United States Court of Appeals 

For the First Circuit 

No. 19-1053 

DANIELSON MENDES GONCALVES PONTES, 

Petitioner, 

v. 

WILLIAM P. BARR, 

UNITED STATES ATTORNEY GENERAL, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Torruella, Selya, and Kayatta, 

Circuit Judges. 

Jerome P. Mayer-Cantu, with whom Philip L. Torrey and 

Crimmigration Clinic, Harvard Law School, were on brief, for 

petitioner. 

Kari Hong, Ninth Circuit Appellate Program, Boston College 

Law School, on brief for Retired Immigration Judges et al., amici 

curiae. 

Lindsay Corliss, Trial Attorney, Office of Immigration 

Litigation, U.S. Department of Justice, with whom Joseph H. Hunt, 

Assistant Attorney General, Civil Division, Daniel E. Goldman and 

Brianne Whelan Cohen, Senior Litigation Counsels, Office of 

Immigration Litigation, were on brief, for respondent. 

September 6, 2019 
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SELYA, Circuit Judge. The petitioner, Danielson Mendes 

Goncalves Pontes, is a Cape Verdean national. He seeks judicial 

review of a final order of the Board of Immigration Appeals (BIA) 

ordering him removed to his homeland and denying his motions to 

terminate removal proceedings. Addressing a challenge to the 

manner in which immigration courts obtain jurisdiction over 

removal proceedings — a challenge that has potentially broad 

implications and that hinges on a question of first impression in 

this circuit — we conclude that the Supreme Court's decision in 

Pereira v. Sessions, 138 S. Ct. 2105 (2018), did not invalidate 

the Notice to Appear (NTA) that served as the charging document in 

the petitioner's removal proceedings. Based on this conclusion, 

we hold that the petitioner's motions to terminate his removal 

proceedings were properly denied and that the BIA's final order of 

removal was in accordance with law. Accordingly, we deny the 

petition for judicial review. 

I. BACKGROUND 

The petitioner was admitted to the United States and 

became a lawful permanent resident on March 2, 2010. On December 

20, 2013, he was convicted in a Massachusetts court of violating 

a protective order. See Mass. Gen. Laws ch. 209A, § 7. In 

September 2017, federal authorities served him with an NTA, which 

informed him that he was being charged with removability based on 

the protective-order conviction, see 8 U.S.C. § 1227(a)(2)(E)(ii), 
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and directed him to appear in the immigration court in Boston on 

an unspecified future date. 

In January of 2018, the petitioner was taken into custody 

by Immigration and Customs Enforcement agents and detained at a 

Massachusetts correctional facility. The following month, he was 

served with a notice of hearing, which directed him to appear in 

the Boston immigration court on February 22, 2018, at 1:00 p.m. 

The petitioner participated in that hearing remotely from the 

correctional facility, and the proceedings were continued on March 

1. At the March hearing, the petitioner submitted written 

pleadings admitting the factual allegations of the NTA, conceding 

removability as charged, and indicating his intention to apply for 

relief from removal. Although the petitioner initially signaled 

that he would seek cancellation of removal, see id. § 1229b, he 

subsequently abandoned that avenue and sought only adjustment of 

status, see id. § 1255, with a request in the alternative for 

voluntary departure. 

After a two-day hearing in July of 2018, the immigration 

judge (IJ) denied the petitioner's application for relief 

(including his request for voluntary departure) and ordered him 

removed to Cape Verde. The IJ assumed, arguendo, that the 

petitioner had satisfied the statutory eligibility requirements 

for adjustment of status, see id. § 1255(i)(2), but found that 

"significant adverse factors . . . weigh[ed] heavily against a 
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discretionary grant of adjustment of status." This compendium of 

adverse factors included restraining orders filed against him by 

several women as a result of violent or threatening behavior. 

The petitioner appealed to the BIA. While his appeal 

was pending, the petitioner filed two alternative motions seeking 

either to terminate removal proceedings or to remand to the 

immigration court. In these motions, he contended that — under 

Pereira, which the Supreme Court had decided some weeks before his 

July hearing — his NTA was ineffective as a charging document 

because it failed to include the date and time of the contemplated 

removal hearing. Consequently, he posited, the immigration court 

lacked jurisdiction over his case and the removal order was a 

nullity. 

On December 28, 2018, the BIA dismissed the petitioner's 

appeal, adopting and affirming the IJ's decision. Denying the 

petitioner's motions to terminate the proceedings or to remand, 

the BIA determined that Pereira did not undermine the immigration 

court's jurisdiction. In support, the BIA noted that it had 

rejected essentially the same argument in an earlier case. See In 

re Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018). 

This timely petition for judicial review followed. See 

8 U.S.C. § 1252. 
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II. ANALYSIS 

In this venue, the petitioner challenges only the BIA's 

denial of his motions to terminate the proceedings. As framed, 

his challenge rests on a purely legal question, and we review the 

BIA's answers to questions of law de novo, "with some deference to 

the agency's expertise in interpreting both the statutes that 

govern its operations and its own implementing regulations." 

Cabrera v. Lynch, 805 F.3d 391, 393 (1st Cir. 2015). Nevertheless, 

"[i]f 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. NRDC, 467 U.S. 837, 842-43 (1984). 

Here, the NTA used to commence the petitioner's removal 

proceedings was issued pursuant to regulations promulgated by the 

Attorney General specifically to govern the commencement of 

removal proceedings under the Immigration and Nationality Act 

(INA), 8 U.S.C. §§ 1101-1537. In relevant part, these regulations 

provide that "[j]urisdiction vests, and proceedings before an 

Immigration Judge commence, when a charging document is filed with 

the Immigration Court." 8 C.F.R. § 1003.14(a). The term "charging 

document," in turn, is defined to include "a Notice to Appear, a 

Notice of Referral to Immigration Judge, and a Notice of Intention 

to Rescind and Request for Hearing by Alien." Id. § 1003.13. 
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The regulations also specify what information must be 

contained in an NTA, such as the nature of the proceedings against 

the alien, the legal authority for the proceedings, and the charges 

brought. See id. § 1003.15. Of particular pertinence for present 

purposes, the regulations state that an NTA need only provide the 

time and place of the initial hearing "where practicable." Id. 

§ 1003.18(b). 

The petitioner targets these regulations, arguing that 

they do not control the substantive requirements of an NTA. In 

his view, Congress delineated those requirements in the INA itself, 

see 8 U.S.C. § 1229(a), and the statute trumps the regulations. 

This is critically important because, even though the substantive 

requirements of section 1229(a) largely mirror those limned in the 

regulations, there is at least one significant difference. Section 

1229(a) states that the time and place of the removal hearing must 

be specified in the notice, see id. § 1229(a)(1)(G)(i), but it 

omits the qualifier that this must be done only "where 

practicable." Analyzing this statutory provision in Pereira, the 

Supreme Court held 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).'" 

138 S. Ct. at 2113-14. 

The petitioner seizes upon this holding. He asserts 

that because the NTA that initiated the removal proceedings against 
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him did not include the date and time of his contemplated hearing, 

it was defective as a charging document and, thus, was ineffectual 

to commence removal proceedings. As a result, the petitioner says, 

the immigration court never acquired jurisdiction over his removal 

proceedings, and the agency's final order of removal is a nullity. 

Refined to bare essence, the petitioner challenges the 

Attorney General's authority to promulgate regulations governing 

removal proceedings that contain substantive requirements for an 

NTA different from those contained in section 1229(a). Given the 

holding in Pereira, this challenge has a patina of plausibility — 

but that patina dissolves upon further scrutiny. 

We begin by acknowledging that Congress has granted the 

Attorney General broad powers to "establish such regulations 

. . . as the Attorney General determines to be necessary" for 

implementation of the INA. 8 U.S.C. § 1103(g)(2). Of course, 

that authority — though broad — may not be exercised "in a manner 

that is inconsistent with the administrative structure that 

Congress enacted into law." FDA v. Brown & Williamson Tobacco 

Corp., 529 U.S. 120, 125 (2000) (quoting ETSI Pipeline Project v. 

Missouri, 484 U.S. 495, 517 (1988)). Thus, the efficacy of the 

petitioner's challenge necessarily depends on whether Congress has 

spoken unambiguously to this issue or, conversely, whether it has 

left some room in which the Attorney General is entitled to 
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exercise his discretion. See Smith v. Berryhill, 139 S. Ct. 1765, 

1778 (2019); Chevron, 467 U.S. at 843-44. 

With respect to removal proceedings, Congress has spoken 

to the substantive requirements of an NTA only in section 1229(a). 

This provision states in pertinent part that "[i]n removal 

proceedings under section 1229a . . . , written notice (in this 

section referred to as a 'notice to appear') shall be given . . . 

to the alien." 8 U.S.C. § 1229(a)(1). It then provides that such 

a notice must specify, inter alia, "[t]he time and place at which 

the proceedings will be held." Id. § 1229(a)(1)(G)(i). 

In Pereira, 138 S. Ct. at 2110, the Supreme Court 

assessed section 1229(a) as it relates to the stop-time rule, see 

8 U.S.C. § 1229b(d)(1), which governs the length of an alien's 

continuous physical presence in the United States for the purpose 

of an application for cancellation of removal. By its terms, the 

stop-time rule applies once "the alien is served a notice to appear 

under section 1229(a)." Id. Reading "the plain text of the 

statute," the Pereira Court found congressional intent unambiguous 

as to the "time and place" requirements of section 1229(a). 138 

S. Ct. at 2114. The Court then held that section 1229b(d)(1) — 

the stop-time rule — imports those same requirements. See id. 

The petitioner's removal proceedings, though, were not 

instituted under section 1229(a). The question before us, then, 

is whether the requirements that section 1229(a) establishes for 
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NTAs pertain to the commencement of removal proceedings generally. 

The petitioner invites us to hold that "under Pereira, the phrase 

'notice to appear' means the same thing throughout the [INA]" and, 

therefore, the "time and place" requirements of section 1229(a) 

override any regulation issued by the Attorney General in 

implementing the INA. For the reasons explained below, we decline 

the petitioner's invitation. In reaching this result, we answer 

a question of first impression in this circuit. But we do not 

break new ground: rather, we join a number of courts of appeals 

that have rejected similar arguments. See Pierre-Paul v. Barr, 

930 F.3d 684, 689-90 (5th Cir. 2019); United States v. Cortez, 930 

F.3d 350, 363 (4th Cir. 2019), as amended (July 19, 2019); Nkomo 

v. Att'y Gen., 930 F.3d 129, 133 (3d Cir. 2019); Ali v. Barr, 924 

F.3d 983, 986 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 

101, 110 (2d Cir. 2019); Soriano-Mendosa v. Barr, 768 F. App'x 

796, 802 (10th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 

1160 (9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305, 

314-15 (6th Cir. 2018). 

To begin, the Pereira Court repeatedly emphasized the 

isthmian nature of its holding, making pellucid that it addressed 

only the "narrow question" before it: "If the Government serves 

a noncitizen with a document that is labeled 'notice to appear,' 

but the document fails to specify either the time or place of the 

removal proceedings, does it trigger the stop-time rule?" 138 S. 
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Ct. at 2110. And in concluding that such a document does not 

animate the stop-time rule, the Court zeroed in on circumstances 

specific to that rule. 

For instance, the Court's reasoning rested in material 

part on the stop-time rule's explicit reference to a notice to 

appear "under section 1229(a)." See id. at 2117. Because the 

stop-time rule did not otherwise set forth its own definition of 

a notice to appear, the Court applied the "normal rule of statutory 

construction that identical words used in different parts of the 

same act are intended to have the same meaning." Id. at 2115 

(quoting Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 571 

(2012)). Similarly, the Court leaned on the specific purpose of 

the stop-time rule in interpreting that rule's reference to a 

notice to appear. See id. 

We honor both the letter of the narrow holding in Pereira 

and the spirit behind it in refusing to extend the Court's 

reasoning to contexts other than those explicitly contemplated in 

that decision. We add, moreover, that the extensive implications 

of the petitioner's argument do not align with a narrow reading of 

Pereira. Were we to adopt the petitioner's argument, the upshot 

would be that every removal proceeding previously commenced by an 

NTA devoid of time and place information would be vulnerable to a 

post hoc challenge. 
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We do not think that the Pereira Court meant to conceal 

so significant a shifting of the tectonic plates within the 

curtilage of its answer to the confined question that it 

addressed.1 Under Pereira, then, the challenged regulations may 

conflict with congressional intent (and therefore lack force) only 

if they are somehow tied to the "time and place" requirements that 

Congress delineated in section 1229(a) concerning written notice 

to an alien. We turn to that inquiry. 

We conclude that, in promulgating the challenged 

regulations, the Attorney General has not strayed into forbidden 

terrain. Unlike the stop-time rule, the regulations contain no 

explicit reference to section 1229(a), see Hernandez-Perez, 911 

F.3d at 313, and they are not "textually glued" to that provision, 

Pierre-Paul, 930 F.3d at 690. Moreover, they contain their own 

specification of the substantive requirements that an NTA must 

satisfy, rendering inapposite the "normal rule of statutory 

construction" upon which the Pereira Court relied in interpreting 

the stop-time rule. See Karingithi, 913 F.3d at 1160. 

Perhaps more importantly, the regulations do not concern 

the written notice contemplated in section 1229(a). Section 

 1 Indeed, if the petitioner's argument were correct, then the 

immigration court would not have acquired jurisdiction over 

Pereira's removal proceedings and the Supreme Court would have had 

at hand a ready means for disposing of the case without pausing to 

delve into the intricacies of the stop-time rule. 
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1229(a) governs the information that must be provided to aliens, 

that is, "the 'time' and 'place,' that would enable them 'to 

appear' at the removal hearing in the first place." Pereira, 138 

S. Ct. at 2115. After all, without that information, "the 

Government cannot reasonably expect the noncitizen to appear for 

his removal proceedings." Id. 

The regulations are not concerned with the information 

that is provided to an alien. Instead, they set forth the process 

by which the immigration court obtains jurisdiction over a removal 

proceeding. See 8 C.F.R. § 1003.14. The procedure established by 

these regulations "'marks an agency internal boundary' that gives 

the immigration courts, rather than [some other subset of the 

agency], 'control over the docketing of cases.'" Cortez, 930 F.3d 

at 361-62 (citation omitted) (quoting United States v. Arroyo, 356 

F. Supp. 3d 619, 627-28 (W.D. Tex. 2018)). It follows, we think, 

that the challenged regulations and section 1229(a) speak to 

different audiences. On the one hand, the regulations deal with 

the commencement of proceedings in the immigration court. The 

statute, on the other hand, deals with notice to aliens of removal 

hearings. See id. at 366; Karingithi, 913 F.3d at 1160. As to 

the former, section 1229(a) says nothing about the rules of 

procedure that govern case docketing, see Karingithi, 913 F.3d at 

1160, so the Attorney General was "free to fashion [his] own rules 

of procedure" in this regard, Hernandez-Perez, 911 F.3d at 313 
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(quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543 

(1978)). 

To cinch the matter, the challenged regulations do not 

simultaneously operate to implement section 1229(a). After all, 

a "Notice to Appear" is referenced in 8 C.F.R. § 1003.13 as one 

among three examples in a non-exhaustive list defining a "charging 

document" for the purposes of 8 C.F.R. § 1003.14. Under the 

regulations, then, the filing of a charging document such as a 

Notice of Referral to Immigration Judge may establish the 

immigration court's jurisdiction over a case, commencing removal 

proceedings against an alien without resort to a Notice to Appear. 

That ends this aspect of the matter. For these reasons 

we hold that the challenged regulations are not in conflict either 

with section 1229(a) or with the Court's decision in Pereira. 

Relatedly, we hold that the Attorney General acted within the 

proper ambit of his statutory authority in formulating distinct 

substantive requirements applicable to NTAs for purposes of those 

regulations. To be sure, there is "some common-sense discomfort 

in adopting the position that a single document labeled 'Notice to 

Appear' must comply with a certain set of requirements for some 

purposes, like triggering the stop-time rule, but with a different 

set of requirements for others, like vesting jurisdiction with the 

immigration court." Hernandez-Perez, 911 F.3d at 314. But as we 

have pointed out in a different context, "words are like 
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chameleons; they frequently have different shades of meaning 

depending upon the circumstances." United States v. Romain, 393 

F.3d 63, 74 (1st Cir. 2004). And in all events, we do not ask 

whether the Attorney General has chosen either the wisest or the 

least convoluted course in implementing the INA but, rather, 

whether he acted within the scope of his authority. We conclude 

that he has. 

We add a coda. The BIA has likewise concluded that an 

NTA that is served without specification of the time and place of 

the initial hearing may be sufficient to confer subject-matter 

jurisdiction on an immigration court in removal proceedings. See 

Bermudez-Cota, 27 I. & N. Dec. at 447. In addition, the BIA has 

clarified its view that such a notice "vests an Immigration Judge 

with jurisdiction over the removal proceedings" when a notice of 

hearing is sent to the alien in advance of those proceedings. Id.2 

As this interpretation is neither "obviously erroneous or 

 2 Bermudez-Cota also purported to resolve the question of 

whether a two-step process could satisfy section 1229(a), 

concluding that it could. See 27 I. & N. Dec. at 447. We do not 

reach this question, but we note that there has been some 

disagreement among the courts of appeals as to whether the plain 

text of section 1229(a), as interpreted in Pereira, permits such 

a conclusion. Compare Perez-Sanchez v. U.S. Att'y Gen., ___ F.3d 

___, ___ (11th Cir. 2019) [No. 18-12578, slip. op. at 11] (finding 

that Pereira "foreclosed" Bermudez-Cota's conclusion that "an NTA 

under section 1229(a) is not deficient so long as a subsequent 

notice of hearing is later sent and specifies the time and location 

of the removal hearing"), with Pierre-Paul, 930 F.3d at 691 

(endorsing the two-step process). 
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inconsistent with the language of the regulation," we see no reason 

to depart from the general rule that "an agency's interpretation 

of its own regulations is entitled to great deference." Sidell v. 

Comm'r, 225 F.3d 103, 109 (1st Cir. 2000). It follows that because 

the petitioner's NTA complied with the regulations as reasonably 

interpreted by the BIA, it was effective to confer jurisdiction 

upon the immigration court.3

III. CONCLUSION 

We need go no further. For the reasons elucidated above, 

we hold that the petitioner's motions to terminate his removal 

proceedings were properly denied and that the BIA's final order of 

removal was in accordance with law. Hence, the petition for 

judicial review is 

Denied. 

 3 Because we hold that the NTA in this case was not defective 

under the regulations, we do not address a question taken up by 

several of our sister circuits — whether agency regulations can 

govern the subject-matter jurisdiction of an immigration court 

without statutory authority or whether such regulations instead 

must be understood as claim-processing rules. See, e.g., PerezSanchez v. U.S. Att'y Gen., ___ F.3d ___, ___ (11th Cir. 2019) 

[No. 18-12578, slip op. at 18]; Cortez, 930 F.3d at 359-62; PierrePaul, 930 F.3d at 691-93; Ortiz-Santiago v. Barr, 924 F.3d 956, 

963-64 (7th Cir. 2019), reh'g denied (July 18, 2019).