse of discretion. Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th Cir. 2006). We review questions of law de novo. Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017).

III. Discussion

A. Suate-Orellana Exhausted Her Claim That Her NTA Was Statutorily Deficient.

The government argues that Suate-Orellana did not exhaust her claim that the NTA was statutorily deficient.³ We disagree.

The exhaustion requirement contained in 8 U.S.C. § 1252(d)(1) is a non-jurisdictional "claim-processing rule." Santos-Zacaria v. Garland, 598 U.S. 411, 419, 143 S.Ct. 1103, 215 L.Ed.2d 375 (2023). Although "it is subject to waiver and forfeiture," id. at 423, 143 S.Ct. 1103, "[a] claim-processing rule [is] 'mandatory' in the sense that a court must enforce the rule if a party 'properly raise[s]' it." Fort Bend Cnty., Texas v. Davis, — U.S. —, 139 S. Ct. 1843, 1849, 204 L.Ed.2d 116 (2019) (quoting Eberhart v. United States, 546 U.S. 12, 19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam)).

To exhaust a claim, the noncitizen must put the BIA on notice of the challenge, and the BIA must have "an opportunity to pass on the issue." Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam). "A noncitizen need not raise a 'precise argument' before the BIA in order to exhaust it." Arizmendi-Medina v. Garland, 69 F.4th 1043, 1051 (9th Cir. 2023) (quoting Diaz-Jimenez v. Sessions, 902 F.3d 955, 960 (9th Cir. 2018)).

In her motion to reconsider before the IJ, Suate-Orellana argued that she "was ordered removed on the basis of a putative Notice to Appear that did not contain the requisite time or place information under the INA." She then argued in her brief to the BIA that she "was never issued a valid Notice to Appear indicating the date and time of her proceedings, as the statute requires." This language was sufficient to put the BIA on notice of her challenge. See Zhang, 388 F.3d at 721.

The government insists that Suate-Orellana challenged the validity of the NTA only in the context of arguing that the IJ lacked jurisdiction. The government misconstrues Suate-Orellana's briefing below. She explicitly argued before the IJ that the NTA was statutorily deficient and that, as a result, the IJ lacked jurisdiction. And Suate-Orellana highlighted the NTA's deficiency under 8 U.S.C. § 1229(a)(1) in her brief to the BIA, arguing her NTA was "a document which the Supreme Court has held is statutorily deficient." The BIA recognized this distinct aspect of Suate-Orellana's argument, finding that the NTA together with the subsequent hearing notices "provided the respondent with the required notice under . . . 8 U.S.C. § 1229(a)(1)," in addition to addressing the jurisdictional argument. Because the BIA had an opportunity to pass on the issue, Zhang, 388 F.3d at 721, Suate-Orellana has exhausted her claim that her NTA was statutorily deficient.

The government cites Umana-Escobar v. Garland, in which we held that the petitioner's "NTA argument sounded exclusively in jurisdiction and . . . the BIA thus had no reason to consider whether the NTA's defects could constitute some other type of violation which might be subject to waiver, such as a claim-processing violation." 69 F.4th 544, 550 (9th Cir. 2023). Suate-Orellana's brief before the BIA was different from the one filed in that case. While Suate-Orellana did not use the phrase "claim-processing violation," in her briefing below, she was not required to "use precise legal terminology to exhaust [her] claim," id. (quoting Arsdi v. Holder, 659 F.3d 925, 929 (9th Cir. 2011)), particularly...