FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VARINDER SINGH,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 20-70050

Agency No.

A209-393-493

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 17, 2021

San Francisco, California

Filed February 4, 2022

Before: M. Margaret McKeown and Ronald M. Gould, 

Circuit Judges, and Donald W. Molloy,* District Judge.

Opinion by Judge Gould

* The Honorable Donald W. Molloy, United States District Judge 

for the District of Montana, sitting by designation.
2 SINGH V. GARLAND

SUMMARY**

Immigration

Granting Varinder Singh’s petition for review of a 

decision of the Board of Immigration Appeals, and 

remanding, the panel held that noncitizens must receive a 

Notice to Appear in a single document specifying the time 

and date of the noncitizen’s removal proceedings, otherwise 

any in absentia removal order directed at the noncitizen is 

subject to rescission pursuant to 8 U.S.C. 

§ 1229a(b)(5)(C)(ii).

Under § 1229a(b)(5)(C)(ii), an in absentia notice may be 

rescinded through a motion to reopen filed at any time if the 

noncitizen can show that they “did not receive notice in 

accordance with paragraph (1) or (2) of section 1229(a).” 

Section 1229(a), entitled, “Notice to Appear,” delineates the 

requirements that apply to such notice. Paragraph (1) 

defines the “notice to appear” and requires it specify certain 

information, including the “time and place at which the 

proceedings will be held.” Paragraph (2), entitled “Notice 

of change in time or place of proceedings,” explains what 

information must be provided if the government changes the 

time or place of the removal proceedings. 

In seeking rescission of his in absentia removal order, 

Singh relied on Pereira v. Sessions, 138 S. Ct. 2105 (2018), 

in which the Supreme Court held that a Notice to Appear that 

does not specify the time and date of removal proceedings 

does not trigger the “stop-time rule” for purposes of 

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

has been prepared by court staff for the convenience of the reader.
SINGH V. GARLAND 3

cancellation of removal. Singh contended that he did not 

receive the statutorily required notice under § 1229(a) 

because his Notice to Appear did not provide the date and 

time of his hearing. In affirming the denial of his motion to 

reopen, the BIA relied on Matter of Pena-Mejia, 27 I. & N. 

Dec. 546 (BIA 2019), in which the BIA had limited Pereira

to the stop-time rule context and held that rescission of an in 

absentia removal order is not required where the government 

provides the time and date of the hearing in a subsequent 

hearing notice, even if it is not provided in the Notice to 

Appear.

The panel disagreed that the omission of the time or date 

of a removal hearing could be cured by a subsequent hearing 

notice, concluding that this interpretation contravenes the 

unambiguous statutory text and the Supreme Court’s 

decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). 

In Niz-Chavez, the Supreme Court rejected this two-step 

practice, interpreting § 1229(a) to require a “single 

statutorily compliant document” to trigger the stop-time rule 

and concluding that a subsequent hearing notice could not 

cure a defective Notice to Appear. The panel explained that 

the reasoning in Niz-Chavez made clear that the government 

must provide all statutorily required information in a single 

Notice to Appear, not only to trigger the stop-time rule, but 

for all removal proceedings that require notice pursuant to 

§ 1229(a). Therefore, the panel joined the Fifth Circuit in 

holding that the Supreme Court’s separate interpretation of 

the § 1229(a) notice requirements in Niz-Chavez applies in 

the in absentia context. The panel also explained that its 

view was supported by the fact that the statutory provisions 

governing in absentia removal orders explicitly incorporate 

§ 1229(a) by reference, just like the statutory provision 

governing the stop-time rule. 
4 SINGH V. GARLAND

The government contended that because 

§ 1229a(b)(5)(A) is written in the disjunctive and allows for 

in absentia removal if a noncitizen received notice in 

accordance with paragraph (1) “or” (2) of § 1229(a), the 

government should be permitted to follow the two-step 

notice process in this context. The panel noted that the BIA 

had recently adopted that argument in Matter of Laparra, 

28 I. & N. Dec. 425 (BIA 2022). Looking to the plain text, 

the statutory structure, and common sense, the panel 

concluded that the “or” in the in absentia provisions 

accounts for situations in which the government needs to 

change or postpone a noncitizen’s removal hearing; it does 

not provide a textual backdoor to circumvent the writtennotice requirements enumerated in paragraph (1).

Because the government did not provide Singh with 

statutorily compliant notice before his removal hearing, the 

panel concluded that Singh’s in absentia removal order is 

subject to recission pursuant to 8 U.S.C. 

§ 1229a(b)(5)(C)(ii). The panel noted that it did not reach 

Singh’s argument that his order should be rescinded due to 

exceptional circumstances.

COUNSEL

Saad Ahmad (argued), Saad Ahmad & Associates, Fremont, 

California, for Petitioner.

William C. Minick (argued), Attorney; Linda S. Wernery, 

Assistant Director; United States Department of Justice, 

Civil Division, Office of Immigration Litigation, 

Washington, D.C.; for Respondent.
SINGH V. GARLAND 5

OPINION

GOULD, Circuit Judge:

This appeal requires us to decide what notice must be 

given to noncitizens before the government can order them 

removed in absentia.

The Immigration & Nationality Act provides for two 

ways in which an in absentia removal order can be 

rescinded. The first is through a motion to reopen filed 

within 180 days after the date of the order of removal if the 

noncitizen can show that their failure to appear was due to 

“exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). 

The second is through a motion to reopen “filed at any time” 

if the noncitizen can show that they “did not receive notice 

in accordance with paragraph (1) or (2) of section 1229(a) of 

this title.” § 1229a(b)(5)(C)(ii).

Petitioner Varinder Singh seeks rescission of hisremoval 

order, entered in absentia, under both ways to gain this 

relief. First, he contends that he did not receive proper notice 

under § 1229(a) pursuant to Pereira v. Sessions, 138 S. Ct. 

2105 (2018). Second, he argues that “exceptional 

circumstances” were present in his case.1 The Board of 

Immigration Appeals (“BIA”) affirmed the Immigration 

Judge’s denial of his motion to reopen and rejected both of 

his arguments. Because the decisions of the Immigration 

Judge and BIA rested on a legally erroneous interpretation 

of § 1229(a), we grant relief based on Singh’s first argument.

1 Singh’s motion to reopen was filed within the 180-day window 

required by 8 U.S.C. § 1229a(b)(5)(C)(i).
6 SINGH V. GARLAND

BACKGROUND

Singh is a native and citizen of India who entered the 

United States without inspection in 2016. The Department 

of Homeland Security (“DHS”) began removal proceedings 

against him and served him with a Notice to Appear. The 

Notice to Appear did not provide a date or time for Singh’s 

removal hearing, instead stating that the date and time were 

“TBD.”

DHS released Singh after he posted a bond that was paid 

for by a family friend. Singh then traveled to Indiana to live 

at one of the family friend’s homes but provided the 

immigration court with the address of one of the friend’s 

other residences because it was the more reliable mailing 

address. Unfortunately for Singh, the immigration court sent 

multiple hearing notices to the address, but his friend did not 

forward them to Singh until 2019. After Singh did not 

appear at his December 2018 removal hearing, an 

Immigration Judge ordered him removed in absentia. Once 

Singh learned of the hearing notices and in absentia removal 

order, he filed a motion to reopen and rescind the order.

Singh first argued that the in absentia order was invalid 

because the Notice to Appear that he received lacked time 

and date information. Relying on Pereira v. Sessions, 138 

S. Ct. 2105 (2018), Singh contended that he did not receive 

the statutorily required notice under § 1229(a) because the 

Notice to Appear that he received did not provide the date 

and time of his removal hearing. Second, Singh argued in 

the alternative that even if he received proper notice, the in 

absentia order should be rescinded because “exceptional 

circumstances” were present in his case.

The Immigration Judge denied the motion, reasoning 

that any defect in Singh’s initial Notice to Appear due to the 
SINGH V. GARLAND 7

absence of time-and-date information was cured by the 

subsequent hearing notices. As to Singh’s notice argument, 

the Immigration Judge concluded that Pereira was limited 

to the “narrow question” of whether a document labeled 

“Notice to Appear” that fails to specify the time or date of 

the removal proceedings nonetheless triggers the stop-time 

rule, which relates to a petitioner’s eligibility for 

cancellation of removal. Further, the Immigration Judge 

emphasized that though the Notice to Appear did not provide 

the date and time of Singh’s hearing, any alleged error was 

essentially harmless because the government subsequently 

sent hearing notices to Singh’s address that included this 

information. As to Singh’s “exceptional circumstances” 

argument, the Immigration Judge concluded that 

“exceptional circumstances” must be beyond a noncitizen’s 

control, and here, a failure in the innerworkings of his family 

friend’s household did not meet that requirement.

After the Immigration Judge’s decision, but before the 

BIA affirmed it, the BIA decided Matter of Pena-Mejia, 

27 I. & N. Dec. 546 (BIA 2019), in which it limited Pereira 

to the stop-time rule context and held that rescission of an in 

absentia removal order is not required where the government

provides the time and date of the hearing in a subsequent 

hearing notice, even if it is not provided in the initial Notice 

to Appear. Relying on this precedent, the BIA affirmed the 

Immigration Judge’s denial of Singh’s motion to reopen. 

The BIA also affirmed the Immigration Judge’s conclusion 

rejecting the “exceptional circumstances” ground for 

reopening. Singh timely petitioned this court for review.

We have jurisdiction to review his petition under 

8 U.S.C. § 1252(a)(1). We review the BIA’s denial of 

Singh’s motion to reopen for an abuse of discretion but 

review purely legal questions de novo. Bonilla v. Lynch, 840 
8 SINGH V. GARLAND

F.3d 575, 581 (9th Cir. 2016). We grant Singh’s petition and 

hold that noncitizens must receive a Notice to Appear in a 

single document specifying the time and date of the 

noncitizen’s removal proceedings, otherwise any in absentia 

removal order directed at the noncitizen is subject to 

rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). 

Because we hold that Singh received defective notice under 

§ 1229(a), we do not reach the issue whether “exceptional 

circumstances” were present in Singh’s case.

DISCUSSION

An in absentia removal order can be rescinded if a 

noncitizen “did not receive notice in accordance with 

paragraph (1) or (2) of section 1229(a).” 8 U.S.C. 

§ 1229a(b)(5)(c)(ii). Section 1229(a), in turn, is aptly named 

“Notice to Appear” and delineates the requirements that 

apply to such notice. Id. § 1229(a). Paragraph (1) defines 

the “notice to appear” and requires the government to 

specify seven enumerated categories of information 

including the “time and place at which the proceedings will 

be held” in that Notice to Appear. Id. § 1229(a)(1).

Paragraph (2) of section 1229(a), by contrast, explains 

what information must be provided if the government 

changes the time or place of the removal proceedings. 

Entitled “Notice of change in time or place of proceedings,” 

this subsection expressly states that “in the case of any 

change or postponement in the time and place of such 

proceedings . . . a written notice shall be given in person to 

the alien . . . specifying [] the new time or place of the 

proceedings” and describes the consequences of failing to 

appear. Id. § 1229(a)(2)(A). These notices of change in time 

or place of proceedings are commonly referred to as 

“hearing notices.”
SINGH V. GARLAND 9

The government contends, and the BIA accepted, that 

although Singh received a Notice to Appear that failed to 

state the time or date of his removal hearing, this omission 

was cured by the subsequent hearing notices sent to him 

pursuant to paragraph (2) of § 1229(a) notifying him of 

changes in time or place of his proceedings. We disagree 

because this interpretation of § 1229a(b)(5)(C)(ii) 

contravenes the unambiguous statutory text and the Supreme 

Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 

(2021).

I.

Section 1229(a)’s notice requirements have generated 

significant controversy in recent years. In Pereira v. 

Sessions, the Supreme Court considered whether a Notice to 

Appear that does not specify the time and date of removal 

proceedings nevertheless triggers the “stop-time rule” 

ending a noncitizen’s continuous presence for purposes of 

cancellation of removal. 138 S. Ct. at 2113. The Court 

determined that it “need not resort to Chevron deference” 

because the text of § 1229(a) is unambiguous, and a Notice 

to Appear that does not specify a time or place for the 

removal hearing “is not a ‘notice to appear under section 

1229(a)’” and as a result does not trigger the stop-time rule. 

Id. at 2113, 2114.

After Pereira, the government “could have responded 

. . . by issuing notices to appear with all the information 

§ 1229(a)(1) requires,” but instead it relied on a two-step 

practice—familiar to Singh—whereby it would serve a 

Notice to Appear with the time and date of the removal 

hearing “to be determined” and then subsequently send 

hearing notices with this information. Niz-Chavez, 141 S. Ct 

at 1479. The Court rejected this two-step practice in NizChavez, interpreting § 1229(a) to require a “single statutorily 
10 SINGH V. GARLAND

compliant document” to trigger the stop-time rule and 

concluding that a subsequent hearing notice could not cure a 

defective Notice to Appear. Id. at 1481.

Nevertheless, the government in this case asks us to 

approve the same two-step notice process for in absentia 

removal orders that the Supreme Court rejected in the stoptime-rule context in Niz-Chavez. Even if the BIA’s 

interpretation of the notice required for in absentia removal 

orders was reasonable in 2019 after Pereira, it does not 

survive Niz-Chavez.

In Matter of Pena-Mejia, the BIA cabined the reach of 

Pereira, holding that the Supreme Court’s interpretation of 

§1229(a) notice in Pereira was limited to the specific 

language in the stop-time rule. 27 I. & N. Dec. at 547. But 

in Niz-Chavez, the Supreme Court conducted a statutory 

analysis of § 1229(a) separate from its analysis of the stoptime rule. See Niz-Chavez, 141 S. Ct. at 1480–82. The 

Supreme Court began by analyzing the stop-time rule’s 

language in §1229b of the statute, but it then independently 

analyzed the text of § 1229(a) and rejected the government’s 

two-step approach to providing notice because that approach 

was inconsistent with the “singular article ‘a’” in 

§ 1229(a)(1). Id. at 1480. This reasoning demonstrates that 

the Supreme Court’s interpretation of § 1229(a)’s notice 

requirements in Niz-Chavez extends beyond the context of 

the stop-time rule.

Beyond performing a separate statutory analysis of 

§ 1229(a), the Supreme Court in Niz-Chavez also expressly 

interpreted the statutory provisions governing in absentia 

orders. Specifically, the Court explained that § 1229a(b)(7), 

which limits the discretionary relief available to certain 

noncitizens who receive in absentia orders, uses the singular 

article “the” before the word “notice.” Id. at 1483. This use 
SINGH V. GARLAND 11

of a definite article with a singular noun indicated to the 

Court that the statute speaks of a Notice to Appear as a 

“discrete” document offered at a single point in time rather 

than an “ongoing endeavor.” Id. This specific analysis of a 

statutory provision governing in absentia removal orders 

forecloses the government’s argument that the Court’s 

interpretations of notice in Pereira and Niz-Chavez should 

be limited to the stop-time rule context. Niz-Chavez made 

clear that the government must provide all statutorily 

required information in a single Notice to Appear, not only 

to trigger the stop-time rule, but for all removal proceedings 

that require notice pursuant to § 1229(a). We therefore join 

the Fifth Circuit in holding that the Supreme Court’s 

“separate interpretation of the § 1229(a) notice requirements 

in Niz-Chavez [] applies in the in absentia context” in 

addition to the stop-time-rule context. Rodriguez v. 

Garland, 15 F.4th 351, 355 (5th Cir. 2021).

Lending additional support to our view is the fact that the 

statutory provisions governing in absentia removal orders 

explicitly incorporate § 1229(a) by reference, just like the 

statutory provision governing the stop-time rule. See 

Pereira, 138 S. Ct. at 2114. Before an in absentia order can 

be issued, § 1229a(b)(5)(A) requires “written notice 

required under paragraph (1) or (2) of section 1229(a)” to be 

provided. Then, after an in absentia order has been issued, 

a noncitizen can seek rescission at any time if they “did not 

receive notice in accordance with paragraph (1) or (2) of 

section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii). Section 

1229a references § 1229(a) notice a third time when it limits 

discretionary relief for noncitizens who fail to appear at their 

proceedings when they received oral notice in addition to the 

“notice described in paragraph (1) or (2) of section 1229(a).” 

Id. § 1229a(b)(7). These three explicit references provide 

“the glue” binding “the substantive time-and-place 
12 SINGH V. GARLAND

requirements mandated by § 1229(a)” to in absentia removal 

orders, just as they are bound to the stop-time rule. See 

Karingithi v. Whitaker, 913 F.3d 1158, 1161 (9th Cir. 2019) 

(quoting Pereira, 138 S. Ct. at 2117).

II.

The government reasons that because § 1229a(b)(5)(A) 

is written in the disjunctive and allows for in absentia 

removal if a noncitizen received notice in accordance with 

paragraph (1) “or” (2) of §1229(a), the government should 

be permitted to follow the two-step notice process in the in 

absentia removal context, even though the Supreme Court 

rejected that two-step notice process in the stop-time rule 

context. See Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 

(2021). The BIA recently adopted the government’s 

argument in Matter of Laparra, 28 I. & N. Dec. 425 (BIA 

2022). We are not persuaded by the government or the BIA 

that the word “or” in § 1229a(b)(5)(A) displaces the 

Supreme Court’s interpretations of “Notice to Appear” in 

Pereira and Niz-Chavez. The plain text, the statutory 

structure, and common sense command otherwise.

First, by the plain text of paragraph (2) of § 1229(a) there 

can be no valid notice under paragraph (2) without valid 

notice under paragraph (1). Paragraph (2) is entitled “Notice 

of change in time or place of proceedings,” and it requires 

that “in the case of any change or postponement in the time 

and place” of the removal proceedings, written notice must 

be provided to the noncitizen specifying the new time or 

place. 8 U.S.C. § 1229(a)(2)(A). This text presupposes—

and common sense confirms—that the Notice to Appear 

provided in paragraph (1) must have included a date and time 

because otherwise, a “change” in the time or place is not 

possible. We are surprised that the government would argue 
SINGH V. GARLAND 13

otherwise given that the Supreme Court already adopted this 

plain reading of paragraph (2) in Pereira:

By allowing for a “change or postponement” 

of the proceedings to a “new time or place,” 

paragraph (2) presumes that the Government 

has already served a “notice to appear under 

section 1229(a)” that specified a time and

place as required by § 1229(a)(1)(G)(i). 

Otherwise, there would be no time or place to 

“change or postpon[e].” § 1229(a)(2) . . . .

Paragraph (2) clearly reinforces the 

conclusion that “a notice to appear under 

section 1229(a),” § 1229b(d)(1), must 

include at least the time and place of the 

removal proceedings . . . .

138 S. Ct. at 2114.

Section 1229(a) also begins with unambiguous 

definitional language, explaining that “written notice” is “in 

this section referred to as a ‘notice to appear.’” 8 U.S.C. 

§ 1229(a)(1). Throughout § 1229(a), then, any reference to 

written notice is the “Notice to Appear” defined in paragraph 

(1) with its accompanying enumerated requirements. By 

definition, subsequent hearing notices under paragraph (2) 

are not, by themselves, “written notice” under § 1229(a) 

because they are not a “Notice to Appear” but rather a 

“Notice of change in time or place of proceedings.” Id.

§ 1229(a)(2).

A look at the statutory structure of Section 1229(a) 

resolves any doubt. Paragraph (1), longer and more 

descriptive, defines the initial “Notice to Appear” and what 

it must include. Id. § 1229(a)(1). Paragraph (2), shorter in 

length, describes only what is required when there has been 
14 SINGH V. GARLAND

a “Notice of change in time or place of proceedings.” Id. 

§ 1229(a)(2). Paragraph (2) requires the government to 

provide the noncitizen with the new time and date of the 

hearing and sets forth the consequences of not showing up; 

it does not repeat the long list of requirements for written 

notice contained in paragraph (1). The hearing notices that 

the government sent Singh under paragraph (2), then, are 

additions to, and not alternatives to, the Notice to Appear 

described in paragraph (1). Thus, the “or” in 

§ 1229a(b)(5)(C)(ii) accounts for situations in which the

government needs to change or postpone a noncitizen’s 

removal hearing; it does not provide a textual backdoor to 

circumvent the written-notice requirements enumerated in 

paragraph (1).

CONCLUSION

The Supreme Court’s decisions in Pereira and NizChavez, along with the text and structure of the statutory 

provisions governing in absentia removal orders and Notices 

to Appear, unambiguously required the government to 

provide Singh with a Notice to Appear as a single document 

that included all the information set forth in 8 U.S.C. 

§ 1229(a)(1), including the time and date of the removal 

proceedings. Because the government did not provide Singh 

with statutorily compliant notice before his removal hearing, 

Singh’s in absentia removal order is subject to recission 

pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). We grant Singh’s 

petition on that ground, do not reach his exceptional 

circumstances argument, and remand to the BIA for further 

proceedings consistent with this opinion.

PETITION GRANTED and REMANDED.