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Matter of Renata MIRANDA-CORDIERO, Respondent

Decided May 22, 2019

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor

termination of the proceedings is required where an alien who was served with a notice to 

appear that did not specify the time and place of the initial removal hearing failed to provide 

an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 

(2018), distinguished.

FOR RESPONDENT: Renee LaRosee, Esquire, Elizabeth, New Jersey

BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK,

Board Members

GRANT, Board Member: 

In a decision dated January 9, 2018, an Immigration Judge denied the

respondent’s motion to sua sponte reopen her removal proceedings. The

respondent has appealed from that decision.1 The appeal will be dismissed. 

The respondent is a native and citizen of Brazil who entered the United 

States on March 8, 2005, without being admitted or paroled. At that time, 

she was personally served with a Notice to Appear (Form I-862) ordering her 

to appear for a hearing before an Immigration Judge in San Antonio, Texas, 

at a date and time to be set. The respondent refused to provide an address 

at which she could be contacted during the removal proceedings.2 When she 

did not appear for her hearing on May 11, 2005, the Immigration Judge 

ordered her removed in absentia pursuant to section 240(b)(5) of the 

Immigration and Nationality Act, 8 U.S.C. § 1229(b)(5) (2012).

1 As the Immigration Judge pointed out, the respondent submitted documents in support 

of her motion to reopen indicating a name and date of birth different from those on the 

documents presented by the Government in her prior proceedings. She has offered no 

explanation for this disparity. For purposes of this decision, we will assume that the two 

names represent the same individual, but we note that the respondent has not established 

this as a matter of fact.

2 The respondent’s notice to appear and her Record of Deportable/Inadmissible Alien

(Form I-213) both show that, after she was notified by service of the notice to appear of 

her obligation to provide an address where she could be reached during the course of the

removal proceedings, she refused to give that information.
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On July 5, 2017, the respondent filed a motion requesting sua sponte 

reopening of the proceedings to rescind her removal order so that she could 

file an Application for Provisional Unlawful Presence Waiver (Form I-601A)

based on her marriage to a United States citizen and her approved visa

petition. The Immigration Judge denied the motion, stating that he declined 

to exercise sua sponte authority to reopen the proceedings because he lacked 

jurisdiction over the waiver, which she could seek from the U.S. Citizenship 

and Immigration Services (“USCIS”). He further found that the respondent 

did not allege any exceptional situation or circumstances that would warrant 

sua sponte reopening. 

On appeal, the respondent argues that the Immigration Judge erred in 

stating that a provisional waiver of unlawful presence is available to her 

despite her outstanding in absentia order of removal and in providing no 

analysis for his finding that she did not present exceptional circumstances.

In addition, the respondent relies on the intervening decision of the Supreme 

Court in Pereira v. Sessions, 138 S. Ct. 2105 (2018), to assert that her notice 

to appear was invalid because it did not contain a specific date and time for 

her initial removal hearing, as required by section 239(a)(1)(G) of the Act, 

8 U.S.C. § 1229(a)(1)(G) (2012). In this regard, she claims that if her 

proceedings are reopened pursuant to Pereira, she will be eligible for 

cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. 

§ 1229b(b)(1) (2012).

We will first address the respondent’s argument regarding Pereira. The 

Supreme Court in Pereira, focused on the question whether a notice to appear

that lacks a specific time and place of hearing triggers the “stop-time” rule

for purposes of cancellation of removal under section 240A(d)(1)(A) of the 

Act. Pereira, 138 S. Ct. at 2113 (stating that the question before the Court

was “narrow”). It did not hold that such a deficient notice to appear is invalid 

for all purposes, including for initiating removal proceedings. Matter of 

Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018); see also Matter of 

Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520, 523–24 (BIA

2019).

The regulations at 8 C.F.R. § 1003.14(a) (2018) provide that

“[j]urisdiction vests, and proceedings before an Immigration Judge 

commence, when a charging document is filed with the Immigration Court.” 

Furthermore, although 8 C.F.R. § 1003.15(c) (2018) requires that a notice to 

appear must provide certain information, the date and time of the hearing are 

not included. In any event, § 1003.15(c) states that failure to provide any of 

the enumerated items “shall not be construed as affording the alien any 

substantive or procedural rights.” 

Furthermore, rescission of the respondent’s in absentia order of removal 

is not mandated by Pereira. In contrast to the provisions of the Act at issue 
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in Pereira, the statute regarding the entry of an in absentia order provides 

that “[a]ny alien who, after written notice required under paragraph (1) or (2)

of section 239(a) has been provided to the alien or the alien’s counsel of 

record, does not attend a proceeding under this section” may be ordered 

removed in absentia. Section 240(b)(5)(A) of the Act (emphasis added).

Because the statute uses the disjunctive term “or” rather than the conjunctive 

“and,” an in absentia order of removal may be entered if a written notice 

containing the time and place of the hearing was provided either in a notice 

to appear under section 239(a)(1) or in a subsequent notice of the time and

place of the hearing pursuant to section 239(a)(2).

In this case, a notice to appear was personally served on the respondent,

in which she was advised of her obligation to “notify the Immigration Court

immediately” any time she changed her address during the course of the 

removal proceedings. See also 8 C.F.R. § 1003.15(d) (2018) (requiring an 

alien to provide the Immigration Court with written notice of an address and 

telephone number at which he or she can be contacted). However, after 

receiving the notice to appear, the respondent refused to provide an address 

as specified in section 239(a)(1)(F) of the Act. See Matter of G-Y-R-, 23 I&N 

Dec. 181 (BIA 2001) (discussing an alien’s statutory address obligations).

Under section 240(b)(5)(B) of the Act, if “an alien has failed to provide 

the address required under section 239(a)(1)(F),” no written notice of the 

hearing is necessary to order the alien removed in absentia under section 

240(b)(5)(A), which, as noted, permits notice under section 239(a)(1) or (2).

Because the respondent refused to provide an address after she was advised 

of her obligation to do so in the notice to appear, notice of the time and place 

of her hearing was not required under either section of statute, so in absentia 

proceedings were appropriate.

In contrast, the alien in Pereira provided his correct address and 

established that he did not receive a notice of hearing. Pereira is also

distinguishable from the respondent’s case because she did not apply for 

cancellation of removal in 2005 and she was ordered removed by the 

Immigration Judge for reasons unrelated to the operation of the “stop-time” 

rule. Under the circumstances of this case, therefore, we conclude that the 

Supreme Court’s decision in Pereira is distinguishable and does not require 

that the respondent’s in absentia order of removal be rescinded or that her 

proceedings be terminated. See Matter of Pena-Mejia, 27 I&N Dec. 546,

550 (BIA 2019) (stating that Pereira “is inapplicable outside of the narrow 

context of the ‘stop-time’ rule” of section 240A(d)(1) of the Act, which is

distinct from the rules regarding failure to appear in section 240(b)(5)(A)).

Our holding is supported by the circuit courts that have considered the 

implications of Pereira in the context of in absentia proceedings. In 

Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 (5th Cir. 2018), the United 
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States Court of Appeals for the Fifth Circuit, in whose jurisdiction this case 

arises, upheld our decision declining to reopen or rescind an in absentia order 

of removal where the alien did not receive a notice of hearing as a result of 

his failure to provide a correct address to the Immigration Court. The court 

also noted that because the Supreme Court’s focus in Pereira was on the 

narrow question of the operation of the “stop-time” rule for cancellation of 

removal, it did not affect the court’s holding in Gomez-Palacios that an in 

absentia removal order should not be rescinded where lack of notice resulted 

from the alien’s failure to update his mailing address. Id. at 148 & n.1 (noting 

that since cancellation and reopening are “entirely different,” in cases 

involving reopening “Pereira’s rule regarding cancellation is inapplicable”);

see also Fuentes-Pena v. Barr, 917 F.3d 827, 830 n.2 (5th Cir. 2019).

The Sixth Circuit also addressed a situation involving an in absentia order 

of removal in Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019). The alien 

there argued that under Pereira, his notice to appear, which did not 

specify the date and time of the hearing, did not vest jurisdiction in the 

Immigration Court. Rejecting that assertion, the court found that Pereira is

distinguishable because it “(1) dealt with whether the narrow “stop-time” 

rule can be triggered by [a notice to appear] omitting the time and place of 

the initial hearing, and (2) addressed two statutory provisions distinct from 

the regulations at issue.” Id. at 489. The court also stated that the statute 

“does not address jurisdictional prerequisites” and that the regulations 

governing when and how jurisdiction vests with the Immigration Judge do 

not require references to the time and place of the hearing to vest jurisdiction. 

Id. at 490–91. Relying on section 240(b)(5)(A) of the Act, the court held that 

rescission of the alien’s in absentia order of removal was not warranted 

because the notice of hearing mailed to him at his listed address met the 

requirements of section 239(a)(2) regarding notice of the time and place of 

the hearing. Id. at 491–92; see also Molina-Guillen v. U.S. Att’y Gen., 758 

F. App’x 893, 898–99 (11th Cir. 2019) (per curiam) (distinguishing Pereira

where the alien received a notice of hearing supplying the missing date and 

time information, which together with the notice to appear “fulfilled the 

notice requirements” in section 239(a)(1) of the Act).

In regard to the denial of her motion to reopen sua sponte, the respondent 

argues that the Immigration Judge erred in stating that a provisional waiver 

of unlawful presence is available to her through the USCIS despite her

outstanding in absentia order of removal. She further asserts that the 

Immigration Judge provided no analysis for his finding that she did not

establish exceptional circumstances to warrant sua sponte reopening.

Whether proceedings should be reopened sua sponte is a discretionary 

determination to be made based on the totality of circumstances presented in 

each case. The respondent argued in her motion to reopen that she and her 
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United States citizen family members will suffer extreme hardship upon her 

removal based on their personal circumstances and the country conditions in 

Brazil. She is the beneficiary of an approved visa petition filed by her United 

States citizen husband, whom she married and had a child with after being

ordered removed in absentia. She submitted evidence regarding her personal 

and family circumstances and the country conditions in Brazil, along with

other supporting documents.

Upon our de novo review, we find that the respondent’s case does not 

present an exceptional situation that warrants the exercise of discretion to 

reopen sua sponte, regardless of the availability of a provisional waiver.3

Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (stating that the power to 

reopen sua sponte “is not meant to be used as a general cure for filing defects 

or to otherwise circumvent the regulations, where enforcing them might 

result in hardship”). Accordingly, we agree with the Immigration Judge’s 

decision denying the respondent’s motion to sua sponte reopen her in 

absentia removal proceedings, and we will dismiss her appeal.

ORDER: The appeal is dismissed.

3 As the Immigration Judge noted, individuals who are subject to a final order of removal 

may qualify for a provisional unlawful presence waiver of inadmissibility under certain 

circumstances. 8 C.F.R. § 212.7(e)(4)(iv) (2018).