In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4001

NAHAR SAID DABABNEH,

Petitioner,

v.

ALBERTO GONZALES, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A76-773-934

____________

ARGUED NOVEMBER, 11, 2006—DECIDED DECEMBER 19, 2006

____________

Before BAUER, POSNER, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge. Nahar Said Dababneh has lived

illegally in the Chicago area since December 1, 1993. On

April 14, 2003, the Department of Homeland Security

(“DHS”) served Dababneh with a Notice to Appear

(“NTA”), which did not include the time or date of his

removal hearing. DHS served Dababneh the NTA approximately a month and a half before he accumulated

ten years of continuous presence in the United States,

which would have made him eligible for cancellation of

deportation. After DHS filed the NTA, the Immigration

Court sent Dababneh a notice specifying the time and date

of his hearing. Dababneh filed a motion to terminate
2 No. 05-4001

proceedings alleging that the NTA was defective. The

Immigration Judge (“IJ”) denied the motion. Dababneh

conceded deportability, and the IJ granted him a voluntary

departure. Dababneh appealed the decision to the Immigration Board, which affirmed the IJ’s decision without

opinion. Dababneh now petitions this Court for review. For

the following reasons, we deny Dababneh’s petition.

I. BACKGROUND

Dababneh is a native and citizen of Jordan, who was

admitted to the United States on June 1, 1993 as a nonimmigrant visitor. Although he was only authorized to

remain in the country until December 1, 1993, he has lived

in the Chicago area since his entry. Dababneh is married

with two children who are U.S. citizens. In April 2003,

DHS discovered Dababneh’s presence in the country. On

April 14, 2003, a DHS agent personally served Dababneh

with an NTA. The NTA informed Dababneh that he was

removable under Immigration and Nationality Act (“INA”)

§ 237(a)(1)(B), and ordered him “to appear before an

Immigration Judge of the United States Department of

Justice at: 55 East Monroe Street Suite 900 Chicago,

Illinois US 60603 on a date to be set at a time to be set

to show why you should not be removed from the United

States based on the charge(s) set forth above.”

On May 1, 2003, DHS filed the NTA with the Immigration Court. On May 2, the Immigration Court sent

Dababneh a Notice of Hearing in Removal Proceedings

indicating that his case had been scheduled for a hearing

on May 23, 2003 at 9 AM. On May 23, because Dababneh

appeared before the IJ without counsel, the IJ rescheduled

the hearing for April 2, 2004.

The case was subsequently transferred to a second IJ,

who moved up the hearing date to January 13, 2004. On
No. 05-4001 3

that date, Dababneh appeared before the IJ with counsel,

arguing that DHS’s failure to include the date and time

of the initial hearing in the NTA rendered it defective. The

IJ requested briefing on the issue. On April 30, Dababneh

filed a motion to terminate proceedings repeating his

contention that the NTA did not specify the date and time

of his hearing. On May 5, DHS filed a response, arguing

that even if the NTA had a technical error by not specifying the date and time of the hearing, Dababneh suffered no

prejudice. On May 6, the IJ denied Dababneh’s motion to

terminate on the grounds provided in the government’s

response. On May 17, Dababneh filed a motion to reconsider, which the IJ denied on May 19.

On August 24, 2004, Dababneh appeared before the IJ

and conceded removability, designating Jordan as his

country of removal. Dababneh informed the IJ that he

was just short of having ten years of continuous physical

presence in the United States to qualify for cancellation

of removal. Because he entered the country on June 1,

1993, he was required to be continuously present in the

United States until June 1, 2003 to qualify for cancellation. DHS served Dababneh with the NTA on April 14,

2003, a month and a half before the qualifying date.

Pursuant to INA § 240(d), any period of continuous

residence or continuous physical presence in the United

States is cut off when the alien is served with an NTA

under INA § 239(a). Dababneh argued that because his

April 14, 2003 NTA did not include the date and time of

his hearing, his continuous presence should not be cut off

on that date. The IJ also found that Dababneh did not

have the necessary ten years prior to DHS’s service of the

NTA, but advised Dababneh that he could appeal from a

finding that the NTA was not defective.

On August 24, 2004, the IJ found Dababneh removable

and granted him a voluntary departure. Dababneh appealed the decision to the Immigration Board, which
4 No. 05-4001

1 The government asserts that Dababneh waived his argument

that the IJ lacked jurisdiction to find him removable. The

government cites Qureshi for the proposition that when a

petitioner expressly concedes his removability as charged in the

NTA, he waives any objection to the IJ’s finding of removability,

including the argument that the IJ lacked jurisdiction to find

him removable. This is a mis-reading of Qureshi because the

petitioner in that case failed to object to the admission of the

NTA, conceded his removability, and pleaded to the charge in

the NTA, all before claiming that the certificate of service

was defective. 442 F.3d at 990.

affirmed the IJ’s decision without opinion on September

22, 2005.

II. DISCUSSION

When the BIA affirms an IJ’s decision without opinion,

the IJ’s decision becomes that of the BIA for purposes of

judicial review. Qureshi v. Gonzales, 442 F.3d 985, 987

(7th Cir. 2006). Since Dababneh’s arguments are purely

legal, this Court reviews them de novo. Sayaxing v. INS,

179 F.3d 515, 519 (7th Cir. 1999).

A. Immigration Court’s Jurisdiction

Dababneh argues that the IJ did not have jurisdiction

to initiate his removal proceedings because DHS did not

specify the date and time of his initial hearing in the

NTA.1

 INA § 239(a) requires an NTA to specify, among

other pieces of information, “the nature of the proceedings against the alien, the legal authority under which

the proceedings are conducted, and the time and place

at which the proceedings will be held.” 8 U.S.C. § 1229

(emphasis added). Under the Immigration Court Rules

of Procedure, “[j]urisdiction vests, and proceedings before
No. 05-4001 5

an Immigration Judge commence, when a charging

document is filed with the Immigration Court by the

Service.” 8 C.F.R. § 1003.14(a). The implementing regulations also state that “[DHS] shall provide in the [NTA], the

time, place[,] and date of the initial removal hearing,

where practicable. If that information is not contained

in the [NTA], the Immigration Court shall be responsible

for scheduling the initial removal hearing and providing notice to the government and the alien of the time,

place and date of hearing.” 8 C.F.R. § 1003.18. Dababneh

argues that the statute and the regulations, read together,

vest jurisdiction with the Immigration Court when DHS

files a charging document with the court, but only when

the charging document is in accordance with INA § 239.

The fact that the government fulfilled its obligations

under INA § 239(a) in two documents—rather than one—

did not deprive the IJ of jurisdiction to initiate removal

proceedings. The Eighth Circuit’s decision in Haider v.

Gonzales, 438 F.3d 902 (8th Cir. 2005), is instructive. In

Haider, the INS served the petitioner with an NTA that

ordered the petitioner to appear before an IJ in

Bloomington, Minnesota, “on a date to be set at a time to

be set to show why the petitioner should not be removed

from the United States.” Id. at 904. The INS filed the NTA

with the Immigration Court a month later, at which time

the Immigration Court scheduled the hearing’s date and

time. The Immigration Court then mailed the petitioner

a Notice of Hearing in Removal Proceedings (NOH). The

court held that its “reading of the INA and the regulations

compel[led] the conclusion that the NTA and the NOH,

which were properly served on [the petitioner], combined

to provide the requisite notice.” Id. at 907. The court

said that “the INA simply requires than an alien be

provided written notice of his hearing; it does not require

that the NTA served on [the petitioner] satisfy all of

§ 1229(a)(1)’s notice requirements.” Id.
6 No. 05-4001

We agree with the Eighth Circuit’s interpretation of

INA § 239. DHS frequently serves NTAs where there is

no immediate access to docketing information. In those

circumstances, DHS may indicate in the NTA that it

will give the alien subsequent notice of the precise time

and place of the hearing once it files the NTA with the

appropriate immigration court. See 8 C.F.R. § 1003.18.

That is the case here. This is not a scenario in which

the government failed to include any information regarding time and date, or worse, purposefully omitted that

information. Rather, DHS informed Dababneh that more

information would be forthcoming. The government filed

the NTA with the Immigration Court on May 1, 2003, and,

as required by the regulations, the Immigration Court

sent Dababneh specific information regarding the date

and time of his hearing the very next day. Together, the

NTA and the subsequent hearing notice met all of the

requirements of § 239(a)(1). Dababneh clearly received

the second notice because he appeared at the scheduled

hearing.

Dababneh argues that the government was required to

demonstrate why it was not practicable to include the

time and date of the hearing. See 8 CFR § 1003.18 (the

NTA shall provide time, date, place information, where

practicable). Assuming the government’s failure violated

the regulation, Dababneh must demonstrate that he

suffered actual prejudice as a result of the violation.

Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir.

2002). Dababneh claims that he was prejudiced because

“one may assume that had the government taken the

extra time to properly prepare and file the NTA, petitioner

may well have had the required physical presence.” This

argument fails because any prejudice on that basis is

wholly speculative. Indeed, there is no reason to believe

that it would have taken DHS a month and a half to file

and serve a proper NTA. Moreover, Dababneh’s prepara-
No. 05-4001 7

2 The government briefly argues that this Court is without

jurisdiction to hear Dababneh’s argument under INA § 242(g),

which provides that “no court shall have jurisdiction to hear

any cause or claim by or on behalf of any alien arising from

the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal order . . . .”

8 U.S.C. § 1252(g). The government characterizes Dababneh’s

argument as a claim that the proceedings against him should

have commenced later. This is not an accurate assessment of

Dababneh’s claims. Dababneh does not challenge the decision to

commence proceedings against him; rather, he contends that

his NTA was defective and therefore his continuous physical

presence should not have been cut off under § 240(A)(d). The

question of whether his NTA was defective is a pure question

of law, and this Court has jurisdiction to review Dababneh’s

petition. See Rosales-Pineda v. Gonzales, 452 F.3d 627, 630 (7th

Cir. 2006).

tion for his removal hearing was not prejudiced either.

The IJ continued the proceedings for 11 months until

Dababneh had counsel. Thus, Dababneh had plenty of

time to find an attorney and prepare a defense.

Consequently, the fact that the government fulfilled

its requirements under INA § 239(a) in two documents

did not strip the IJ of jurisdiction. Under 8 C.F.R.

§ 1003.14(a), the IJ had jurisdiction once DHS filed the

NTA with the Immigration Court on May 1, 2003.

B. Continuous Presence

Dababneh also argues that a defective NTA should not

cut off accrual of physical presence under INA § 240A(d).2

Section 240A(d) provides that, “[f]or purposes of this

section, any period of continuous physical presence in the

United States shall be deemed to end when the alien is

served notice to appear under section 1229(a) of this title.”
8 No. 05-4001

8 U.S.C. § 1229(b) (the stop-time rule). “The starting

point in statutory interpretation is the language of the

statute itself.” United States v. James, 478 U.S. 597, 604

(1985). The language of INA § 240A(d) is clear: if an alien

has received an NTA, the period of continuous presence

is deemed to end. Here, Dababneh received an effective

NTA that met the § 239 requirements through receipt of

both the NTA and the NOH. Accordingly, once DHS served

Dababneh with those documents, the stop-time rule cut

off his accrual of physical presence.

Dababneh argues that this Court has closely scrutinized

legislation that cuts off an alien’s ability to apply for

beneficial relief, citing Reyes-Hernandez v. INS, 89 F.3d

490 (7th Cir. 1996), and Jideonwo v. INS, 224 F.3d 692

(7th Cir. 2000). In Reyes-Hernandez and Jideonwo, this

Court dealt with questions regarding the retroactivity of

§ 440(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA), which extinguished relief for a certain class of aliens under INA § 212(c). In both cases, the

petitioners made decisions (one pled guilty to criminal

charges opening himself up to deportation, and one

conceded deportability) relying on the availability of

relief from deportation under INA § 212(c). The Court

held that retroactively applying AEDPA § 440(d) would

not be fair in those cases. Jideonwo, 224 F.3d at 701;

Reyes-Hernandez, 89 F.3d at 493. There is no analogy

between those cases and the case before us now. Dababneh

did not make a decision in reliance on available relief

only to have that relief extinguished by subsequent

legislation. Congress passed INA § 240A(d) in 1996, and

thus there is no retroactivity challenge here.

III. CONCLUSION

For the above stated reasons, we DENY Dababneh’s

petition for review.
No. 05-4001 9

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-19-06