FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ISAIAS LORENZO LOPEZ,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 15-72406

Agency No.

A078-242-814

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 12, 2019

Pasadena, California

Filed May 22, 2019

Before: Dorothy W. Nelson and Consuelo M. Callahan, 

Circuit Judges, and Edward R. Korman,

* District Judge.

Opinion by Judge Korman;

Dissent by Judge Callahan

 * The Honorable Edward R. Korman, United States District Judge 

for the Eastern District of New York, sitting by designation.
2 LORENZO LOPEZ V. BARR

SUMMARY**

Immigration

Granting Isaias Lorenzo Lopez’s petition for review of a 

decision of the Board of Immigration Appeals, the panel held 

that a Notice to Appear that is defective under Pereira v. 

Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a 

subsequent Notice of Hearing and therefore does not 

terminate the residence period required for cancellation of 

removal.

Lorenzo sought cancellation of removal, a form of relief 

from removal that requires that an applicant must, among 

other requirements, reside in the United States continuously 

for seven years after having been admitted in any status. 

However, under the “stop-time” rule, as relevant here, the 

service of a Notice to Appear under 8 U.S.C. § 1229(a) 

terminates an alien’s residence. In Lorenzo’s case, an 

immigration judge and the BIA found him ineligible for 

cancellation because his March 2008 Notice to Appear 

terminated his residence period before he had accrued the 

requisite seven years.

In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the 

Supreme Court held that a Notice to Appear, as defined in 

8 U.S.C. § 1229(a), must contain the time and place at which 

removal proceedings will be held to trigger the stop-time 

rule. The panel concluded that Lorenzo’s Notice to Appear 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
LORENZO LOPEZ V. BARR 3

did not terminate his residence because it lacked time-andplace information.

However, because Lorenzo also received a subsequent 

Notice of Hearing that advised him of the time and place of 

his proceedings, the Attorney General argued that the Notice 

of Hearing cured the defective Notice to Appear and 

triggered the stop-time rule. The Attorney General relied on 

Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), which held 

that a Notice to Appear that fails to include the date and time 

of an alien’s deportation hearing, but that states that a date 

and time will be set later, is not defective so long as a notice 

of the hearing is later sent to the alien.

The panel held that a Notice to Appear that is defective 

under Pereira cannot be cured by a subsequent Notice of 

Hearing, explaining that the plain language of the statute 

foreclosed the Attorney General’s argument and that Pereira

had effectively overruled Popa.

The panel noted that the BIA reached a conclusion 

contrary to the panel’s holding in Matter of MendozaHernandez, 27 I. & N. Dec. 520 (BIA 2019) (en banc), 

where, over a vigorous dissent, a closely divided BIA held 

that a Notice of Hearing that contains time-and-place 

information perfects a deficient Notice to Appear and

triggers the stop-time rule. However, the panel declined to 

defer to that conclusion because: (1) the BIA acknowledged 

that Pereira could be read to reach a different result, and the 

courts owe no deference to agency interpretations of 

Supreme Court opinions; (2) the BIA ignored the plain text 

of the statute; and (3) the BIA relied on cases that cannot be 

reconciled with Pereira.

Thus, the panel concluded that, because Lorenzo never 

received a valid Notice to Appear, his residency continued 
4 LORENZO LOPEZ V. BARR

beyond 2008 and, accordingly, he has resided in the United 

States for over seven years and is eligible for cancellation of 

removal.

Dissenting, Judge Callahan wrote that she does not read 

Pereira as holding that the notice of the time and place must 

be provided in a single document. Rather, Judge Callahan 

reads Pereira as allowing the Department of Homeland 

Security to cure a deficient notice to appear by subsequently 

providing a noncitizen with actual notice of the time and 

place of the removal proceedings, with the result that the 

stop-time rule is triggered upon the noncitizen’s receipt of 

the supplemental notice.

COUNSEL

Jan Joseph Bejar (argued), Law offices of Jan Joseph Bejar 

P.L.C., San Diego, California, for Petitioner.

M. Jocelyn Lopez Wright (argued), Senior Litigation 

Counsel; Briena Strippoli, Trial Attorney; Melissa NeimanKelting, Assistant Director; Joseph H. Hunt, Assistant 

Attorney General; Office of Immigration Litigation, Civil 

Division, United States Department of Justice, Washington, 

D.C., for Respondent.

OPINION

KORMAN, District Judge:

Isaias Lorenzo Lopez was born in Oaxaca, Mexico in 

1984. In September 1998, when he was fourteen years old, 

he arrived in the United States to be with his father, a lawful 
LORENZO LOPEZ V. BARR 5

permanent resident (“LPR”). Lorenzo was paroled into the 

United States and, two years later, on February 12, 2002, he 

became an LPR. While in the United States, Lorenzo 

graduated from high school, receiving good grades while 

working to support his family. After graduating, he 

continued to work six days a week on a farm to support his 

two U.S. citizen children and their mother.

But his record, which includes two misdemeanor 

convictions for which he served a total of 10 days in jail, is 

not unblemished. This case arises out of a separate incident 

that occurred on March 14, 2008: Lorenzo agreed to help 

Adriana Lopez Estevez enter the United States illegally by 

furnishing her with a U.S. citizen’s birth certificate and 

driving to Tijuana to pick her up. When they attempted to 

return to the United States through the San Ysidro port of 

entry, border agents discovered that Adriana was not 

actually a U.S. citizen and had no documents authorizing her 

entry into the country. The agents arrested Lorenzo, and he 

confessed to attempting to assist Adriana to enter the United 

States because he felt pity for her. Immediately following his 

arrest, the Department of Homeland Security (“DHS”) 

commenced removal proceedings by filing a Notice to 

Appear and serving it on Lorenzo.

At his removal proceeding, Lorenzo sought cancellation 

of removal under 8 U.S.C. § 1229b(a) based on his LPR 

status. To be eligible for cancellation of removal, an LPR 

must, among other requirements, “reside[] in the United 

States continuously for 7 years after having been admitted in 

any status.” 8 U.S.C. § 1229b(a)(2). The IJ concluded that 

Lorenzo was admitted in February 2002 when he became an 

LPR and that the March 2008 Notice to Appear terminated 

his residence period. Because Lorenzo had resided in the 

United States for only six years and one month, he was 
6 LORENZO LOPEZ V. BARR

deemed ineligible for cancellation of removal. The Board of 

Immigration Appeals (“BIA”) affirmed the IJ’s decision. 

Lorenzo appealed.

While his appeal was pending, the Supreme Court 

decided Pereira v. Sessions, 138 S. Ct. 2105 (2018). Pereira

held that, as defined in 8 U.S.C. § 1229(a), a Notice to 

Appear must contain “[t]he time and place at which the 

[removal] proceedings will be held,” and that such definition 

applies wherever the term is used. Pereira, 138 S. Ct. 

at 2116. Because an alien’s residence is terminated by 

service of a “notice to appear under section 1229(a),” 

8 U.S.C. § 1229b(d)(1), absent time and place information, 

a purported Notice to Appear may not trigger the “stop-time” 

provision. Id. at 2110. Because the Notice to Appear issued 

to Lorenzo did not contain that information, it was defective 

and did not trigger the stop-time provision. Nevertheless, in 

April 2008, the Immigration Court advised Lorenzo of the 

time, date, and location of his proceeding by issuing a 

separate document labeled “Notice of Hearing.” In light of 

Pereira, we ordered supplemental briefing on “[w]hether a 

Notice of Hearing that contains the time and place at which 

an alien must appear cures a Notice to Appear that is 

defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), 

such that the ‘stop-time’ rule is triggered upon receipt of the 

Notice of Hearing.”

STANDARD OF REVIEW

We review questions of law, such as “the interpretation 

and construction of statutes,” de novo, Soltani v. W. & S. Life 

Ins. Co., 258 F.3d 1038, 1041 (9th Cir. 2001), “except to the 

extent that deference is owed to the BIA’s determination of 

the governing statutes and regulations.” Aragon-Salazar v. 

Holder, 769 F.3d 699, 703 (9th Cir. 2014). “Questions of law 

that can be answered with ‘traditional tools of statutory 
LORENZO LOPEZ V. BARR 7

construction’ are within the special expertise of courts, not 

agencies, and are therefore answered by the court de novo.” 

Ayala-Chavez v. INS, 945 F.2d 288, 294 (9th Cir. 1991) 

(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446 

(1987)), superseded by statute on other grounds as stated in 

Urbina-Mauricio v. INS, 989 F.2d 1085, 1088 n.3 (9th Cir. 

1993). If “the intent of Congress is clear, that is the end of 

the matter; for the court, as well as the agency, must give 

effect to the unambiguously expressed intent of Congress.” 

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

467 U.S. 837, 842–43 (1984).

DISCUSSION

Section 1229b(a) provides for “[c]ancellation of removal 

for certain permanent residents” who satisfy three 

prerequisites: “the alien (1) has been an alien lawfully 

admitted for permanent residence for not less than 5 years, 

(2) has resided in the United States continuously for 7 years 

after having been admitted in any status, and (3) has not been 

convicted of any aggravated felony.” 8 U.S.C. § 1229b(a). 

As to the second requirement, two events may terminate an 

alien’s residence, even if he still lives in the country: service 

of a Notice to Appear under Section 1229(a), or commission 

of “an offense referred to in section 1182(a)(2) . . . that 

renders the alien inadmissible . . . or removable.” Id.

§ 1229b(d)(1) (the “stop-time” rule); see also Nguyen v. 

Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018). Only the 

former is relevant here.

To trigger the stop-time rule, a Notice to Appear must

contain all items listed in Section 1229(a)(1), including the 

date, time, and place of the removal proceeding. Pereira, 

138 S. Ct. at 2113–14. Although “much of the information 

Section 1229(a)(1) calls for does not change and is therefore 

included in standardized language on the I-862 notice-to-
8 LORENZO LOPEZ V. BARR

appear form,” “time-and-place information in a notice to 

appear will vary from case to case.” Id. at 2113 (quotation 

marks omitted). Accordingly, Pereira focused its analysis on 

the omission of that information, ultimately holding that “[a] 

putative notice to appear that fails to designate the specific 

time or place of the noncitizen’s removal proceedings is not 

a ‘notice to appear under section 1229(a),’ and so does not 

trigger the stop-time rule.” Id. at 2113–14 (quoting 8 U.S.C. 

§ 1229b(d)(1)). Under Pereira, the Notice to Appear 

Lorenzo received in March 2008 did not terminate his 

residence. The Notice of Hearing he subsequently received 

in April 2008 contained the time and place of his removal 

proceeding but did not contain many of the other 

requirements of a Notice to Appear. Nevertheless, relying on 

our holding in Popa v. Holder, 571 F.3d 890, 896 (9th Cir. 

2009), the Attorney General argues that this Notice of 

Hearing cured the defective Notice to Appear and triggered 

the stop-time provision.

The plain language of the statute forecloses such a result. 

Popa’s holding that “a Notice to Appear that fails to include 

the date and time of an alien’s deportation hearing, but that 

states that a date and time will be set later, is not defective 

so long as a notice of the hearing is in fact later sent to the 

alien” rested on three grounds. Popa, 571 F.3d at 896. These 

grounds have been “undercut” by Pereira such that “the 

cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 

889, 900 (9th Cir. 2003) (en banc). Thus, we reject Popa “as 

having been effectively overruled.” Id.

First, Popa explained that we “silently . . . adopted the 

rule that the time and date of a removal proceeding can be 

sent after the first notice to appear” because we “never held 

that the [Notice to Appear] cannot state that the time and 

place of the proceedings will be set at a future time.” 
LORENZO LOPEZ V. BARR 9

571 F.3d at 895 (emphasis added). Putting aside the 

propriety of adopting rules through judicial silence, Pereira 

resoundingly rejected what Popa deemed “silently adopted.” 

Pereira, like Popa, involved a Notice to Appear ordering the 

alien to appear at a time and date “to be set.” 138 S. Ct. 

at 2112 (emphasis omitted). But the Supreme Court held that 

a notice lacking specific time and date information is “not a 

notice to appear.” Id. at 2118 (quotation marks omitted).

More precisely—indeed, more compellingly—the 

Supreme Court held that “when the term ‘notice to appear’ 

is used elsewhere in the statutory section, including as the 

trigger for the stop-time rule, it carries with it the substantive 

time-and-place criteria required by § 1229(a).” Id. at 2116. 

Unlike Popa, this holding relies on unambiguous statutory 

language. Specifically, 8 U.S.C. § 1229b(d)(1) provides that 

“any period of continuous residence . . . shall be deemed to 

end . . . when the alien is served a notice to appear under 

section 1229(a),” incorporating the definition of a Notice to 

Appear found in Section 1229(a), which includes 

information regarding the “time and place” of the hearing. 

Id. § 1229(a). In other words, any document containing less 

than the full set of requirements listed in Section 1229(a)(1) 

is not a Notice to Appear within the meaning of the statute—

regardless of how it is labeled by DHS—and does not 

terminate an alien’s residence. While Popa held that a Notice 

to Appear that states “the time and place of the proceedings 

will be set at a future time,” is “not statutorily defective,” 

571 F.3d at 894–96, Pereira makes clear that it is.

Second, Popa relied on now-outmoded out-of-circuit 

case law in adopting a “two-step notice procedure.” See id.

at 895–96 (citing Gomez-Palacios v. Holder, 560 F.3d 354, 

359 (5th Cir. 2009); Dababneh v. Gonzales, 471 F.3d 806, 

809–10 (7th Cir. 2006); Haider v. Gonzales, 438 F.3d 902, 
10 LORENZO LOPEZ V. BARR

907 (8th Cir. 2006)). Each of the three decisions upon which 

Popa relied were issued before Pereira, and none binds us 

today. More importantly, none of these cases comports with 

the unambiguous statutory text. Haider held that the law 

“simply requires that an alien be provided written notice of 

his hearing; it does not require that the [Notice to Appear] 

served on Haider satisfy all of § 1229(a)(1)’s notice 

requirements.” 438 F.3d at 907. This is flatly wrong. As 

Pereira explained, the term “Notice to Appear” carries with 

it all of Section 1229(a)(1)’s notice requirements wherever 

it appears. Pereira, 138 S. Ct. at 2116. Dababneh, in turn, 

relied on Haider and certain inapposite regulations, 

discussed below, rather than the statute. 471 F.3d at 809.

And Gomez-Palacios merely concluded “that information 

may be provided in a subsequent [Notice of Hearing],” 

primarily relying on Haider and Dababneh. 560 F.3d at 359. 

Popa likewise hung its hat on Haider’s faulty premise. See 

Popa, 571 F.3d at 895–96.

Third, the final ground undergirding Popa was a 

regulation—namely, 8 C.F.R. § 1003.18. That provision 

requires that DHS

provide in the Notice to Appear, the time, 

place and date of the initial removal hearing, 

where practicable. If that information is not 

contained in the Notice to Appear, the 

Immigration Court shall be responsible for 

scheduling the initial removal hearing and 

providing notice . . . of the time, place, and 

date of hearing.

8 C.F.R. § 1003.18(b) (emphasis added). We reasoned that 

such a regulation is necessary “[b]ecause circumstances may 

arise in which it is not feasible . . . to state the date, time, and 
LORENZO LOPEZ V. BARR 11

place of a removal hearing at the time the [Notice to Appear] 

is sent.” Popa, 571 F.3d at 896. Pereira rejected this 

rationale, see 138 S. Ct. at 2118–19, and we have 

acknowledged that “Pereira appears to discount the 

relevance of 8 C.F.R. § 1003.18 in the . . . context of 

eligibility for cancellation of removal.” Karingithi v. 

Whitaker, 913 F.3d 1158, 1160 n.1 (9th Cir. 2019).

In any event, the regulation rewrites the statute. As an 

initial matter, 8 C.F.R. § 1003.18 does not, on its face, relate 

to the stop-time rule. It pertains to scheduling cases and 

providing notice, implicating the stop-time rule only to the 

extent it purports to alter the requirements of a Notice to 

Appear. But the statute already enumerates what a Notice to 

Appear must contain. Even if we agreed with DHS that it 

makes sense to only issue time and place information “where 

practicable,” neither we nor DHS can override the clear 

statutory command that time and place information be 

included in all Notices to Appear. Pereira, 138 S. Ct. 

at 2118–19; see also Comm’r v. Asphalt Prods. Co., 

482 U.S. 117, 121 (1987) (per curiam) (“Judicial perception 

that a particular result would be unreasonable may enter into 

the construction of ambiguous provisions, but cannot justify 

disregard of what Congress has plainly and intentionally 

provided.”).

Moreover, the Supreme Court scrapped the notion that 

“practical considerations”—namely, that DHS may not be 

able to access the Immigration Court’s calendar and properly 

schedule proceedings when it issues a Notice to Appear—

excuse the failure to provide “specific time, date, and place” 

information. Pereira, 138 S. Ct. at 2118–19. Such 

“considerations . . . do not justify departing from the 

statute’s clear text.” Id. at 2118. Yet Popa did just that. We 

cannot now rely on those same considerations to advance a 
12 LORENZO LOPEZ V. BARR

policy other than what Congress passed and the President 

signed. See Xi v. INS, 298 F.3d 832, 839 (9th Cir. 2002) 

(“[A] decision to [rearrange] or rewrite the statute falls 

within the legislative, not the judicial, prerogative.”). Nor 

may DHS displace legislation with regulation. See League of 

Wilderness Defs./Blue Mountains Biodiversity Project v. 

Forsgren, 309 F.3d 1181, 1190 (9th Cir. 2002) (“An agency 

simply may not interpret a regulation in a way that 

contravenes a statute.”).

The Attorney General charts his course around the 

statute by arguing that a Notice of Hearing may cure a 

defective Notice to Appear. The phrase “notice of 

hearing”—or anything resembling it—does not appear in the 

law. Rather, the statute refers to a “notice to appear” and a 

“notice of change in time or place of proceedings” and 

delineates when each document may be issued and what it 

must contain. See 8 U.S.C. § 1229(a); see also Pereira, 

138 S. Ct. at 2114. Nevertheless, the Attorney General 

counters that the law is silent on whether the required notice 

must consist of one document or if it may consist of multiple 

documents that collectively contain the necessary 

information.

Far from silent, the statute speaks clearly: residence is 

terminated “when the alien is served a notice to appear.” 

8 U.S.C. § 1229b(d)(1) (emphasis added). The use of the 

singular indicates that service of a single document—not 

multiple—triggers the stop-time rule. Cf. United States v. 

Hayes, 555 U.S. 415, 421 (2009) (“We note as an initial 

matter that [the statute] uses the word ‘element’ in the 

singular, which suggests that Congress intended to describe 

only one required element.”); Delgado v. Holder, 648 F.3d 

1095, 1112 (9th Cir. 2011) (Reinhardt, J., concurring) (“The 

singular article ‘a’ could not make any clearer the singular 
LORENZO LOPEZ V. BARR 13

nature of ‘a particularly serious crime’: the agency must 

identify one offense of conviction . . . .”).

Rather than contending, as the Attorney General does, 

that the statute is silent, the dissent argues that the Dictionary 

Act, 1 U.S.C. § 1, requires all references to “a notice” or “the 

notice” in the statute be read as referring to both the singular 

and the plural, thus permitting multiple documents to 

collectively satisfy the requirements of a Notice to Appear. 

We reject this position for two reasons.

First, the Supreme Court has held that reliance on the 

Dictionary Act’s rule regarding “words importing the 

singular,” 1 U.S.C. § 1, is appropriate only “[o]n the rare 

occasions when . . . doing so [is] ‘necessary to carry out the 

evident intent of the statute.’” Hayes, 555 U.S. at 422 n.5 

(quoting First Nat’l Bank in St. Louis v. Missouri, 263 U.S. 

640, 657 (1924)). The “essential function of a notice to 

appear” is to “[c]onvey[] . . . time-and-place information to 

a noncitizen” and “facilitate appearance at [the] 

proceedings.” Pereira, 138 S. Ct. at 2115. A single, 

complete Notice to Appear achieves that aim, so resort to the 

Dictionary Act’s singular/plural rule and attendant contextdriven guidance is unnecessary. Second, reading Section 

1229b as the dissent does, the stop-time provision would be 

triggered “when the alien is served notices to appear under 

section 1229(a).” Nevertheless, no matter how many 

documents are sent, none qualifies as a “notice to appear” 

unless it contains the information Section 1229(a) 

prescribes. See Pereira, 138 S. Ct. at 2110.

The BIA has reached a conclusion contrary to our 

holding. Over a vigorous dissent, a closely divided BIA held 

that “where a notice to appear does not specify the time or 

place of an alien’s initial removal hearing, the subsequent 

service of a notice of hearing containing that information 
14 LORENZO LOPEZ V. BARR

perfects the deficient notice to appear, triggers the ‘stoptime’ rule, and ends the alien’s period of continuous 

residence or physical presence in the United States.” Matter 

of Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (BIA 

2019) (en banc). We do not defer to this conclusion for three 

reasons.

First, the threshold issue addressed by the BIA was 

whether Pereira definitively resolved whether “subsequent 

service of a notice of hearing containing [time and place] 

information perfects the deficient notice to appear, 

trigger[ing] the ‘stop-time’ rule.” Id. The BIA acknowledged 

that “Pereira can be . . . read in a literal sense to reach a 

different result,” i.e., a result contrary to the BIA’s ultimate 

holding. Id. Nevertheless, the BIA rejected such a “literal 

reading” and now the Attorney General invites us to defer to 

the BIA’s conclusion. But “a reviewing court should defer 

to an administrative agency only in those areas where that 

agency has particular expertise.” Ayala-Chavez, 945 F.2d at 

294. “There is therefore no reason for courts—the supposed 

experts in analyzing judicial decisions—to defer to agency 

interpretations of the Court’s opinions.” Akins v. FEC, 

101 F.3d 731, 740 (D.C. Cir. 1996) (en banc), vacated on 

other grounds by FEC v. Akins, 524 U.S. 11 (1998). 

Accordingly, we do not accord Chevron deference to the 

BIA’s reading of Pereira.

Second, the BIA’s analysis is disingenuous. Pereira did 

not merely “include[] language stating that a notice lacking 

the specific time and place of the removal proceeding does 

not equate to a notice to appear under [Section 1229(a)(1)].” 

Mendoza-Hernandez, 27 I. & N. Dec. at 529–30. Rather, the 

Supreme Court held that Section 1229(a)(1) defines what a 

notice to appear is, and that the definition is imported every 

time the term “notice to appear” is used in the statute—
LORENZO LOPEZ V. BARR 15

especially when it is used in the stop-time rule, 8 U.S.C. 

§ 1229b(d)(1), which refers to “a notice to appear under 

section 1229(a).” Pereira, 138 S. Ct. at 2116. The BIA 

ignored the plain text of the statute, violating a fundamental 

tenet of statutory interpretation: “The inquiry ceases if the 

statutory language is unambiguous and the statutory scheme 

is coherent and consistent.” Barnhart v. Sigmon Coal Co., 

534 U.S. 438, 450 (2002) (quotation marks omitted). More 

than that, the BIA disregarded the Supreme Court’s holding 

construing the statute in accordance with its plain language.

As the dissenting opinion in Mendoza-Hernandez 

explained:

The reasoning of the Supreme Court in 

Pereira . . . leaves little room for doubt that 

the Court’s decision requires us to follow the 

plain language of the Act that the DHS must 

serve a [8 U.S.C. § 1229(a)(1)] “notice to 

appear” that includes the date, time, and place 

of hearing in order to trigger the “stop-time” 

rule. The Court in Pereira repeatedly 

emphasized the “plain text” of the “stoptime” rule and left no room for agency gapfilling as to whether an Immigration Court 

can “complete” or “cure” a putative “notice 

to appear” by subsequent issuance of a 

“notice of hearing” that would trigger the 

“stop-time” rule on the date of that event. 

Quite simply, . . . a “notice of hearing” is not 

a “notice to appear” and, therefore, it does not 

satisfy the requirement that the DHS serve a 

[Section 1229(a)(1)] “notice to appear” that 

specifies the date and time of hearing, in 

order to trigger the “stop-time” rule.
16 LORENZO LOPEZ V. BARR

27 I. & N. Dec. at 540–41 (dissenting opinion) (footnote 

omitted). This rationale accords with our holding above and 

the plain language of the statute. The lack of ambiguity in 

the statutory language provides us with yet another reason to 

“not resort to Chevron deference,” Pereira, 138 S. Ct. at 

2113, and to not accord any deference to the BIA’s contrary 

holding, as it was unmoored from the text, see Nat’l Cable 

& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 

967, 982–83 (2005). In so holding, we follow the lead of the 

Supreme Court’s recent decision in BNSF Railway Co. v. 

Loos, 139 S. Ct. 893, 899 (2019), which interpreted a statute 

as we do here—relying on cross-references to similar terms 

across provisions—without any reference to the agency’s 

interpretation of the same provision.

Third, to the extent the BIA relied upon the Third 

Circuit’s holding in Orozco-Velasquez v. Attorney General, 

817 F.3d 78 (3d Cir. 2016), or other similar holdings such as 

Popa, those cases cannot be reconciled with Pereira. The 

BIA cannot rely on abrogated decisions in hopes of securing 

deference from the very courts that issued the now-defunct 

precedent. Such an approach would be hopelessly circular.

Moreover, the BIA presumes that because the issue of 

whether a “‘perfected’ notice to appear” may stop time “was 

not before the Court,” prior decisions interpreting the stoptime rule were unaffected by Pereira. Mendoza-Hernandez, 

27 I. & N. Dec. at 530. The BIA reads too much into the 

Court’s judicial restraint and fails to recognize that none of 

these pre-Pereira decisions “take into account the Supreme 

Court’s determination that the ‘stop-time’ rule contains plain 

and unambiguous language” that the “‘stop-time’ rule is 

triggered by service of a . . . ‘notice to appear” that specifies 

the time and place of a hearing as an essential part of the 

charging document.” Id. at 541–43 (dissenting opinion). 
LORENZO LOPEZ V. BARR 17

Thus, we agree with the dissenters in Mendoza-Hernandez

and accord no deference to the BIA’s flawed analysis.

Skirting the statutory text, the Attorney General points to 

purportedly analogous areas of law where an initial defect 

may be cured by a litigant’s subsequent acts. For instance, 

Becker v. Montgomery held that an unsigned notice of appeal 

is timely if signed after the time to appeal has expired. 

532 U.S. 757, 760 (2001). But Pereira distinguished Becker,

explaining that “omission of time-and-place information is 

not . . . some trivial, ministerial defect, akin to an unsigned 

notice of appeal. Failing to specify integral information like 

the time and place of removal proceedings unquestionably 

would deprive the notice to appear of its essential character.” 

Pereira, 138 S. Ct. at 2116–17 (citations, quotation marks, 

and brackets omitted). Similarly, in Scarborough v. Principi, 

the Supreme Court held that amendment of a timely 

application that failed to include a necessary allegation was 

permissible because the rule requiring specific allegations 

was aimed, like the signature requirement in Becker, “at 

stemming the urge to litigate irresponsibly.” 541 U.S. 401, 

416 (2004) (quoting Edelman v. Lynchburg Coll., 535 U.S. 

106, 116 (2002)). The Scarborough Court went on to explain 

that “the allegation does not serve an essential notice-giving 

function,” and so curative amendment was appropriate. Id.

at 416–17.

Conversely, the primary function of a Notice to Appear 

is to give notice, which is essential to the removal 

proceeding, Pereira, 138 S. Ct. at 2114–15, so the Attorney 

General’s reliance on Becker, Scarborough, and Edelman is 

misplaced. Each of those cases allowed litigants to correct 

trivial or ministerial errors. The requirements of a Notice to 

Appear, however, are “substantive.” Id. at 2116. Substantive 

defects may not be cured by a subsequent Notice of Hearing 
18 LORENZO LOPEZ V. BARR

that likewise fails to conform with the substantive 

requirements of Section 1229(a)(1). As nothing precludes 

DHS from issuing a Notice to Appear that conforms to the 

statutory definition, that is the appropriate course of action 

for the agency to follow in such situations.

DHS’s ability to issue a Notice that complies with the 

statute limits the set of cases affected by our holding. 

Retrospectively, although nearly all Notices to Appear 

issued between 2015 and 2018 lacked time and date 

information, see Pereira, 138 S. Ct. at 2111, the Attorney 

General conceded at oral argument that DHS can reissue 

complete Notices to Appear to those who have been served 

defective ones. The cases most affected by our holding will 

be those where a defective Notice to Appear issued so near 

to when an alien attained the requisite years of residence that 

DHS cannot reissue a complete Notice to Appear before the 

statutory period elapses. Prospectively, the Supreme Court 

noted that software exists that would enable DHS and the 

Immigration Court to “schedule hearings before sending 

notices to appear.” Pereira, 138 S. Ct. at 2119.

In a final attempt to salvage his argument, the Attorney 

General suggests that Karingithi should inform our decision. 

But Karingithi addressed whether a defective Notice to 

Appear vests the Immigration Court with jurisdiction. 

Karingithi, 913 F.3d at 1160–61. It did not address whether 

a Notice of Hearing can cure a defective Notice to Appear. 

Instead, we held that because a regulation properly governs 

what a notice must contain to vest jurisdiction, the statutory 

definition of a Notice to Appear did not control. Id. at 1161. 

As we explained, “Pereira simply has no application [to the 

Immigration Court’s jurisdiction]. . . . [T]he only question 

[in Pereira] was whether the petitioner was eligible for 

cancellation of removal.” Id. But our decision here is based 
LORENZO LOPEZ V. BARR 19

on the statute’s text, not a regulation, and we are assessing 

eligibility for cancellation of removal.

Finally, the dicta from the Eleventh Circuit’s 

unpublished non-precedential opinion in Molina-Guillen v. 

U.S. Attorney General, 2019 WL 669715 (11th Cir. Feb. 19, 

2019), does not alter our conclusion. Not only had the 

petitioner abandoned the argument that a Notice of Hearing 

cannot cure a defective Notice to Appear, but MolinaGuillen does not engage the statutory text. Id. at *4. It merely 

notes that a subsequent “Notice of Hearing, which contained 

the date and time of the removal hearing, was served on 

Molina-Guillen . . . . Together, the December 2005 Notice to 

Appear and the March 2006 Notice of Hearing fulfilled the 

notice requirements in § 1229(a)(1).” Id. We are 

unpersuaded by this cursory analysis.

CONCLUSION

We hold that a Notice to Appear that is defective under 

Pereira cannot be cured by a subsequent Notice of Hearing. 

The law does not permit multiple documents to collectively 

satisfy the requirements of a Notice to Appear. Thus, 

Lorenzo never received a valid Notice to Appear and his 

residency continued beyond 2008. Accordingly, he has 

resided in the United States for over seven years and is 

eligible for cancellation of removal.

Because we hold that Lorenzo’s residence was not 

terminated, there is no need to opine on his other arguments. 

Moreover, the question presented here is purely legal, so 

remand to consider the impact of Pereira is unwarranted. See 

Ceguerra v. Sec’y of Health & Human Servs., 933 F.2d 735, 

741 (9th Cir. 1991) (“[A] purely legal inquiry . . . does not 

require remand.”); see also Ortiz-Magana v. Mukasey, 

542 F.3d 653, 658 n.1 (9th Cir. 2008) (declining to remand 
20 LORENZO LOPEZ V. BARR

where “no additional information would be available that 

previously was not” and the panel “can resolve the legal 

question on the basis of available evidence”). Accordingly, 

we GRANT the petition for review.

CALLAHAN, Circuit Judge dissenting:

I agree with the majority that the United States Supreme 

Court’s opinion in Pereira v. Sessions, 138 S. Ct. 2105 

(2018), incontrovertibly establishes that for a notice to 

appear to trigger the “stop-time rule,”1 the noncitizen must 

be provided with the time and place of the removal 

proceedings.2 However, I do not read Pereira as holding 

that the notice of the time and place must be provided in a 

single document. Rather, I read Pereira as not prohibiting 

the Government from supplementing a deficient notice to 

appear by subsequently providing notice of the time and 

place of the removal proceedings, with the consequence that 

the stop-time rule is triggered upon receipt of the 

supplemental notice.

Initially, it should be noted that the majority’s critical 

holding—that all items listed in 8 U.S.C. § 1229(a)(1) must 

 1 Noncitizens who are subject to removal proceedings but have 

accrued 10 years of continuous physical presence in the United States 

may be eligible for cancellation of removal. 8 U.S.C. § 1229(b)(1). The 

“stop-time rule” set forth in § 1229b(d)(1) provides that the period of 

continuous physical presence ends when a noncitizen is served with a 

notice to appear under 8 U.S.C. §1229(a). See Pereira, 138 S. Ct. 

at 2109.

2 Consistent with the Supreme Court’s opinion in Pereira, 138 S. Ct. 

2110 n.1, the term “noncitizen” is used to refer to any person who is not 

a citizen or national of the United States.
LORENZO LOPEZ V. BARR 21

be contained in a single Notice to Appear—was not in issue 

in Pereira, and accordingly was not directly addressed by 

the Supreme Court. Pereira entered the United States as a 

temporary “non-immigrant visitor” in 2000. Pereira, 138 S. 

Ct. at 2112. He was arrested for operating a vehicle while 

under the influence of alcohol in 2006. Id. In May 2006, the 

Department of Homeland Security (“DHS”) served him with 

a “Notice to Appear,” which stated that removal proceedings 

were being initiated against him for overstaying his visa, but 

“the notice did not specify the date and time of Pereira’s 

removal hearing.” Id. More than a year later, DHS 

attempted to mail Pereira “a more specific notice setting the 

date and time for his initial removal hearing.” Id. “But that 

second notice was sent to Pereira’s street address rather than 

his post office box (which he had provided to DHS), so it 

was returned as undeliverable.” Id. In 2013, Pereira was 

arrested for driving without his headlights on and was 

subsequently detained by DHS. Id. By this time, if the stoptime rule was not triggered by the 2006 notice, Pereira had 

long since accrued the necessary years of continuous 

physical presence in the United States to be eligible for 

cancellation of removal. See 8 U.S.C. § 1229b(b)(1). 

Because DHS failed to serve Pereira with a supplemental 

notice prior to Pereira having been in the United States for 

over a dozen years, the Supreme Court was not called upon 

to, and did not, address whether all the requirements of a 

notice to appear listed in § 1229(a) must be contained in a 

single document.3

 3 Title 8 U.S.C. § 1229(a)(1) states:

(a) Notice to appear
22 LORENZO LOPEZ V. BARR

 

(1) In general

In removal proceedings under section 1229a of 

this title, written notice (in this section referred to 

as a “notice to appear”) shall be given in person 

to the alien (or, if personal service is not 

practicable, through service by mail to the alien or 

to the alien's counsel of record, if any) specifying 

the following:

(A) The nature of the proceedings against the 

alien.

(B) The legal authority under which the 

proceedings are conducted.

(C) The acts or conduct alleged to be in violation 

of law.

(D) The charges against the alien and the statutory 

provisions alleged to have been violated.

(E) The alien may be represented by counsel and 

the alien will be provided (i) a period of time to 

secure counsel under subsection (b)(1) and (ii) a 

current list of counsel prepared under subsection 

(b)(2).

(F)(i) The requirement that the alien must 

immediately provide (or have provided) the 

Attorney General with a written record of an 

address and telephone number (if any) at which 

the alien may be contacted respecting proceedings 

under section 1229a of this title.

(ii) The requirement that the alien must provide 

the Attorney General immediately with a written 

record of any change of the alien's address or 

telephone number.
LORENZO LOPEZ V. BARR 23

Instead, the Court first narrowed the dispositive question 

to whether “a ‘notice to appear’ that does not specify the 

‘time and place at which the proceedings will be held,’ as 

required by § 1229(a)(1)(G)(i), trigger[s] the stop-time 

rule.” Id. at 2113. It then held, contrary to the position 

advocated by the Government, that “[a] putative notice to 

appear that fails to designate the specific time or place of the 

noncitizen’s proceeding is not a ‘notice to appear under 

section 1229(a),’ and so does not trigger the stop-time rule.” 

Id. at 2114.

From the Pereira holding, the majority leaps to the 

conclusion that the notice of hearing that Lorenzo 

subsequently received—that did provide notice of the time 

and place of his removal proceeding—did not, as a matter of 

law, cure the defect in the initial notice to appear, and that 

the only cure is for DHS to issue, now years later, a new 

“Notice To Appear.” Maj. Op. at 19.

The majority first supports its conclusion not by relying 

on the Supreme Court’s opinion in Pereira, but by rejecting 

the Government’s reliance on our opinion in Popa v. Holder, 

571 F.3d 890 (9th Cir. 2009). Maj. Op. at 7–10. But the 

Supreme Court’s rejection of our holding in Popa that a 

notice to appear need not contain the time and place of the 

 (iii) The consequences under section 1229a(b)(5) 

of this title of failure to provide address and 

telephone information pursuant to this

subparagraph.

(G)(i) The time and place at which the 

proceedings will be held. (ii) The consequences 

under section 1229a(b)(5) of this title of the 

failure, except under exceptional circumstances, 

to appear at such proceedings.
24 LORENZO LOPEZ V. BARR

proceedings, says nothing about whether all items listed in 

§ 1229(a)(1) need to be contained in a single document.

Similarly, the majority’s assertion that the Supreme 

Court “scrapped the notion that ‘practical considerations’ . . .

excuse[d] the failure to provide ‘specific time, date and 

place’ information,’” Maj. Op. at 11, again says nothing 

about whether a notice that fails to provide this information 

can be cured by a subsequent document that fully provides 

specific time, date, and place information.

Instead, the majority asserts that § 1229(a) “speaks 

clearly” in rejecting the position that the requisite notice may 

be contained in more than one document. The majority 

reasons that because 8 U.S.C. § 1229b(d)(1) states “when the 

alien is served a notice to appear,” the “use of the singular 

indicates that service of a single document—not multiple—

triggers the stop-time rule.” Maj. Op. at 12. But even if 

§ 1229b(d)(1)’s use of the singular contemplates that the 

notice to appear is generally issued in a single document, it 

does not follow that all the criteria listed in § 1229(a) must

be contained in a single document.4

The majority reads too much into the “use of the 

singular” in § 1229b. Title 1 U.S.C. § 1 states that “[i]n 

determining the meaning of any Act of Congress, unless the 

context indicates otherwise– words importing the singular 

include and apply to several persons, parties or things. . . .” 

The statutory context provides no indication that the use of 

the singular in § 1229b(d)(1) imposes a formalistic 

 4 A further indication that the Supreme Court in Pereira was 

concerned with the general need for notice of the time and place of the 

removal proceedings may be gleaned from its discussion of the need for 

a “notice to appear,” rather than a single “Notice to Appear” containing 

all of the criteria set forth in § 1229(a)(1).
LORENZO LOPEZ V. BARR 25

requirement that the notice be provided within a single 

document and that a deficiency may not be “cured” by a 

subsequent notice that includes the previously missing time 

and place information. Section 1229(a)(2) contemplates that 

there may be changes in the time or place of the removal 

proceedings of which the noncitizen must be notified. Here, 

Lorenzo was served with an April 11, 2008 notice of hearing 

setting forth the time and place for his removal proceedings 

and he appeared, with counsel, before the IJ on June 27, 

2018. There can be no doubt that Lorenzo had actual notice 

of the time and place of his removal proceedings well before 

his June 27, 2018 hearing. The statute’s use of the singular 

is too slender a reed to support the majority’s insistence that 

all the criteria in § 1229(a)(1) must be contained in a single 

document.

The majority’s cite to United States v. Hayes, 555 U.S. 

415, 421 (2009), hardly strengthens the reed because, in my 

view, the majority’s reliance on “a notice” frustrates, rather 

than furthers, “Congress’ aim.” Id. at 422 n.5. Furthermore, 

the Board of Immigration Appeals, sitting en banc, has 

declined to read the provision as requiring that the “written 

notice be in a single document.” Matters of MendozaHernandez and Capula-Cortes, 27 I. & N. Dec. 520, 531 

(BIA 2019) (en banc).5

 5 The BIA continued:

Rather, it may be provided in one or more 

documents—in a single or multiple mailings. And it 

may be served personally, by mail, or by a 

combination of both, so long as the essential 

information is conveyed in writing and fairly informs 

the alien of the time and place of the proceeding.
26 LORENZO LOPEZ V. BARR

The Supreme Court’s concern in Pereira was with 

noncitizens receiving notification of the time and place of 

the removal proceedings and not with whether all the 

information was contained in a single document, entitled 

“Notice to Appear.” In other words, the court was concerned 

with the noncitizen receiving the information rather than the 

form of the notice. Indeed, all the concerns underlying the 

Supreme Court’s ruling in Pereira are satisfied by a properly 

served second document that supplements a deficient initial 

notice. The second notice then provides noncitizens with 

notice of the time and place of the proceedings that “is the 

essential function of a notice to appear, for without it, the 

Government cannot reasonably expect the noncitizen to 

appear for his removal proceeding.” Pereira, 138 S. Ct. at 

2115. Similarly, such a notice would assure the noncitizen 

of the opportunity to secure counsel before the hearing. See 

id. at 2114–15; see also 8 U.S.C. § 1229(a)(2)(b)(1) 

(requiring that in order to allow the noncitizen to secure 

counsel, the hearing date shall not be scheduled earlier than 

10 days after the service of the notice). Also, allowing the 

Government to furnish time and place information in a 

second document and triggering the stop-time rule on receipt 

of that notice make it more difficult for a noncitizen “to 

manipulate or delay removal proceedings to ‘buy time.’” Id. 

at 2119.

My reading of Pereira is also the BIA’s position. 

Mendoza-Hernandez, 27 I. & N. Dec. 520. In reading 

Pereira, the BIA stressed the Court’s restriction of its ruling 

to a narrow issue, and its choice not to address the two-part 

notice process. Id. at 527–28. The BIA noted that the Court 

“explained that the fundamental purpose of notice is to 

convey essential information to the [noncitizen], such that 

 Mendoza-Hernandez, 27 I. & N. Dec. at 531.
LORENZO LOPEZ V. BARR 27

the notice creates a reasonable expectation of the 

[noncitizen’s] appearance at the removal proceeding.” Id. at 

531. The BIA held:

We conclude that in cases where a notice to 

appear does not specify the time or place of 

[a noncitizen’s] initial removal hearing, the 

subsequent service of a notice of hearing 

containing that information perfects the 

deficient notice to appear, triggers the “stoptime” rule, and ends the [noncitizen’s] period 

of continuous residence or physical presence 

in the United States.

Id. at 529.6 Id. at 535. The BIA further observed that 

“[n]one of the courts involved in the circuit split had held 

that service of a subsequent notice of hearing that included 

time and place information was insufficient to perfect the 

notice to appear.” Id. at 534–35.

The majority declines to defer to Mendoza-Hernandez, 

but the majority’s reasoning is not persuasive. It first 

suggests that we do not defer to an agency’s interpretation of 

a Supreme Court opinion. Maj. Op. at 14. True enough, but 

this does not mean that the position of the agency most 

effected by a statute does not deserve some consideration. 

Moreover, as I have explained, my reading of Pereira, 

although consistent with the BIA’s reading, is in no way 

 6 This position was foretold in the BIA’s decision in Matter of 

Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018). There the BIA 

held that a notice to appear that did not specify the time and place of a 

noncitizen’s removal hearing nonetheless vests the IJ with jurisdiction 

over the removal proceedings. The BIA emphasized that unlike Pereira, 

Bermudez-Cota “was properly served with both a notice to appear and a 

subsequent notice of hearing.” Id. at 443.
28 LORENZO LOPEZ V. BARR

based on the BIA’s decision. Second, the majority asserts 

that the BIA’s analysis is disingenuous. Maj. Op. at 14. But 

this is just another way of disagreeing with my perspective 

and the BIA’s perspective, as demonstrated by the majority’s 

reliance on the dissent in Mendoza-Hernandez. The 

majority asserts that there is no ambiguity in the statute, but 

I find the BIA’s recognition that Pereira can be read in a 

literal sense to reach a different result to be a fairer 

description of the overall question. Finally, the majority 

argues that the BIA may not rely on prior circuit decisions, 

such as Popa, because they were abrogated by Pereira. Maj. 

Op. at 16. But Pereira’s abrogation of cases such as Popa

was not a ruling on the two-part notice process at issue in 

this case. 

I continue to read Pereira as allowing for a two-part 

notice process and find this approach to be consistent with 

our opinion in Karingithi v. Whitaker, 913 F.3d 1158 (9th 

Cir. 2019). Karingithi, like Lorenzo, had received a notice 

to appear that did not specify the date and time of the 

removal hearing.7 Id. at 1159. Karingithi argued “that if a 

notice to appear does not state the time for her initial removal 

hearing, it is not only defective under § 1229(a), but also 

does not vest jurisdiction with the IJ.” Id. at 1160. We 

disagreed, holding that the Immigration Court’s jurisdiction 

was governed by regulation, not by § 1229(a), and thus a 

notice to appear need not include time and date information 

to vest jurisdiction in the IJ. Id. We held that “Pereira

simply has no application here,” noting that the only 

question in Pereira “was whether the petitioner was eligible 

for cancellation of removal,” and the “Court’s resolution of 

 7 Our opinion also noted that Karingithi “had actual notice of the 

hearings through multiple follow-up notices that provided the date and 

time of each hearing.” Id. at 1159.
LORENZO LOPEZ V. BARR 29

that ‘narrow question’ cannot be recast into a broad 

jurisdictional rule.” Id. at 1161.

Although Karingithi, as well as Bermudez-Cota, 27 I. & 

N. Dec. 441, concerned the interpretation of regulations that 

are not applicable to Lorenzo’s case, the majority, like 

Karingithi and Bermudez-Cota, seeks to expand the “narrow 

question” addressed in Pereira into a broad pronouncement. 

The sounder approach, as reflected in our opinion in 

Karingithi, and in the BIA’s en banc opinion in MendozaHernandez is to abide by the Supreme Court’s statement that 

it decided the “much narrower” issue. Pereira, 138 S. Ct. 

at 2113.

Furthermore, we should not frustrate Congressional 

intent by expanding Pereira beyond its narrow holding. 

Section 1229b sets forth a clear policy that a noncitizen 

becomes eligible for cancellation of removal only after 

residing in the country for a certain number of years. 

Furthermore, § 1229b(d)(1) clearly states that “any period of 

continuous residence or continuous physical presence” ends 

“when the alien is served a notice to appear.” Pereira 

requires that DHS’s misinterpretation of the statute as 

permitting notices that do not set forth the time and place for 

removal proceedings be corrected. That misinterpretation 

and the concerns underlying Pereira are resolved by 

allowing DHS to cure an initial notice to appear with a 

subsequent notice of hearing setting forth the time and place 

of the removal proceeding and stopping the clock upon the 

noncitizen’s receipt of the subsequent notice. Requiring 

DHS to serve new notices to appear on all noncitizens who 

received deficient notices to appear, rather than allowing for 

subsequent notices of hearing, is a windfall for noncitizens 

and unnecessarily interferes with Congress’s intent.
30 LORENZO LOPEZ V. BARR

I read Pereira as allowing DHS to cure a deficient notice 

to appear by subsequently providing a noncitizen with actual 

notice of the time and place of the removal proceedings, with 

the result that the stop-time rule is triggered upon the 

noncitizen’s receipt of the supplemental notice. 

Accordingly, I dissent from the majority’s opinion.