Jordany Pierre-Paul v. William Barr, U. S. Atty Ge
Opinion
Jordany Pierre-Paul petitions for review of the order of the Board of Immigration Appeals (BIA), arguing that the immigration court lacked jurisdiction, that the BIA erred in denying his application for asylum, withholding of removal, and cancellation of removal, and that the immigration judge violated his due process rights. Because we reject Pierre-Paul's jurisdictional and due process arguments, we deny his petition in part. Because we lack jurisdiction to review the denial of asylum, withholding of removal, and cancellation of removal, we dismiss his petition in part.
I.
Pierre-Paul is a citizen of Haiti who was admitted to the United States on May 14, 2001, based on his mother's asylum. Since his arrival to the United States, Pierre-Paul acquired a lengthy criminal record with nine convictions. Before the initiation of his removal proceedings, Pierre-Paul had four criminal convictions: a 2005 conviction for criminal trespass, a 2007 conviction for evidence tampering, a 2007 conviction for making a terroristic threat, and a 2009 conviction for assault causing bodily injury.
On May 11, 2010, the government initiated removal proceedings against Pierre-Paul by filing a notice to appear with the immigration court. In the initial notice to appear, the government included a charge for being an alien convicted of a crime involving moral turpitude within five years of admission to the United States, under
While his removal proceedings were pending between October 2011 and December 2015, Pierre-Paul acquired four more criminal convictions: a 2011 conviction for driving without a license, a 2012 conviction for cocaine possession, a 2012 conviction for making a terroristic threat, and a 2015 conviction for cocaine possession. For this reason, Pierre-Paul was in and out of jail and prison, and his removal proceedings were not re-calendared until August 2016. In June 2010, the government added a charge for being an alien convicted of multiple crimes involving moral turpitude, under
After a competency hearing held on October 6, 2016, an immigration judge found Pierre-Paul mentally incompetent. At the hearing, the immigration judge ordered that an attorney be appointed to represent Pierre-Paul to protect his rights and facilitate his participation in subsequent hearings. In March 2017, Pierre-Paul's case was transferred to a different immigration judge who ultimately ordered Pierre-Paul removed and denied his application for asylum, withholding of removal, relief under the Convention Against Torture (CAT), and cancellation of removal.
On September 22, 2017, the immigration judge issued her order. In her order, the immigration judge noted the fact that a previous immigration judge had found Pierre-Paul incompetent and appointed counsel. The immigration judge also observed that, as the proceedings continued, additional procedural safeguards were placed: Namely, Pierre-Paul's narrations of facts in his asylum application and testimony and subjective fear of returning to Haiti had been credited as true. The immigration judge then found Pierre-Paul removable under
The immigration judge also denied Pierre-Paul's application for asylum and withholding of removal for two reasons. First, the immigration judge concluded that Pierre-Paul's proposed particularized social group-mentally ill Haitians who suffer from schizophrenia-was not legally cognizable. Alternatively, the immigration judge concluded that Pierre-Paul failed to demonstrate that he would be persecuted on account of being a mentally ill Haitian suffering from schizophrenia. As to Pierre-Paul's application for CAT relief, the immigration judge found that Pierre-Paul failed to demonstrate that he would be tortured by, or with the acquiescence of, the Haitian government.
*688
The immigration judge then denied cancellation of removal for two reasons. First, the immigration judge concluded that Pierre-Paul was statutorily ineligible.
See
8 U.S.C. § 1229b(a)(2) (requiring seven years of continuous residence in the United States);
Matter of Perez
,
The BIA dismissed Pierre-Paul's appeal on March 16, 2018. The BIA held that Pierre-Paul did not adequately appeal the CAT issue. The BIA affirmed the denial of asylum and withholding of removal because Pierre-Paul failed to establish a nexus between persecution and his proposed particular social group. The BIA did not decide whether Pierre-Paul's group was legally cognizable. Finally, as to the denial of cancellation of removal, the BIA expressly declined to address Pierre-Paul's statutory eligibility. Instead, the BIA conducted a de novo review, balanced the equities, and concluded that, as a matter of discretion, cancellation of removal was not warranted. In the BIA's view, Pierre-Paul's lengthy criminal history outweighed the positive factors.
Pierre-Paul now petitions for our review on various grounds. First, he argues that the immigration court lacked jurisdiction because his original notice to appear was defective. He also challenges the denial of asylum, withholding of removal, and cancellation of removal. Finally, Pierre-Paul argues that the immigration judge violated his due process rights by failing to adhere to the procedural safeguards that were put in place after the competency hearing. We consider each of these issues in turn.
II.
We first turn to Pierre-Paul's argument that the immigration court lacked jurisdiction because his original notice to appear did not include the time and date of the initial hearing. Title
Relying on the Supreme Court's holding in
Pereira
that "[a] putative notice to appear that fails to designate the specific time or place ... is not a 'notice to appear under [ 8 U.S.C. §] 1229(a),' " Pierre-Paul argues that his notice to appear, which lacked the time and date of his proceeding, was not a valid charging document under
We reject Pierre-Paul's argument for three independent reasons.
2
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,
A.
Pierre-Paul's notice to appear was not defective. We have already observed that the Supreme Court in
Pereira
addressed a "narrow question" of whether a notice to appear that omits the time or place of the initial hearing triggers the statutory stop-time rule for cancellation of removal.
Mauricio-Benitez v. Sessions
,
Pierre-Paul seeks to extend
Pereira
's narrow holding beyond the stop-time rule context: Because his notice to appear omitted the time and date of his initial hearing, he argues that it was defective and could not constitute a charging document. The government responds by pointing us to our sister circuits' cases holding that
Pereira
does not extend outside the stop-time rule context and by arguing that, to serve as a charging document, the notice to appear needs to satisfy the regulations, not
We reject Pierre-Paul's argument and join the overwhelming chorus of our sister circuits that have already rejected similar
Pereira
-based challenges.
See
Nkomo v. Attorney Gen.
, No. 18-3109,
As noted above, under
Here, Pierre-Paul's initial notice to appear complied with all of the regulatory requirements. Even though his notice to appear did not include the time and date of his initial hearing, the regulations do not require this information. Thus, Pierre-Paul's notice to appear was not defective.
B.
Alternatively, assuming
arguendo
that Pierre-Paul's notice to appear were defective under
The government relies on the BIA's precedential opinion concluding 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."
Bermudez-Cota
,
We agree with the government, the BIA, and some of our sister circuits that a defective notice to appear may be cured with a subsequent notice of hearing. As a threshold matter,
Pereira
did not directly address whether a defective notice to appear
*691
may be cured by a subsequent notice of hearing. Pereira was served with a notice to appear that omitted the date and time of his initial hearing, but he was never served with a subsequent notice of hearing because the immigration court mailed the notice of hearing to a wrong address.
Pereira
,
The two-step process comports with relevant statutory language. Title
Moreover, the two-step process also furthers "Congress' aim" by ensuring that aliens receive notice of the time and place of the proceedings.
United States v. Hayes
,
C.
Even if Pierre-Paul's notice to appear were defective, and even if that defect could not be cured,
We agree with the Seventh Circuit's treatment of
Congress has not "clearly state[d]" that the immigration court's jurisdiction depends on the content of notices to appear.
Arbaugh v. Y & H Corp.
,
Furthermore, the fact that the Attorney General promulgated
*693
Title
Because
* * *
To summarize, the regulations, not
III.
We now turn to Pierre-Paul's challenge to the denial of asylum, withholding of removal, and cancellation of removal. The government argues that we lack jurisdiction to review these issues, and we agree.
The government raises two jurisdictional bars. As to the denial of asylum and withholding of removal, the government argues that the criminal alien bar in
Pierre-Paul has failed to present a question of law for which our jurisdiction is preserved under
As to the denial of cancellation of removal, the government argues that the discretionary act bar in
IV.
Pierre-Paul's final argument is that the immigration judge violated his due process rights by failing to adhere to the procedural safeguards that a previous immigration judge put in place because Pierre-Paul was mentally incompetent. Pierre-Paul does not challenge the adequacy of the procedural safeguards but alleges that the immigration judge failed to abide by those safeguards. The BIA held that the immigration judge properly handled the procedural safeguards. 8 We agree with the BIA that the immigration judge did not violate Pierre-Paul's due process rights.
"If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien." 8 U.S.C. § 1229a(b)(3). "If an Immigration Judge determines that [an alien] lacks sufficient competency to proceed with the hearing, ... [then the immigration
*695
judge] ha[s] discretion to determine which safeguards are appropriate, given the particular circumstances in a case before them."
Matter of M-A-M-
,
[R]efusal to accept an admission of removability from an unrepresented respondent; identification and appearance of a family member or close friend who can assist the respondent and provide the court with information; docketing or managing the case to facilitate the respondent's ability to obtain legal representation and/or medical treatment in an effort to restore competency; participation of a guardian in the proceedings; continuance of the case for good cause shown; closing the hearing to the public; waiving the respondent's appearance; actively aiding in the development of the record, including the examination and cross-examination of witnesses; and reserving appeal rights for the respondent.
However, as the BIA has explained, these procedural safeguards are not a license for a mentally incompetent alien to fabricate narratives that are contrary to objective facts. "A situation could arise in which an applicant who is deemed incompetent by the immigration judge sincerely believes his account of events, although they are highly implausible to an outside observer."
Matter of J-R-R-A-
,
Here, the procedural safeguards for Pierre-Paul included crediting Pierre-Paul's narrations of fact, as contained in his application for asylum and withholding of removal, as true; assuming the subjectivity of his fear of returning to Haiti as true; and allowing his counsel to ask leading questions during the hearing. Pierre-Paul argues that the immigration judge failed to credit his testimony as true on three occasions, and he points to three statements made by the immigration judge in discussing Pierre-Paul's application for cancellation of removal.
In response, the government argues that the immigration judge did not diverge from the procedural safeguards, and we agree. The immigration judge agreed to, and did in fact, accept Pierre-Paul's narration of facts as contained in his application for asylum and withholding of removal as true. The immigration judge, however, did not commit to accepting all of Pierre-Paul's narrative as true with regard to cancellation of removal.
The government also argues that even if the immigration judge had promised to accept
all
of Pierre-Paul's statements as true, the immigration judge in fact treated Pierre-Paul's narrative as "credible." We agree with the government, and the immigration judge properly concluded that Pierre-Paul fell short because "the objective evidence of record" did not warrant cancelling removal.
J-R-R-A-
,
Pierre-Paul also argues that the immigration judge refused to accept his explanation of the events preceding his 2010 assault conviction. Pierre-Paul testified that he and his two friends attacked a man only because the man, without provocation, pointed a gun at them first. However, the immigration judge observed that Pierre-Paul's account was "in stark contrast to the victim and investigating officer's explanations" that the man confronted Pierre-Paul and his friends for selling drugs in his apartment complex and that they shot him. However, despite finding the discrepancy "concerning," the immigration judge continued to treat Pierre-Paul as "credible." Finally, Pierre-Paul alleges that the immigration judge believed the statements of the detention center's physicians who questioned whether Pierre-Paul fabricated a mental illness. This allegation is meritless as the immigration judge accepted that Pierre-Paul was schizophrenic based on his "extensive medical history."
In declining to cancel removal, the immigration judge properly weighed the totality of facts and circumstances-including both Pierre-Paul's statements as well as other evidence about Pierre-Paul's past crimes and failures to continue with mental treatment. We see no variance from the procedural safeguards that amounts to due process violations.
V.
We DENY IN PART Pierre-Paul's petition for review as it relates to the immigration court's jurisdiction and its handling of procedural safeguards for Pierre-Paul. We DISMISS IN PART for lack of jurisdiction as to the denial of asylum, withholding of removal, and cancellation of removal.
The government had withdrawn the charge under
In this circuit, alternative holdings are binding and not
obiter dictum
.
Luna-Garcia v. Barr
,
Among our sister circuits, so far, the Seventh Circuit stands alone in partially accepting the
Pereira
-based argument that a notice to appear that does not contain the time or place is defective.
Ortiz-Santiago
, 924 F.3d at 966. Ultimately, however, the Seventh Circuit concluded that the immigration court's jurisdiction was not affected because
Having concluded that the notices to appear omitting the time, date, or place are not defective, none of our sister circuits except the Seventh Circuit needed to address whether
Although
Ultimately, whether we call
Pierre-Paul also challenges the immigration judge's conclusion that Pierre-Paul was statutorily ineligible for cancellation of removal and that his group was not a cognizable particular social group for asylum and withholding of removal. However, we review only the BIA's order and review the immigration judge's order only if the BIA's reasoning rests on the immigration judge's reasoning.
Hernandez-Castillo v. Sessions
,
Although Pierre-Paul failed to raise the issue before the BIA, because the BIA
sua sponte
reached the issue, we have jurisdiction to review it.
Lopez-Dubon v. Holder
,
Reference
- Full Case Name
- Jordany PIERRE-PAUL, Also Known as Yves Pierre, Also Known as Yves Paul, Petitioner, v. William P. BARR, U.S. Attorney General, Respondent.
- Cited By
- 203 cases
- Status
- Published