Case o' The Week: No Date, No Time, yet J/X Fine! - Karingithi, Pereira, and I.J. Jurisdiction from a deficient "notice to appear"

A: “Huh. I honestly can’t tell.”

Q: What is the date and time of your immigration removal hearing?

(Even “Carnac the Magnificent” would be stumped by the “notice to appear” just upheld in the Ninth).

  Karingithi v. Whitaker, 2019 WL 333335(9th Cir. Jan. 28, 2019), decision available here.

Players: Decision by Judge McKeown, joined by Judges W. Fletcher and Bybee.

Facts: Karingithi, a native of Kenya, overstayed her tourist visa in the U.S. Id. at *1. She ultimately received a “notice to appear with the immigration court.” This notice had the location of the hearing, with a time and date “to be set.” Id. at *2. On the same date she was also issued a “notice of hearing,” which had the time and the date of the hearing. Id. 

  Karingithi conceded removability, but filed an asylum application, sought withholding of removal, and protection under the Convention Against Torture. She also sought, in the alternative, voluntary departure. Id. 

  After five years, these efforts were all denied and Karingithi was ordered removed. Id. She then challenged the IJ’s jurisdiction over her removal proceedings, and the BIA’s decision. Id.

Issue(s): “We consider whether the Immigration Court has jurisdiction over removal proceedings when the initial notice to appear does not specify the time and date of the proceedings, but later notices of hearing include that information.” Id. at *1.

Held: “This question is governed by federal immigration regulations, which provide that jurisdiction vests in the Immigration Court when a charging document, such as a notice to appear, is filed. 8 C.F.R. §§ 1003.13, 1003.14(a).” Id.

  “Because the charging document in this case satisfied the regulatory requirements, we conclude the Immigration Judge (‘IJ’) had jurisdiction over the removal proceedings. This reading is  consistent with the recent interpretation of these regulations by the Board of Immigration Appeals (“BIA” or the “Board”), see Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), and the only other court of appeals to reach this issue, see Hernandez-Perez v. Whitaker, 911 F.3d 305, 310–15 (6th Cir. 2018).” Id.

Of Note: This decision is important in the criminal context because of its Pereira ramifications. See Pereira v. Sessions, 138 S.Ct. 2105 (2018). In Karingithi, Judge McKeown attempts to distinguish Pereira by noting that the SCOTUS decision dealt with the “stop-time” rule, and this case addresses whether the IJ had jurisdiction after an ambiguous notice to appear was filed. Id. at *2. She explains, “Unlike the stop-time rule, the Immigration Court’s jurisdiction does not hinge on § 1229(a), so Pereira’s narrow ruling does not control our analysis. We conclude that the IJ had jurisdiction over Karingithi’s removal proceedings and that the Board properly denied her petition.” Id.

  Karingithi is a troubling decision for those mounting Section 1326(d) challenges, but, as urged below, preserve challenges. Efforts to seek review are underway.

How to Use: The FPD brain trust has bevvy of beefs with the Karingithi decision (as do a slew of district courts, that have issued thoughtful analyses arriving at the opposite outcome).

  En banc and amicus efforts are underway.

  In the meantime, preserve Pereirai challenges through Section 1326(d) motions. While the Kiringithi skirmish may have been lost for now, this jurisdictional battle continues.

                                               

For Further Reading: Last week we noted that three of President Trump’s Ninth Circuit candidates -- who did not have California blue slips -- had not been re-nominated in the new year. That changed last Wednesday. Attorneys Daniel Bress, Daniel Collins, and Kenneth Lee, were all re-nominated. See White House Press release here. 

  What has not changed are the positions of California’s two Senators. On the same day as the re-nomination announcement, Senators Feinstein and Harris issued a press release stating their opposition to these three nominees. See Senator Feinstein's and Harris' press release here. 

The Hon. Senators Graham and Feinstein

   Will the Judiciary Committee Chair, Senator Lindsey Graham, go forward on these three nominations, over the objections of a Senator Feinstein, a ranking member of the committee? Appears likely. See Roll Call article here.  

Image of  “Carnac the Magnificent” from https://en.wikipedia.org/wiki/Carnac_the_Magnificent

Image of the Senators Graham and Feinstein from https://www.sacbee.com/latest-news/article225349515.html

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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