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Matter of Silvestre MENDOZA-HERNANDEZ, Respondent
Matter of Rufina CAPULA-CORTES, Respondent
Decided May 1, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A deficient notice to appear that does not include the time and place of an alien’s initial
removal hearing is perfected by the subsequent service of a notice of hearing specifying
that missing information, which satisfies the notice requirements of section 239(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), and triggers the “stop-time”
rule of section 240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A) (2012). Pereira
v. Sessions, 138 S. Ct. 2105 (2018), distinguished; Matter of Bermudez-Cota, 27 I&N Dec.
441 (BIA 2018), followed.
FOR RESPONDENTS: Terence S. Coonan, Esquire, Tallahassee, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Legal Advisor

Donald W. Cassidy,

BEFORE: Board En Banc: NEAL, Chairman; MALPHRUS, WENDTLAND,
MULLANE, GREER, MANN, O’CONNOR, LIEBOWITZ, and KELLY, Board
Members. Dissenting Opinion: GUENDELSBERGER, joined by ADKINS-BLANCH,
Vice Chairman; COLE, GRANT, CREPPY, KENDALL CLARK, Board Members.
GREER, Board Member:

In a decision dated August 14, 2017, an Immigration Judge found the
respondents removable under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as aliens present in the
United States without being admitted or paroled. She also denied their
applications for cancellation of removal under section 240A(b)(1) of the Act,
8 U.S.C. § 1229b(b)(1) (2012), finding that they lacked the requisite period
of continuous physical presence. The respondents have appealed from that
decision, arguing that they are not foreclosed from establishing continuous
physical presence pursuant to Pereira v. Sessions, 138 S. Ct. 2105 (2018).
The record will be remanded to the Immigration Judge for further
proceedings.

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I. FACTUAL AND PROCEDURAL HISTORY
The respondents, a husband and wife, are both natives and citizens of
Mexico. On October 11, 2010, the Department of Homeland Security
(“DHS”) served the respondents with notices to appear charging them with
removability. The notices to appear did not specify the time or place at which
the respondents’ initial removal hearing would be held. The DHS
commenced removal proceedings on November 22, 2010, by filing the
notices to appear with the Immigration Court. On December 8, 2010, the
Immigration Court mailed notices of hearing to the respondents, which stated
that their initial removal hearing was scheduled for 9:00 a.m. on January 6,
2011, in Miami. The respondents appeared at this and several subsequent
hearings. Their attorney entered a notice of appearance on March 24, 2011.
The respondents filed applications for cancellation of removal, which the
Immigration Judge denied, finding that they did not demonstrate they had
been physically present in the United States for a continuous period of
10 years prior to the October 2010 service of the notice to appear, as required
by section 240A(b)(1)(A) of the Act and the “stop-time” rule in section
240A(d)(1)(A). 1 In her decision, the Immigration Judge found that the
respondents submitted documentary evidence establishing physical presence
since 2005, but she determined that they did not adequately demonstrate
presence since October 2000. 2 On September 5, 2017, the respondents filed
a motion to reopen with the Immigration Court, seeking to submit additional
evidence relating to their physical presence before 2005. The respondents
also filed a notice of appeal with the Board on September 11, 2017. 3
While their appeal was pending, the respondents filed another motion to
remand based on Pereira. In that case, the Supreme Court rejected our
1

The “stop-time” rule in section 240A(d)(1)(A) of the Act states, in pertinent part, that
“any period of continuous residence or continuous physical presence in the United States
shall be deemed to end . . . when the alien is served a notice to appear under section 239(a).”
As relevant to this decision, section 239(a)(1) of the Act provides:
In removal proceedings under section 240 [of the Act, 8 U.S.C. § 1229a (2012)],
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:
....
(G)(i) The time and place at which the proceedings will be held.

2

The Immigration Judge determined that the respondents had otherwise established
eligibility for relief, which is not in dispute on appeal.
3
Because the respondents filed their notice of appeal before the Immigration Judge issued
a decision on the pending motion, jurisdiction over the motion vested with the Board. The
motion is now before us as a motion to remand. See 8 C.F.R. § 1003.2(c)(4) (2018).

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decision in Matter of Camarillo, 25 I&N Dec. 644, 651 (BIA 2011), where
we held that “service of a notice to appear triggers the ‘stop-time’ rule,
regardless of whether the date and time of the hearing have been included in
the document.” Instead, the Court held that a notice to appear that does not
specify the time and place of an alien’s removal proceedings “is not a ‘notice
to appear under section [239(a) of the Act, 8 U.S.C. § 1229(a) (2012)]’ and
therefore does not trigger the stop-time rule.” Pereira, 138 S. Ct. at 2110
(quoting section 240A(d)(1)(A) of the Act). Citing Pereira, the respondents
argue that the service of their notices to appear was insufficient to trigger the
“stop-time” rule and that the proceedings should be remanded for service of
new “legally sufficient” notices to appear.
We requested supplemental briefing from the parties. In response to one
of our inquiries, the respondents argue that the Immigration Court’s
subsequent service of a notice of hearing that conveyed time and place
information did not trigger the “stop-time” rule because “jurisdiction has
never vested” with the Immigration Court. They further assert that subject
matter jurisdiction cannot be waived by their personal appearance before the
Immigration Court and that their continuous physical presence will continue
to accrue until the DHS issues notices to appear that include the time and
place of their removal hearing.
In its supplemental brief, the DHS contends that the respondents’ notices
to appear, in combination with the notices of hearing specifying the time and
place of their proceedings, provided the necessary written notice required by
section 239(a)(1) of the Act to trigger the “stop-time” rule. The DHS further
argues that the respondents are ineligible for cancellation of removal because
they did not establish 10 years of continuous physical presence prior to
service of the notices of hearing that contained information regarding the
time and place of their initial hearing.

II. ISSUE
The issue before us is whether the “stop-time” rule, which provides for
termination of continuous residence and physical presence in the United
States, is triggered when an alien who was served with a notice to appear that
did not specify the time and place of the initial removal hearing is
subsequently served with a notice of hearing that includes that essential
information.

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III. ANALYSIS
A. Jurisdiction
As an initial matter, we conclude that the respondents’ jurisdictional
arguments are foreclosed by Matter of Bermudez-Cota, 27 I&N Dec. 441
(BIA 2018). In that case, we held that “a notice to appear that does not
specify the time and place of an alien’s initial removal hearing vests an
Immigration Judge with jurisdiction over the removal proceedings and meets
the requirements of section 239(a) of the Act, so long as a notice of hearing
specifying this information is later sent to the alien.” Id. at 447.
To date, the United States Courts of Appeals for the Second, Sixth, and
Ninth Circuits have considered and deferred to Bermudez-Cota in
precedential decisions. See Banegas Gomez v. Barr, No. 15-3269, 2019 WL
1768914, at *6–8 (2d Cir. Apr. 23, 2019) (holding that jurisdiction vests with
the Immigration Court when the initial notice to appear does not specify the
time and place of the proceedings, but notices of hearing served later include
that information); Karingithi v. Whitaker, 913 F.3d 1158, 1159–62 (9th Cir.
2019) (same); Hernandez-Perez v. Whitaker, 911 F.3d 305, 312–15 (6th Cir.
2018) (same). 4
Additionally, the Eleventh Circuit, in whose jurisdiction this case arises,
recently rejected an alien’s argument that she did not receive notice of her
removal hearing because the notice to appear did not include the date and
time of the hearing. See Molina-Guillen v. U.S. Att’y Gen., 758 F. App’x
893, 898 (11th Cir. 2019) (per curiam). The court held that the deficient
notice to appear and the subsequent notice of hearing supplying the missing
information “[t]ogether . . . fulfilled the notice requirements in [section
239(a)(1)].” Id. at 898–99. The Eleventh Circuit therefore determined that
the Immigration Judge “was authorized to enter the removal order in [the
alien’s] absence when she failed to appear at the hearing.” Id. (citing section
240(b)(5)(A) of the Act, 8 U.S.C. § 1229a(b)(5)(A) (2012)). 5
4

The Sixth Circuit recently followed Hernandez-Perez and Karingithi in holding that an
Immigration Judge properly exercised jurisdiction where information regarding the time
and place of the hearing, which was missing from the notice to appear, was provided in a
notice of hearing that was subsequently issued, notwithstanding the alien’s claim that he
did not receive the notice of hearing. See Santos-Santos v. Barr, 917 F.3d 486, 491–92
(6th Cir. 2019). The court did not mention Matter of Bermudez-Cota in its decision.
5
Section 240(b)(5)(A) of the Act provides in pertinent part:
Any 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, shall be ordered removed in absentia if the [DHS]

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In this case, the respondents were properly served with notices of hearing
providing time and place information, and they attended all their scheduled
removal hearings. We therefore find no jurisdictional defect in their
proceedings that would warrant termination or remand on this basis. See
Matter of Bermudez-Cota, 27 I&N Dec. at 447.
B. Case Law Regarding the “Stop-Time” Rule
Prior case law governing this issue is instructive and sheds light on the
narrow character of the holding in Pereira. Before the Supreme Court
decided Pereira, several circuit courts and the Board had addressed the
question whether the notice requirements of section 239(a)(1) of the Act are
satisfied by service of a notice to appear stating that the time and place of a
hearing are to be set, followed by service of a separate notice of hearing that
specifies that information. 6
In Dababneh v. Gonzales, 471 F.3d 806, 808–09 (7th Cir. 2006), the
Seventh Circuit rejected the alien’s argument that the Immigration Judge did
not have jurisdiction to initiate his removal proceedings because the notice
to appear did not specify the date and time of his initial hearing. The court
concluded that “[t]he fact that the government fulfilled its obligations under
[section] 239(a) in two documents—rather than one—did not deprive the
[Immigration Judge] of jurisdiction to initiate removal proceedings.” Id. at
809. Regarding whether the “defective” notice to appear cut off the alien’s
accrual of physical presence, the Seventh Circuit held that once the DHS
served the notice to appear and the notice of hearing, the alien received notice
“that met the [section] 239 requirements through receipt of both” documents,
and the “stop-time” rule cut off his accrual of physical presence. Id. at 810.
In Matter of Bermudez-Cota, 27 I&N Dec. at 446–47, we cited with approval
this two-part process, pursuant to which jurisdiction vested and the
“stop-time” rule was triggered once the alien received both the notice to
appear and the notice of hearing.
In Matter of Camarillo, 25 I&N Dec. at 645, we addressed the
Immigration Judge’s ruling that the alien was eligible for cancellation of
removal under section 240A(a)(2) of the Act because her continuous
establishes by clear, unequivocal, and convincing evidence that the written notice
was so provided and that the alien is removable . . . .
6

We note that some decisions discussing the issue of proper notice refer to the “date and
time” of the hearing. However, section 239(a)(1)(G) of the Act requires inclusion of the
“time and place” of the hearing in the notice to appear. We will therefore otherwise refer
to the required “time and place” in this decision.

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residence did not end with the service of a notice to appear that lacked the
date and time of her initial removal hearing. 7 According to the Immigration
Judge, the alien’s residence only terminated when the Immigration Court
issued a notice of hearing that included the required information. The DHS
appealed, arguing that the alien’s residence ended when the notice to appear
was served, even though it did not include the date and time of the hearing.
We concluded that the relevant statutory language of the “stop-time” rule
at section 240A(d)(1)(A) of the Act is ambiguous and found the competing
readings of the statute to be “equally plausible.” Id. at 647, 651. However,
we ultimately agreed with the DHS’s position that its “service of a notice to
appear triggers the ‘stop-time’ rule, regardless of whether the date and time
of the hearing have been included in the document.” Id. at 651. In this
regard, we stated that “[n]o authority . . . supports the contention that a notice
of hearing issued by the Immigration Court is a constituent part of a notice
to appear, the charging document issued only by the DHS.” Id. at 648. We
further noted that “another reason an Immigration Court’s notification of a
hearing date does not ‘serve’ a notice to appear is that neither the
Immigration Court nor the Immigration Judge has been delegated the
authority to serve a notice to appear.” Id. at 650 (citations omitted). 8
Shortly after we issued our decision in Matter of Camarillo, the Second
Circuit decided Guamanrrigra v. Holder, 670 F.3d 404 (2d Cir. 2012) (per
curiam). In that case, the alien was served with a notice to appear before an
Immigration Judge in Boston at a date and time to be set, followed later by a
notice of hearing indicating the date and time of his initial removal hearing,
which the alien and his counsel received by mail. The alien was ordered
removed in absentia. His proceedings were later reopened based on lack of
notice, but the Immigration Judge and Board denied the alien’s application
for cancellation of removal, reasoning that the “stop-time” rule was triggered
by the service of the notice to appear.
Adopting the rationale articulated by the Seventh Circuit in Dababneh
but without mentioning Matter of Camarillo, the Second Circuit held that
“the stop-time rule is triggered upon service of a Notice to Appear that (alone
or in combination with a subsequent notice) provides the notice required by
[section] 239(a)(1)” of the Act. Id. at 409–10 (emphasis added). Because
7

The “stop-time” rule at section 240A(d)(1)(A) of the Act is also applicable to determine
eligibility for relief under section 240A(a)(2), which requires 7 years of continuous
residence in the United States after having been admitted in any status.
8
We now consider that analysis to be flawed. A notice of hearing is not part of the notice
to appear, which is not “served” by the Immigration Courts. Instead, the notice of hearing
is a separate notice, served in conjunction with the notice to appear, that satisfies the
requirements of section 239(a)(1)(G) of the Act by providing the essential information
regarding the time and place of the hearing.

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service of the notice of hearing “perfected the notice required by section
239(a)(1),” the alien did not accrue the requisite 10 years of continuous
physical presence and was ineligible for cancellation of removal. Id. at
410–11.
A number of circuit courts subsequently agreed with our decision in
Matter of Camarillo and concluded that it was entitled to deference under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). Moscoso-Castellanos v. Lynch, 803 F.3d 1079, 1083 (9th Cir.
2015); O’Garro v. U.S. Att’y Gen., 605 F. App’x 951, 953 (11th Cir. 2015)
(per curiam); Guaman-Yuqui v. Lynch, 786 F.3d 235, 239–40 (2d Cir. 2015)
(per curiam); Gonzalez-Garcia v. Holder, 770 F.3d 431, 434–35 (6th Cir.
2014); Yi Di Wang v. Holder, 759 F.3d 670, 674–75 (7th Cir. 2014); Urbina
v. Holder, 745 F.3d 736, 740 (4th Cir. 2014). The Third Circuit, however,
found no ambiguity in the “stop-time” rule and declined to defer to our
decision. Orozco-Velasquez v. Att’y Gen. U.S., 817 F.3d 78, 81–82 (3d Cir.
2016).
The alien in Orozco-Velasquez was served with a notice to appear
ordering him to appear before an Immigration Judge in Elizabeth, New
Jersey, at a date and time “to be set.” Orozco-Velasquez, 817 F.3d at 79.
Nearly 2 years later, in April 2010, the DHS mailed him “an otherwise
identical” notice to appear correcting the address of the Immigration Court
and, within a week, he received a notice of hearing containing the date and
time of the removal proceedings. The Third Circuit held that “an initial
[notice to appear] that fails to satisfy [section 239(a)(1)’s] various
requirements will not stop the continuous residency clock until the
combination of notices, properly served on the alien charged as removable,
conveys the complete set of information prescribed by [section 239(a)(1)].”
Id. at 83. Applying that reasoning, the court further determined that the
Government only complied with section 239(a)(1) in April 2010, when the
alien received both a notice to appear correcting the address of the
Immigration Court and a notice of hearing establishing the date and time of
removal proceedings. Id. at 84.
The First Circuit then addressed this issue in Pereira v. Sessions, 866 F.3d
1 (1st Cir. 2017), rev’d, 138 S. Ct. 2105. The alien there was admitted to the
United States as a nonimmigrant visitor in 2000. In May 2006, he was served
with a notice to appear that did not specify the date and time of his initial
removal hearing. More than a year later, in August 2007, the DHS filed the
notice to appear with the Immigration Court, which then mailed the alien a
notice of hearing setting the date and time for his initial removal hearing.
However, it was sent to the wrong address and was returned as undeliverable.
The alien did not appear at his hearing and was ordered removed in absentia.
In 2013, after he demonstrated that he did not receive the 2007 notice of
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hearing, his removal proceedings were reopened and he applied for
cancellation of removal.
In regard to the “stop-time” rule, the alien claimed that he had continued
to accrue time until he received a notice of the hearing after his case was
reopened in 2013. He agreed that the notice required by section 239(a)(1) of
the Act “need not be provided in the same document,” and that “two or more
documents that together contain” all the information, such as the notice to
appear served on him in 2006 and the hearing notice he received in 2013,
could, “in combination,” trigger the “stop-time” rule. Id. at 4. However, the
Immigration Judge determined that the 2006 notice to appear alone triggered
the “stop-time” rule, so the alien could not satisfy the 10-year continuous
physical presence requirement. We agreed and dismissed the alien’s appeal.
The First Circuit concluded that the language in section 240A(d)(1)(A)
of the Act is ambiguous, and it gave deference under Chevron to our
interpretation in Matter of Camarillo that the DHS’s service of a notice to
appear triggers the “stop-time” rule, regardless of whether the date and time
of the hearing have been included in the notice. Id. at 2, 7–8. It denied the
alien’s petition for review, and the Supreme Court granted certiorari.
C. Pereira v. Sessions
The Supreme Court’s analysis in Pereira focused on the plain language
of the statute, specifically, “the intersection” of the “stop-time” rule in
section 240A(d)(1)(A) of the Act, which terminates continuous residence or
physical presence “when the alien is served a notice to appear under section
239(a),” and the notice requirements in section 239(a)(1) of the Act, which
provides that a notice to appear must specify certain information, including
the “time and place at which the proceedings will be held.” Pereira, 138
S. Ct. at 2110. Based on the “plain text, the statutory context, and common
sense,” the Court held that a notice to appear that does not specify the time
and place of the proceedings does not trigger the “stop-time” rule. Id.
Because the Court found the language of the “stop-time” rule to be
unambiguous, it did not need to consider Chevron deference. Id. at 2113,
2117. Furthermore, the Court did not address the propriety of the two-part
notice process applied by several circuit courts because the alien had accrued
the required 10 years of physical presence before he received notice of his
hearing in the reopened removal proceedings. See Pereira, 138 S. Ct. at 2112
(noting that the proceedings were reopened in 2013).
To summarize the development of the case law on the question before us,
the circuit courts initially ruled that if a notice to appear lacks information
regarding the time and place of the hearing, the notice requirements of
section 239(a)(1) of the Act are only satisfied, and the “stop-time” rule is
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triggered, once the defective notice is perfected by the alien’s receipt of a
subsequent notice of hearing specifying the hearing’s time and place. See,
e.g., Guamanrrigra, 670 F.3d at 409–10; Dababneh, 471 F.3d at 808–10.
However, we rejected the application of such a two-step process in Matter of
Camarillo, holding that the “stop-time” rule is triggered by service of a notice
to appear alone, regardless of whether that notice contains time and place
information. Several circuits then retreated from the initial trend of
recognizing the two-step process and, instead, deferred to our holding in
Matter of Camarillo.
This was followed by the Third Circuit’s issuance of Orozco-Velasquez,
which disapproved of Matter of Camarillo but did not disagree with the
circuit courts that had previously recognized a two-step process. In fact,
Orozco-Velasquez explicitly stated that the “stop-time” rule is triggered upon
the service of the “combination” of the notice to appear and a subsequent
notice of hearing that supplies the missing time and place information.
Orozco-Velasquez, 817 F.3d at 83–84.
According to the Supreme Court’s majority opinion in Pereira, certiorari
was granted to resolve the division regarding the “stop-time” rule between
the Third Circuit, which had rejected Matter of Camarillo as contrary to the
plain language of the statute, and other circuits that had deferred to it.
Pereira, 138 S. Ct. at 2113. While the Court majority abrogated Matter of
Camarillo and the circuit court cases deferring to our decision, it did not
disturb the Third Circuit’s decision. Thus, although the Court was clearly
aware of the circuit split, which it resolved in favor of the Third Circuit, it
did not reject the portion of the holding in Orozco-Velasquez that recognized
a two-step process under which a notice of hearing could perfect a notice to
appear that had omitted the requisite time and place information.
Furthermore, since the alien in Pereira received only a deficient notice to
appear, with no subsequent notice of hearing containing the time and place
of his initial removal hearing until after he accrued 10 years of physical
presence, the Supreme Court had no need to address either how the
“stop-time” rule operates once such information has been properly conveyed
or at what point the alien’s period of continuous physical presence stops
accruing. Consequently, we do not read the majority decision in Pereira as
invalidating the two-step notice process, under which a subsequently issued
notice of hearing “cures” or “perfects” a deficient notice to appear.
Thus, no court has adopted the view of our dissenting colleagues in this
case that the deficiency in a notice to appear that is missing the time and
place of the initial removal proceeding cannot be remedied by a notice of
hearing that includes that information. The result of the dissent’s approach
is that there can be no way to perfect a notice to appear that is insufficient
under section 239(a) in order to invoke the “stop-time” rule, which we do not
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find to be persuasive, given the Supreme Court’s decision and the circuit
court cases issued both before and after it that support a two-step notice
process.
D. Two-Step Process
We conclude that in cases 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 perfects the deficient notice
to appear, triggers the “stop-time” rule, and ends the alien’s period of
continuous residence or physical presence in the United States. Therefore,
although the notices to appear served on the respondents on October 11,
2010, did not trigger the “stop-time” rule under Pereira, 138 S. Ct. at 2110,
we hold that their continuous physical presence ended on December 8, 2010,
when the Immigration Court sent them notices of hearing that specified the
time and place of their initial removal hearing.
This rule is consistent with the Supreme Court’s narrow mandate and
“common sense” observation that “the Government has to provide
noncitizens ‘notice’ of the information, i.e., the ‘time’ and ‘place,’ that would
enable them ‘to appear’ at the removal hearing in the first place.” Id. at 2115.
It is also consistent with the plain language of the statute, Matter of
Bermudez-Cota, and the circuit court law that, prior to Pereira, held that the
“stop-time” rule is triggered by a two-part process where an alien is served
with a notice to appear in combination with a subsequent notice of hearing
that provides the information required by section 239(a)(1) of the Act. 9 See
Orozco-Velasquez, 817 F.3d at 83; Guamanrriga, 670 F.3d at 410;
Dababneh, 471 F.3d at 810.
As the respondents have argued, Pereira can be interpreted more broadly
and read in a literal sense to reach a different result, because the opinion
includes language stating that a notice lacking the specific time and place of
the removal proceedings does not equate to a notice to appear under section
9

Our interpretation is also consistent with the congressional intent behind the “stop-time”
rule. As we have stated, “By enacting the rule, Congress intended to prevent aliens from
being able ‘to “buy time,” during which they could acquire a period of continuous presence
that would qualify them for forms of relief that were unavailable to them when proceedings
were initiated.’” Matter of Camarillo, 25 I&N Dec. at 649 (quoting Matter of Cisneros,
23 I&N Dec. 668, 670 (BIA 2004) (quoting Report of the Committee on the Judiciary,
House of Representatives, H.R. Rep. 104-469 (1996))). If a notice of hearing cannot cure
or perfect a deficient notice to appear, then the DHS would be required to re-serve a
“corrected” notice to appear in proceedings once a cancellation of removal application is
filed in order to trigger the “stop-time” rule. In many cases this could be after the alien has
appeared at multiple hearings over a number of years. Such an outcome would defeat the
reason for enacting the “stop-time” rule in the first place.

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239(a)(1) of the Act. Pereira, 138 S. Ct. at 2110, 2113–14. But we did not
elect that path in Matter of Bermudez-Cota and we do not do so here,
particularly given the legal landscape underlying the circuit split addressed
in Pereira. Rather, we understand Pereira as directing us to respond to the
substantive concerns of fundamental fairness inherent in procedural due
process and to applicants’ settled expectations about eligibility for relief,
which the Supreme Court explained were not met in Pereira.
We disagree with the dissent to the extent it argues that we are ignoring
the Supreme Court’s broader holding that “based on the plain text of the
statute, it is clear that to trigger the stop-time rule, the Government must
serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and
place’ of the removal proceedings.” Id. at 2114. To the contrary, we are
applying that holding by concluding that the notices to appear initially served
on the respondents did not trigger the “stop-time” rule because they lacked
the requisite information about the time and place of the hearing. However,
the Court’s holding does not preclude a “perfected” notice to appear from
stopping time, because that issue was not before the Court in Pereira.
Importantly, the Supreme Court repeatedly emphasized in Pereira that
the question before it was “narrow.” Id. at 2110, 2113; see also Banegas
Gomez, 2019 WL 1768914, at *7 (noting “the care taken by the Pereira Court
to emphasize the narrow scope of its holding”); Karingithi, 913 F.3d at 1161
(observing that the Court “emphasiz[ed] multiple times the narrowness of its
ruling”); Hernandez-Perez, 911 F.3d at 314 (discussing “Pereira’s
emphatically ‘narrow’ framing” (quoting Pereira, 138 S. Ct. at 2110, 2113));
see also Matter of Bermudez-Cota, 27 I&N Dec. at 443 (noting that the Court
“specifically stated multiple times that the issue before it was ‘narrow’”
(quoting Pereira, 138 S. Ct. at 2110, 2113)). In this regard, the Court
observed that the question presented by the alien—whether service of a
“notice to appear” that fails to specify all of “the items listed” in section
239(a)(1) triggers the “stop-time” rule—“sweeps more broadly than
necessary to resolve” the case. 10 Id. at 2113. The Court further stated that
the “dispositive question” is “much narrower,” namely, “Does a ‘notice to
appear’ that does not specify the ‘time and place at which the proceedings
will be held’ . . . trigger the stop-time rule?” Id. (quoting section
239(a)(1)(G)(i) of the Act). In a footnote, the Court stated that it left “for
another day whether a putative notice to appear that omits any of the other
categories of information enumerated in [section 239(a)(1)] triggers the
stop-time rule.” Id. at 2113 n.5.
10

Section 239(a)(1) of the Act requires that the “written notice” given to an alien must
specify several things, only one of which is “[t]he time and place at which the proceedings
will be held” in section 239(a)(1)(G)(i). Pereira, 138 S. Ct. at 2109–10.

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As we observed in Matter of Bermudez-Cota, 27 I&N Dec. at 443,
“Pereira involved a distinct set of facts.” Because the alien in Pereira “never
received notice of the time and date of his [initial] removal hearing, he failed
to appear” and was ordered removed in absentia. Pereira, 138 S. Ct. at 2112.
The respondents, like the alien in Matter of Bermudez-Cota, were properly
served with notices to appear, followed by notices of hearing setting forth the
time and place of their initial removal hearings. Matter of Bermudez-Cota,
27 I&N Dec. at 441, 443. The notices of hearing were served on the
respondents in December 2010, approximately 2 months after they were
served with their notices to appear. The respondents appeared at their initial
removal hearing on January 6, 2011, and at every subsequent hearing. In
addition, since they have been represented in these proceedings since March
2011, they had the opportunity to secure counsel and to adequately prepare.
We are also mindful of Pereira’s invocation of “common sense” in
concluding that a notice that does not specify when and where to appear for
removal proceedings is not a “notice to appear” that triggers the “stop-time”
rule. Id. at 2110, 2115. The Supreme Court explained that
common sense compels the conclusion that a notice that does not specify when and
where to appear for a removal proceeding is not a “notice to appear” that triggers the
“stop-time” rule. If the three words “notice to appear” mean anything in this context,
they must mean that, at a minimum, the Government has to provide noncitizens
“notice” of the information, i.e., the “time” and “place,” that would enable them “to
appear” at the removal hearing in the first place. Conveying such time and place
information to a noncitizen is an essential function of a notice to appear, for without
it, the Government cannot reasonably expect the noncitizen to appear for his removal
proceedings.

Id. at 2115. In short, the Court explained that the fundamental purpose of
notice is to convey essential information to the alien, such that the notice
creates a reasonable expectation of the alien’s appearance at the removal
proceeding, which is consistent with the statutory text and the judicial
precedent that departed from Matter of Camarillo.
This purpose can be satisfied by a combination of documents that jointly
provide the notice required by statute. Although the provision in section
239(a)(1) of the Act stating that “a ‘notice to appear’” must be given to the
alien is in the singular, we do not read the statute as requiring that the “written
notice” be in a single document. 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 proceedings.

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Pereira teaches that the “essential function of a notice to appear” is
paramount, not the form of the notice. Id. at 2115 (noting that “a barebones
document labelled ‘Notice to Appear,’ with no mention of the time and place
of the removal proceedings . . . would do little if anything to facilitate
appearance at those proceedings”). A notice to appear that does not contain
the requisite information cannot form the basis of a reasonable expectation
of the alien’s appearance at the removal hearing.
Moreover, under the regulations, “the [DHS] shall provide in the Notice
to Appear, the time, place and date of the initial removal hearing, where
practicable.” 8 C.F.R. § 1003.18(b) (2018). But if time, place, and date
information “is not contained in the Notice to Appear, 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.” Id. Here, too, the focus is on the contents of the notice and
facilitating the alien’s appearance, not the title affixed to the document. See
Orozco-Velasquez, 817 F.3d at 84 (stating that the purpose of a notice to
appear “is to provide an alien with notice—of the charges against him and
the basic contours of the proceedings to come”).
The dissent relies heavily on Pereira’s discussion of section 239(a)(2) of
the Act, which is entitled, “Notice of Change in Time or Place of
Proceedings.” In Pereira, the Government and the dissent observed that the
“stop-time” rule makes “broad reference” to a notice to appear “under section
239(a),” which includes paragraphs (2) and (3), as well as paragraph (1). But
the majority of the Court found that “only paragraph (1) bears on the meaning
of a ‘notice to appear.’” 11 Pereira, 138 S. Ct. at 2114. The Court further
11

Section 239(a)(2) of the Act governs the notice of change in time and place of
proceedings, and paragraph (3) provides for a system to record aliens’ addresses and phone
numbers. The dissent asserts that “[t]he Government argued in Pereira that, because the
‘stop-time’ rule refers to section 239(a) as a whole, the ‘stop-time’ rule was not limited to
service of a section 239(a)(1) notice to appear but could be triggered by the service of other
documents referenced in section 239(a)(2) that provide the time and place of hearing.”
Matter of Mendoza-Hernandez & Capula-Cortes, 27 I&N Dec. 520, 538 (BIA 2019)
(Guendelsberger, dissenting). More accurately, the Supreme Court noted the point made
by the Government and the dissent that the “stop-time” rule makes broad reference to a
notice to appear under section 239(a) of the Act, which includes paragraphs (1) through
(3). Pereira, 138 S. Ct. at 2114.
Justice Alito’s dissent asserts that the “stop-time” rule’s cross-reference to section
239(a)—without limiting it to paragraph (1)—indicates that “Congress chose to insert a
broader cross-reference, one that refers to the general process of serving notices to appear
as a whole.” Id. at 2123 (Alito, J., dissenting). There is no reference in Pereira to an
argument by the Government or the dissent that the “stop-time” rule could be triggered by
the service of other documents, such as a subsequent notice of hearing. The facts of Pereira
would not support such an argument being made because the only document that could

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found that section 239(a)(2) “bolsters” its interpretation of the “stop-time”
statute because “[b]y 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 [239(a)]’
that specified a time and place as required by [section 239(a)(1)(G)(i)].” Id.
That section 239(a)(2) of the Act “presumes” that the time and place of the
proceedings was already specified in a notice to appear does not preclude the
possibility of a two-step process that allows a notice of hearing containing
time and place information to perfect, or cure, a deficient notice to appear.
The Pereira Court was not presented with that question.
On this point, we again find Orozco-Velasquez instructive. The dissent
reads the Third Circuit as having “relied on section 239(a)(2) to permit an
Immigration Court’s notice of hearing to trigger the ‘stop-time’ rule” and
finds that “its rationale directly conflicts with Pereira’s reading of that
statutory provision.” Matter of Mendoza-Hernandez & Capula-Cortes,
27 I&N Dec. 520, 542 (BIA 2019) (Guendelsberger, dissenting). Yet the
court explicitly rejected any argument of ambiguity in the “stop-time” rule,
concluding that the statute’s incorporation of additional provisions, including
section 239(a)(2), “does nothing to diminish the clear-cut command” in
section 239(a)(1) that notice must specify the time and place at which the
proceedings will be held. Orozco-Velasquez, 817 F.3d at 82–83.
After concluding that the plain language of the statute states that time
stops only when the Government serves a notice to appear in conformance
with section 239(a) of the Act, the Third Circuit continued:
Moreover, in requiring that an “alien [be] served a notice to appear under section
[239(a)]” to suspend the alien’s accrual of continuous residency, [section
240A(d)(1)] simultaneously compels government compliance with each of [section
239(a)(1)’s notice to appear] requirements and accommodates a “change or
postponement in the time and place of [removal] proceedings” when the government
provides written notice of such changes to the alien. Congress’s incorporation of
[section 239(a)] in its entirety conveys a clear intent: that the government may freely
amend and generally supplement its initial [notice to appear]; but to cut off an alien’s
have stopped time before the alien accrued 10 years of continuous physical presence was
the notice to appear, given that the initial hearing notice was sent to an incorrect address.
And the dissent in Pereira concluded that Chevron deference should be given to our
interpretation of the “stop-time” rule in Matter of Camarillo, where we held that a notice
to appear alone triggers the “stop-time” rule, even if it does not include the time and place
of the initial hearing. Id. at 2122, 2129. Therefore, we disagree with the dissent in this
case to the extent it is suggesting that the Supreme Court has already addressed and
resolved the question whether the “stop-time” rule can be triggered by the subsequent
service of other documents, such as a notice of hearing, that provide the time and place of
hearing.

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eligibility for cancellation of removal, it must do so within the ten years of
continuous residence identified in [section 240A(b)(1)(A)] (one of three
cancellation-of-removal provisions the “stop-time” rule exists to explicate). Thus,
an initial [notice to appear] that fails to satisfy [section 239(a)(1)’s] various
requirements will not stop the continuous residency clock until the combination of
notices, properly served on the alien charged as removable, conveys the complete set
of information prescribed by [section 239(a)(1)] within the alien’s first ten years of
continuous residence.

Id. (first and fifth alterations in original). This analysis supports our
conclusion that although a notice to appear that omits time and place
information does not stop time, a notice to appear perfected by a notice of
hearing that does include such information can stop time in accordance with
section 240A(d)(1)(A)’s reference to “section 239(a)” of the Act.
Lastly, the dissent concludes that neither the service of the notices to
appear nor the subsequent notices of hearing in this case triggered the
“stop-time” rule. But it does not provide a clear answer as to how the
“stop-time” rules operates in this situation under its interpretation of Pereira,
absent a break in physical presence or the commission of a disqualifying
crime. It simply posits alternative ending points, including service of a new
notice to appear specifying the time and place of the hearing or the entry of
a final order of removal. See sections 240A(d)(1)–(2) of the Act.

IV. CONCLUSION
Until Matter of Camarillo, there was an “emerging consensus” among the
courts of appeals that “the notice necessary to trigger the stop-time rule found
in [section 240A(d)(1)] was not ‘perfected’ until the immigrant received all
the information listed in [section 239(a)(1)].” Pereira, 138 S. Ct. at 2120
(Kennedy, J., concurring) (quoting Guamanrriga, 670 F.3d at 410);
Dababneh, 471 F.3d at 810. In Matter of Camarillo, we rejected that
interpretation. After Matter of Camarillo, the Third Circuit in turn rejected
our conclusion that section 240A(d)(1)(A) of the Act is ambiguous and
specified that under the statute’s plain language, the “stop-time” rule
unambiguously requires service of a notice to appear that meets the
requirements of section 239(a)(1). Orozco-Velasquez, 817 F.3d at 83–84.
The majority opinion in Pereira recognized the split in the circuits and
cited this aspect of Orozco-Velasquez’s holding without discussing or
expressing disapproval of the Third Circuit’s further holding that “the
combination of notices” conveying all the information prescribed by section
239(a)(1) of the Act triggers the “stop-time” rule. Orozco-Velasquez,
817 F.3d at 83; see also Pereira, 138 S. Ct. at 2113 n.4. None of the courts
involved in the circuit split had held that service of a subsequent notice of
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hearing that included time and place information was insufficient to perfect
the notice to appear. And the majority in Pereira did not indicate it was
adopting that approach.
In his concurring opinion, Justice Kennedy criticized the circuits that
granted Chevron deference to Matter of Camarillo after previously ruling
that notice was not “perfected” until all the requirements of section 239(a)(1)
of the Act were met. Pereira, 138 S. Ct. at 2120 (Kennedy, J., concurring).
Neither the majority nor the concurrence, however, expressed disagreement
with the aspects of those previous rulings that had held that the service of a
notice of hearing containing time and place information indeed perfects a
notice to appear that had omitted that information, such that the “stop-time”
rule is invoked.
Accordingly, in light of the jurisprudence that preceded Pereira, which
explained that the notice necessary to trigger the “stop-time” rule is
“perfected” when an alien is served with a notice of hearing containing the
time and place information required by section 239(a)(1) of the Act, and the
Supreme Court’s resolution of the circuit court split in favor of a plain
language rejection of Matter of Camarillo, which we read as consistent with
the analysis and holding in Orozco-Velasquez, we now adopt the “equally
plausible” view advocated by the respondents in Matter of Camarillo,
25 I&N Dec. at 647.
We therefore hold that where a notice to appear does not specify the time
and place of an alien’s initial removal hearing, the subsequent service of a
notice of hearing containing that information “perfects” the deficient notice
to appear, satisfies the notice requirements of section 239(a)(1) of the Act,
and triggers the “stop-time” rule of section 240A(d)(1)(A) of the Act.
Pereira did not reach this issue because the alien was not properly served
with a notice of hearing providing the time and place information and so did
not appear at his initial removal hearing. Because the respondents in this
case appeared at their initial removal hearing after they received notices of
hearing with proper notice of the time and place of their proceedings, we will
deny their motion to remand based on Pereira.
We further conclude that the respondents’ period of continuous physical
presence ended on December 8, 2010, when they were served with notices
of hearing scheduling their initial removal hearing on January 6, 2011.
Accordingly, it is the respondents’ burden to demonstrate 10 years of
continuous physical presence in the United States measured backward from
service of the notices of hearing. See section 240A(b)(1)(A) of the Act.
The record will be remanded for the Immigration Judge to consider
whether the aliens have met this burden, upon consideration of the entire
record, including testimony and corroborative evidence. The parties may
supplement the record with additional evidence relevant to continuous
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physical presence on remand, including the new evidence proffered with the
respondents’ motion to remand.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new
decision.

DISSENTING OPINION: John W. Guendelsberger, Board Member, in
which Charles K. Adkins-Blanch, Vice Chairman; Patricia A. Cole,
Edward R. Grant, Michael J. Creppy, and Molly Kendall Clark, Board
Members, joined
We respectfully dissent from the majority’s determination that an
Immigration Court’s service of a notice of the initial hearing date in removal
proceedings triggers the “stop-time” rule to end the period of continuous
physical presence required for cancellation of removal. 1 The United States
Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018),
governs this case and compels us to find that the service of a “notice of
hearing” by an Immigration Court does not meet the definition of a “notice
to appear” under section 239(a)(1) of the Immigration and Nationality Act,
8 U.S.C. § 1229(a) (2012), and therefore does not trigger the “stop-time” rule
when a “notice to appear” from the Department of Homeland Security
(“DHS”) fails to specify the time of the initial proceedings.

I. STOP-TIME RULE
To qualify for cancellation of removal under section 240A(b)(1) of the
Act, 8 U.S.C. § 1229b(b)(1) (2012), an applicant must demonstrate 10 years
of continuous physical presence in the United States. Under the “stop-time”
rule in section 240A(d)(1)(A) of the Act, “any period of . . . continuous
physical presence” is “deemed to end when the alien is served a notice to
appear under section 239(a).” The Supreme Court in Pereira directly
addressed the statutory text of the “stop-time” rule and the definition of
“notice to appear” in section 239(a)(1) of the Act. 2 The Court found that the
1

We agree with the majority decision insofar as it denies the respondent’s request for
termination of proceedings.
2
The provisions for cancellation of removal, including the “stop-time” rule, as well as
the “notice to appear” provisions of section 239(a) of the Act were enacted by section 304
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C
of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-587 to 3009-597. Cancellation of
removal replaced the “suspension of deportation” provisions in former section 244(a) of
the Act, 8 U.S.C. § 1254 (1994). Applicants for suspension of deportation could continue
to accrue time to meet the physical presence requirement during the course of deportation

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“plain text, the statutory context, and common sense all lead inescapably and
unambiguously” to the conclusion that the time and place of hearing must be
designated in a section 239(a)(1) notice to appear to trigger the “stop-time”
rule. Id. at 2110.
In so finding, the Court overruled the Board’s decision in Matter of
Camarillo, 25 I&N Dec. 644, 648 (BIA 2011), that service of a notice to
appear cut off accrual of the time required for cancellation of removal, even
if it did not specify the time and place of hearing. The Board reasoned in
Camarillo that the “stop-time” rule “merely specifies the document the DHS
must serve on the alien to trigger the ‘stop-time’ rule and does not impose
substantive requirements for a notice to appear to be effective in order for
that trigger to occur.” Id. at 647. As to the significance of a notice of hearing
later issued by an Immigration Court, the Board stated that “[n]o authority . . .
supports the contention that a notice of hearing is a constituent part of a notice
to appear, the charging document issued only by the DHS.” Id. at 648.
The Court in Pereira framed the issue before it as whether “a ‘notice to
appear’ that does not specify the ‘time and place at which the proceedings
will be held,’ as required by [section 239(a)(1)(G)(i)], trigger[s] the
‘stop-time’ rule.” Pereira, 138 S. Ct. at 2113. The Court found that
Congress had provided a “clear and unambiguous” answer to this question,
namely, 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 [239(a)],’ and so does not trigger the ‘stop-time’ rule.”
Id. at 2113–14.
In Pereira, the DHS failed to specify a time of hearing in the notice to
appear, and the notice of the initial hearing date was sent by the Immigration
Court after the respondent had accumulated the requisite 10 years of physical
presence. In the case now before us, the DHS served a notice to appear that
failed to specify a time of hearing, and the Immigration Court later served
notice of the initial hearing date before the respondent had accrued 10 years
of continuous physical presence. 3
The legal issue in this case is whether the issuance of a notice of hearing
by an Immigration Court triggers the “stop time” rule when the notice to
appear issued by the DHS did not specify the time of hearing. The Court in
Pereira answers this question, stating that “based on the plain text of the
statute, it is clear that to trigger the stop-time rule, the Government must
proceedings until the entry of a final order of deportation. See, e.g., Matter of Castro,
19 I&N Dec. 692, 693–94 (BIA 1988); Matter of Chang, 10 I&N Dec. 14, 16 (BIA 1962).
3
The notice to appear issued by the DHS to the alien in Pereira did not set a date and
time for the initial hearing in removal proceedings. An incorrectly addressed notice of
hearing was later mailed by the Immigration Court to the alien. When he failed to appear
at his hearing, he was ordered removed in absentia.

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serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and
place’ of the removal proceedings.” Pereira, 138 S. Ct. at 2114. Under this
holding, and the Court’s underlying reasoning, a “notice of hearing” sent by
an Immigration Court is not a “notice to appear” under section 239(a)(1) of
the Act, as required by the “stop-time” rule.
A. Plain Language
The reasoning of the Court in Pereira indicates that the event that triggers
the “stop-time” rule is the service of a “notice to appear” that provides the
essential information required by section 239(a)(1), including the time and
place at which the hearing will be held. The Government argued in Pereira
that, because the “stop-time” rule refers to section 239(a) as a whole, the
“stop-time” rule was not limited to service of a section 239(a)(1) notice to
appear but could be triggered by the service of other documents referenced
in section 239(a)(2) that provide the time and place of hearing. Pereira, 138
S. Ct. at 2114. The Court rejected this argument, stating that “the broad
reference to [section 239(a)] is of no consequence, because, as even the
Government concedes, only paragraph (1) bears on the meaning of a ‘notice
to appear.’” Id. The Court reasoned that “[n]owhere else within [section
239(a)] does the statute purport to delineate the requirements of a ‘notice to
appear.’ In fact, the term ‘notice to appear’ appears only in paragraph (1) of
[section 239(a)].” Id.
The Court found that the plain language of section 239(a)(2) “bolsters”
its interpretation of the statute that the notice of the date and time of the
hearing must be included in a section 239(a)(1) notice to appear in order to
trigger the “stop-time” rule. Id. As the Court explained:
Paragraph (2) [of section 239(a)] provides that, “in the case of any change or
postponement in the time and place of [removal] proceedings,” the Government shall
give the noncitizen “written notice . . . specifying . . . the new time or place of the
proceedings.” [Section 239(a)(2)(A)(i) of the Act.] 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 239(a)]”
that specified a time and place as required by [section 239(a)(1)(G)(i)]. Otherwise,
there would be no time or place to “change or postpon[e].” [Section 239(a)(2) of the
Act.]

Id. (second alteration in original).
Under the Court’s reasoning in Pereira, Congress provided clear and
unambiguous language identifying the event that triggers the “stop-time”
rule—that is, service by the DHS of a “notice to appear” under section
239(a)(1) that specifies the time and place of the hearing as required by
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section 239(a)(1)(G), along with other essential information required by
sections 239(a)(1)(A) through (G). A subsequent “notice of hearing”
generated by the Immigration Court is not a section 239(a)(1) “notice to
appear” and, therefore, does not trigger the “stop-time” rule.
A subsequent “notice of hearing” also cannot complete or cure a deficient
“notice to appear.” First, neither notice would meet, on its own, the
definition of “a notice to appear” under section 239(a)(1). Second, the statute
contains no ambiguity or gap that would permit a “combination” approach to
trigger the stop time rule under the plain text roadmap provided by the
Supreme Court in Pereira. The statute refers to a single document, “a notice
to appear” issued by the DHS. Pereira makes clear that a section 239(a)(1)
“notice to appear” must include the date and time of hearing in order to
trigger the “stop-time” rule.
Prior to enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546 (“IIRIRA”), the initiation of deportation proceedings involved a
two-step process beginning with a charging document known as an “order to
show cause” that was served by the former Immigration and Naturalization
Service that was then followed up by a notice of hearing date issued by the
Immigration Court. See former sections 242B(a)(1)(A)–(F) of the Act,
8 U.S.C. § 1252b(a)(1)(A)–(F) (Supp. V 1993) (describing the essential
elements of an order to show cause without reference to inclusion of the date
and time of hearing). In the IIRIRA, Congress added section 239(a) to the
Act in an effort to simplify the process for initiating removal proceedings.
H.R. Rep. 104-469(I), 1996 WL 168955, at 159 (1996). In so doing,
Congress moved from the two-step process for initiating deportation
proceedings to a one-step “notice to appear” that specifies the time and place
of hearing as an essential element of a section 239(a)(1) notice to appear.
The Supreme Court in Pereira found no ambiguity in the statute and
concluded its opinion by stating that, “[a]t the end of the day, given the clarity
of the plain language, we ‘apply the statute as it is written.’” Id. at 2119–20
(citation omitted). We must do the same.
B. A Notice of Hearing Cannot Cure a Defective Notice to Appear
The Court in Pereira directly addressed whether the language of section
239(a)(1) “can be understood to define what makes a notice to appear
complete.” Pereira, 138 S. Ct. at 2116 (quoting id. at 2126, Alito, J.,
dissenting). The Court responded that
[s]ection [239(a)(1)] does not say a “notice to appear” is “complete” when it specifies
the time and place of the removal proceedings. Rather, it defines a “notice to appear”

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as a “written notice” that “specif[ies],” at a minimum, the time and place of the
removal proceedings.

Id. (quoting section 239(a)(1)(G) of the Act) (third alteration in original).
The Court emphasized that “the omission of time-and-place information is
not, as the dissent asserts, some trivial, ministerial defect, akin to an unsigned
notice of appeal.” Id. Rather, such an omission would “deprive [the notice
to appear] of its essential character.” Id. at 2116–17 (alteration in original)
(quoting id. at 2127 n.5 (Alito, J., dissenting)). The Court’s analysis
establishes that the plain text of the “stop-time” rule requires the DHS to
include the notice of time and place of hearing in the section 239(a)(1) notice
to appear in order to trigger the “stop-time” rule.
Other aspects of the Court’s analysis indicate that its holding applies to
all cases involving the “stop-time” rule in which the DHS does not include
the time or place of hearing in its notice to appear. For example, in response
to the Government’s concerns that the DHS would have difficulty
coordinating scheduling of hearings in the Immigration Courts if required to
set initial hearing dates in notices to appear in order to trigger the “stop-time”
rule, the Court responded that the DHS had previously established such an
arrangement with the courts and that “[g]iven today’s advanced software
capabilities, it is hard to imagine why DHS and immigration courts could not
again work together to schedule hearings before sending notices to appear.”
Id. at 2119.
The Court also responded to concerns that “[r]equiring the Government
to furnish time and place information in a notice to appear” would impede
the statute’s objective of preventing administrative delays by noting that
“once a proper notice to appear is served, the stop-time rule is triggered, and
a noncitizen would be unable to manipulate or delay removal proceedings to
‘buy time.’” Id.
Justice Alito’s dissenting opinion confirms that the “stop-time rule” is
triggered when the DHS “serve[s] a notice to appear that, at the very least,
‘specif[ies]’ the ‘time and place’ of the removal proceedings.” Id. at 2125
(Alito, J., dissenting) (quoting id. at 2113 (majority opinion)). In Justice
Alito’s view, the Court’s holding means that, “going forward the
Government will be forced to include an arbitrary date and time on every
notice to appear that it issues.” Id. at 2129. Justice Sotomayor, writing for
the majority, responds that it trusts the Government will not “engage in
[such] ‘arbitrary’ behavior.” Id. at 2119.
The reasoning of the Supreme Court in Pereira, when considered in its
entirety, 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 section
239(a)(1) “notice to appear” that includes the date, time, and place of hearing
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in order to trigger the “stop-time” rule. 4 The Court in Pereira repeatedly
emphasized the “plain text” of the “stop-time” rule and left no room for
agency gap-filling 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, under the Act and implementing regulations designating the
DHS as the agency responsible for issuing a “notice to appear,” a “notice of
hearing” is not a “notice to appear” and, therefore, it does not satisfy the
requirement that the DHS serve a section 239(a)(1) “notice to appear” that
specifies the date and time of hearing, in order to trigger the “stop-time” rule.
See 8 C.F.R. § 239.1 (2018) (designating the DHS officials authorized to
issue a “notice to appear”).

II. MAJORITY’S APPROACH
The majority decision essentially adopts the approach taken by the United
States Court of Appeals for the Third Circuit in Orozco-Velazquez v. Att’y
Gen. U.S., 817 F.3d 78 (3d Cir. 2016), to hold that a notice of hearing issued
by an Immigration Court may trigger the “stop-time” rule when the DHS has
not specified a hearing date in the notice to appear. 5 In its analysis of the
“stop-time” rule, Orozco-Velazquez relied on section 239(a)(2) to conclude
that “Congress’s incorporation of [section 239(a)] in its entirety conveys a
clear intent: that the government may freely amend and generally
supplement its initial [notice to appear].” Id. at 83. Since the decision in
Orozco-Velazquez was issued prior to Pereira, its reasoning does not take
into account the Supreme Court’s determination that the “stop-time” rule
4

The Court in Pereira, 138 S. Ct. at 2115 n.7, reasoned that
neither the Government nor the dissent offers any convincing basis, much less one
rooted in the statutory text, for treating time-and-place information as any less crucial
than charging information for purposes of triggering the “stop-time” rule. . . . At
bottom, the Government’s self-serving position that a notice to appear must specify
charging information, but not the time-and-place information, reveals the
arbitrariness inherent in its atextual approach to the “stop-time” rule.

5

The majority reads Pereira, which refers to various circuit court decisions, as
favorably endorsing Orozco-Velazquez. However, the Supreme Court’s reference to
Orozco-Velazquez is limited to a parenthetical explanation of that decision, which
describes the case as “holding that the stop-time rule unambiguously requires service of a
‘notice to appear’ that meets [section 239(a)(1)’s] requirements.” Pereira, 138 S. Ct. at
2113 n.4. The Court does not refer to or endorse the part of the Orozco-Velazquez decision
that finds that service of a hearing notice by an Immigration Court can be an event that
triggers the stop-time rule.

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contains plain and unambiguous language in its description of the event that
triggers the “stop-time” rule, namely, the service of a section 239(a)(1) notice
to appear. 6
To the extent that Orozco-Velazquez relied on section 239(a)(2) to permit
an Immigration Court’s notice of hearing to trigger the “stop-time” rule, its
rationale directly conflicts with Pereira’s reading of that statutory provision.
As discussed above, the Court in Pereira explicitly rejected reliance on
section 239(a)(2) as the underpinning for an approach that would excuse the
DHS from the requirement that it specify the time and place of hearing in its
notice to appear in order to trigger the “stop-time” rule. The Court in Pereira
found that, “[b]y 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 [239(a)]’ that specified a
time and place as required by [section 239(a)(1)(G)(i)].” Pereira, 138 S. Ct.
at 2114. Otherwise, as the Court explained, there would be no time or place
to change or postpone.
In reaching its result, the majority conflates an Immigration Court’s
service of a “notice of hearing” with the DHS’s service of a “notice to
appear.” The majority essentially amends Congress’ plain language
description of the triggering event in the “stop-time” rule (DHS service of
the “notice to appear”) by adding an additional triggering event (Immigration
Court service of a “notice of hearing”), so that the “stop-time” rule can be
triggered by either event, whichever occurs first. The distinction between a
“notice to appear” issued by the DHS and a “notice of hearing” issued by an
Immigration Court is well understood. An Immigration Court does not serve
a “notice to appear” because neither the Immigration Court nor an
Immigration Judge has been delegated such authority. See 8 C.F.R. § 239.1
(designating the DHS officials authorized to serve a “notice to appear” in
accordance with section 239(a) of the Act).
The majority reasons that because a notice of hearing sent by an
Immigration Court resolves concerns about adequate notice and also
provides a benchmark for stopping accrual of physical presence, the purposes
of the “stop-time” rule would be met under their approach. This may be true,
but such an approach does not take into account the plain text analysis of the
“stop-time” rule outlined by the Supreme Court in Pereira, and it ignores the
Court’s recognition that the “stop-time” rule is triggered by service of a
6

A section 239(a)(1) notice to appear is the charging document issued by the DHS on a
Form I-862 (Notice to Appear). The Form I-862 provides all of the information required
by section 239(a)(1) of the Act, and it leaves blank space for specification of the charges
against the alien and the time and place of the hearing. Under the “stop-time” statute, the
DHS may amend and reissue its initial notice to appear, and the DHS’s service of a reissued
notice to appear specifying the date of hearing may trigger the “stop-time” rule.

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section 239(a)(1) “notice to appear” that specifies the time and place of
hearing as an essential part of the charging document. It also ignores the
implementing regulations that recognize that only the DHS can issue a
“notice to appear” in accordance with section 239(a) of the Act. 8 C.F.R.
§ 239.1. Because the Act provides an explicit definition of a section
239(a)(1) “notice to appear” and the “stop-time” rule explicitly refers to that
definition, the plain language of the statute controls.
According to this plain language, an Immigration Court’s service of a
notice of hearing cannot trigger the “stop-time” rule. However, the Court’s
decision in Pereira does not preclude the DHS from serving a new notice to
appear that meets the requirements of the “stop-time” rule. See, e.g.,
Moscoso-Castellanos v. Lynch, 803 F.3d 1079, 1082 (9th Cir. 2015) (noting
that when the initial notice to appear did not specify a date of hearing,
“accrual of physical presence did not stop until [the alien] was served a
second [notice to appear] that included the missing hearing information”
(citing Garcia-Ramirez v. Gonzalez, 423 F.3d 935, 937 n.3 (9th Cir. 2005))). 7
Additionally, proof of 10 years of continuous physical presence is just
one among many eligibility requirements for cancellation of removal. The
applicant must also demonstrate that (1) removal would cause “exceptional
and extremely unusual hardship” to a citizen or lawful permanent resident
spouse, child, or parent; (2) the applicant has “good moral character”; (3) the
applicant was not inadmissible or removable for specified criminal offenses;
and (4) relief from removal should be granted in the exercise of discretion.
Sections 240A(b)(1)(B)–(D) of the Act.
Entry of a final order of removal is also relevant to accrual of continuous
physical presence. See, e.g., Matter of Cerna, 20 I&N Dec. 399, 400–01
(BIA 1991) (holding that the residence requirement for a waiver of
deportation under former section 212(c) of the Act, 8 U.S.C. § 1182(c)
(1988), ends upon entry of a final order of removal); Matter of Chang, 10
I&N Dec. 14, 16 (BIA 1962) (same with regard to the physical presence
requirement for suspension of deportation under former section 244(a) of the
Act, 8 U.S.C. § 1254(a) (1958)). The entry of an in absentia order of removal
after notice of the consequences of failure to appear for removal proceedings
also renders an alien ineligible for cancellation of removal for 10 years after
the date of the final order of removal. Section 240(b)(7) of the Act, 8 U.S.C.
§ 1229a(b)(7) (2012).

7
Of course, the Court in Pereira abrogated Moscoso-Castellanos insofar as the Ninth
Circuit deferred to the Board’s decision in Matter of Camarillo. The Ninth Circuit’s
approach prior to Camarillo presents an aspect of the circuit court conflict referred to in
Pereira, as well as an approach that is fully consistent with the Court’s holding and
reasoning there.

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Interim Decision #3951

III. JURISDICTION
In Matter of Bermudez-Cota, 27 I&N Dec. 441 (2018), the Board held
that a section 239(a)(1) notice to appear that does not specify the time and
place of an alien’s initial removal hearing vests an Immigration Judge with
jurisdiction over the removal proceedings and meets the requirements of
section 239(a) of the Act, so long as a notice of hearing specifying this
information is later sent to the alien. In so holding, we distinguished Pereira,
noting that “the Court did not hold that proceedings initiated by a notice to
appear that fails to specify a time, date, and place for the initial hearing
should be terminated.” Id. at 444. Application of the “stop-time” provision
affects eligibility for cancellation of removal, a discretionary form of relief,
while determination of Immigration Court jurisdiction involves termination
of proceedings. Different statutory and regulatory frameworks govern each
of these distinct issues.
The Second, Sixth, and Ninth Circuits, in decisions addressing
Immigration Court jurisdiction, have recently approved the Board’s
reasoning and holding in Bermudez-Cota, while emphasizing that the
“stop-time” issue addressed in Pereira involves a distinct and separate issue.
See Banegas Gomez v. Barr, No. 15-3269, 2019 WL 1768914, at *6–8
(2d Cir. Apr. 23, 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1160–62 (9th
Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305, 312–15 (6th Cir.
2018).
As the Sixth Circuit explained, “The issue in Pereira required the Court
to begin by looking to the plain text of the stop-time statute, which provides
that the period of continuous physical presence necessary to qualify for
cancellation of removal ends ‘when the alien is served a notice to appear
under section [239(a)].’” Hernandez-Perez, 911 F.3d at 313. The court
pointed out that “based on the plain text of the statute, it is clear that to trigger
the stop-time rule, the Government must serve a notice to appear that, at the
very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.” Id.
(alteration in original) (quoting Pereira, 138 S. Ct. at 2114). The court
acknowledged that 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.” Id. at 314. However, referring to
the breadth of Pereira’s holding on the “stop-time” rule, the court noted that
the importation of that approach into the jurisdictional context “would have
unusually broad implications.” Id.

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In Karingithi, the Ninth Circuit noted that “Pereira was not in any way
concerned with the Immigration Court’s jurisdiction.” Karingithi, 913 F.3d
at 1159. Rather, the court emphasized that “Pereira’s analysis hinges on ‘the
intersection’ of two statutory provisions: [section 240A(d)(1)’s] stop-time
rule and [section 239(a)’s] definition of a notice to appear.” Id. at 1161
(quoting Pereira, 138 S. Ct. at 2110). The court noted that the “stop-time
rule is not triggered by any ‘notice to appear’—it requires a ‘notice to appear
under section [239(a)].’” Id. (quoting section 240A(d)(1) of the Act). The
court concluded that “Pereira treats this statutory cross-reference as crucial:
‘the word “under” provides the glue that bonds the stop-time rule to the
substantive time-and-place requirements mandated by [section 239(a)].’” Id.
(quoting Pereira, 138 S. Ct. at 2117); see also Banegas Gomez, 2019 WL
1768914, at *7 (“The result in Pereira was based on the intersection of two
statutory provisions, one of which, addressing the stop time rule, is not
relevant to [the alien’s] proceeding at all.”).

IV. CONCLUSION
Congress, in section 240A(d)(1)(A) of the Act defined the event that
triggers the “stop-time” rule as “service of a notice to appear under section
239(a).” The Court in Pereira, 138 S. Ct. at 2114–15, held that Congress’
reference to “service of a notice to appear under section 239(a),” means a
“notice to appear” as defined in section 239(a)(1) of the Act. The Court also
held that, “[b]ased on the plain language of the statute, it is clear that to
trigger the stop-time rule, the Government must serve a notice to appear that,
at the very least, ‘specif[ies]’ the ‘time and place’ of the removal
proceedings.” Id. at 2114 (alteration in original) (quoting section 239(a)(1)
of the Act). As the Court concluded, “At the end of the day, given the clarity
of the plain language, we ‘apply the statute as it is written.’” Id. at 2119–20.
The plain language of the Act leaves no room for the majority’s conclusion
that a subsequent notice of hearing can cure a notice to appear that fails to
specify the time and place of the initial removal hearing.
For these reasons, neither the service of the notice to appear nor the
subsequent service of a notice of hearing on the respondents triggered the
“stop-time” rule for purposes of cancellation of removal under section 240A
of the Act. We therefore respectfully dissent.

545


Interim Decision #2149

MATTER OF FELIX

In Deportation Proceedings
A-17236014
Decided by Board May 17, 1972
A motion to reopen or reconsider, submitted with the required fee, may not be
rejected as inadequate without a written adjudication stating the basis for
decision.
CHARGE:
Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2))—Nonimmigrant
visitor—•remained longer than permitted.
ON BEHALF ny SERVICE!

ON BEHALF OF RESPONDENT:
Earl R. Steen, Esquire
840 North Broadway
Suite 200
Los Angeles, California 90012

Charles Gordon
General Counsel

This case is before us pursuant to our order dated February 23,
1972, directing that the record be certified to us for review under 8
CFR 3.1(c).
Respondent is a 44-year-old male alien, native and citizen of the
Philippines, who was admitted to the United States on or about
September 12, 1965 as a nonimmigrant visitor and has remained
longer than permitted. At a hearing before a special inquiry officer
on August 23, 1968, respondent admitted the truth of the factual
allegations of the order to show cause and conceded deportability.
The special inquiry officer found him to be deportable as charged
and granted him the privilege of departing voluntarily on or
before September 22, 1968, with provision for an alternate order of
deportation if he failed to depart when and as required. Respondent did not appeal to this Board and the special inquiry officer's
order became administratively final. On respondent's failure to
depart voluntarily within the time limited, the alternate order of
deportation vested.
Notified to surrender for deportation on January 18, 1972,
respondent filed a petition for review in the United States Court of
Appeals for the Ninth Circuit, No. 72-1098. On January 20, 1972,

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counsel for respondent filed with the Service a motion to reopen
the deportation proceedings, with the requisite filing fee. The
motion, which was unsworn and unsupported, recited that respondent is the beneficiary of an approved sixth preference visa
petition and is eligible for third preference status. Reopening of
the deportation proceedings was requested in order that respondent might seek the privilege of indefinite voluntary departure.
In a letter to counsel dated January 28, 1972, the special inquiry
officer returned the motion without action, for the stated reason
that he did not consider it to be a proper motion because it failed
to meet the requirements of the regulations' The Service's General Counsel, questioning the propriety of the special inquiry
officer's disposition of the motion, formally called the matter to our
attention and we directed that the record be certified to us for
review, subject to consent of the Court of Appeals, which has been
granted.
Judging by the terms of his letter to counsel, the special
inquiry officer rejected the motion without adjudicating it. In our
view, it is impermissible to dispose of a fee-paid motion in this
fashion. A respondent in a deportation proceeding who files a
motion and submits the required fee is entitled to an adjudication
by the tribunal having jurisdiction? The decision need not be long
or elaborate. However summary, it should state the basis for
decision sufficiently, so that an appellate tribunal can appraise it.
Decisions of special inquiry officers on motions in deportation
proceedings are appealable to this Board under 8 CFR 3.1(b)(2). An
alien's right to have this Board on appeal review the adverse
decision of a special inquiry officer would be rendered nugatory if
the special inquiry officer were permitted thus summarily to reject
his motion without adjudicating it.
We do not know why the special inquiry officer in this case took
the course he did. Perhaps it was to circumvent what he considered a frivolous and time-consuming appeal to this Board, to be
followed by equally frivolous and time-consuming litigation in the
courts. Dilatory motions to reopen, filed on the eve of deportation,
and dilatory appeals to this Board are not unknown to the special
inquiry officers and to us. We have taken steps to eliminate ready
opportunities for delay. Under our recently amended regulations,
an automatic stay of deportation is no longer provided on appeal
from a special inquiry officer's order denying a motion to reopen 3
and oral argument on such an appeal is no longer available as a
,

The pertinent requirements are set forth in 8 CFR 103.5 and 242.22.
8 CFR 103.5: "... Rulings upon motions to reopen or motions to reconsider
shall be by written decision ..."
3 8 CFR 3.6(b), as added by 36 F.R. 316 (January 9, 1971).
1

2

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matter of right.4 We give priority to the consideration and determination of such appeals.
There is no sound reason why we should not treat the special
inquiry officer's letter of January 28, 1972 as a written decision
denying the notion. The reasons why the special inquiry officer did
not grant the motion are clearly stated and his statement that the
motion "is returned without action" is, in a realistic sense, the

equivalent of a denial. Treating that letter as denial adjudication,
we conclude that the motion was properly denied.
Not only did the motion fail to conform to the requirements of
the regulations (footnote 1, supra), but even if supported it could
not make out a prima facie case for reopening. What respondent
sought by the motion was a reopening of the deportation proceedings so that indefinite voluntary departure could be requested.
But reopening of the proceedings for this purpose would be
meaningless; even if the proceedings were reopened, the special
inquiry officer would have no power to grant the relief sought.
Indefinite voluntary departure is exclusively within the power of
the District Director. If, in the exercise of his prosecutive discretion, he declines to authorize indefinite voluntary departure and
instead issues an order to show cause, neither the special inquiry
officer nor this Board on appeal possesses power to review that
discretionary determination, Matter of Geronimo, 13 I. & N. Dec.
680 (DIA, 1971).

ORDER: The denial of the respondent's motion to reopen is
affirmed.

4

8 CFR 3.1(e), as amended by 36 F.R. 316 (January 9, 1971).

145


Interim Decision #2191

MATTER OF DARWISH

In Visa Petition Proceedings •
A-19245744

Decided by Board April 4, 1973
Under the law of the Dominican Republic, a divorce decree issued by a court of
law does not suffice per se to dissolve the marriage bonds; this is accomplished
by a "declaration" or pronouncement by the Official of the Civil Registry.
Hence, in the absence of a showing by petitioner that his decree of divorce
issued by a court in the Dominican Republic in 1971 was pronounced by the
Office of Civil Registry, he has failed to establish that his prior marriage was
legally terminated. Notwithstanding the subsequent marriage in Jerusalem in
1972 of petitioner and beneficiary (Muslim citizens of Jordan) may be valid
under applicable Jordanian-Muslim law as a plural marriage, irrespective of
whether his prior marriage was legally terminated, plural marriages offend
the public policy of the United States and such subsequent marriage cannot
be accorded recognition for immigration purposes in the absence of a showing
that it is a monogamous marriage.
ON BEHALF OF PETITIONER:

Abraham Kaufman, Esquire
521 Fifth Avenue
New York, New York 1001?

This case comes forward on appeal from an order of the Acting
Officer in Charge, Athens, Greece, dated May 31, 1972, denying the
visa petition for the reason that the petitioner's previous marriage
was not shown to have been terminated. We shall dismiss the
appeal.
The petitioner, a male lawful permanent resident alien, has

applied for visa preference classification of the beneficiary as his
spouse. Both are natives and citizens of Jordan. The petitioner
himself obtained permanent resident status in the United States
on June 30, 1971, by virtue of marriage to a permanent resident of
the United States. He claims that this earlier marriage, which was
to a Dominican woman, was terminated, by divorce.
The regulations reqUire that a visa petition on behalf of a spouse
be accompanied by proof of marriage to the beneficiary and proof
of legal termination of prior marriages, 8 CFR 204.2(c)(2). A
marriage certificate was submitted showing that the petitioner

and the beneficiary contracted marriage in the Sheriya (Muslim
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Interim Decision #2191
Religious) Court of Jerusalem on April 23,1972. A decree of divorce
issued by a court in the Dominican Republic on November 23,
1971, was submitted as evidence of the termination of the prior
marriage; no evidence has been submitted that the decree was
pronounced by an official of the Civil Registry.
A report prepared for us by the Library of Congress, dated
January 1972, concerning this case informs us that:
A divorce decree issued by a court of law of the Dominican Republic does not
suffice per se to dissolve the marriage bonds. This is accomplished by a
"declaration" or pronouncement by the Official of the Civil Registry that must
be made together with the registration in that office of the divorce decree issued

by the court. To this effect, in cases of mutual consent divorce petitions, Article
31 of the divorce law provides that:
The spouses . . . are responsible for registering the divorce decree in
the Office of the Civil Registry. The decree shall be pronounced . . . no
less than eight days after the decree was issued.
Furthermore, Article 19 of the divorce law states that:
The plaintiff who fails to act within the term of [eight days] shall lose
the benefits granted to him by the decree thus obtained, .. .

Because no evidence has been presented by the petitioner that
his divorce was pronounced (by the Office of the. Civil Registry) as
required by Dominican law, he has not established that the divorce action was completed and that the divorce took effect. Con

sequently, he has not established that his prior marriage was
legally terminated.
Notwithstanding the fact that the petitioner's first marriage
may not have been legally terminated, his marriage to the beneficiary would nevertheless be a valid marriage in Jerusalem
because the law there permits plural marriages. According to the
report prepared for us by the Library of Congress, Israeli law
controls in Jerusalem. Pursuant to Israeli law, Muslim religious
courts have jurisdiction over matters of personal status of
Muslims.' For citizens of Jordan, Israeli law 2 requires that the
Muslim religious courts apply the law of Jordan. The petitioner
and the beneficiary are Muslim citizens of Jordan. Thus, Jordanian law governs their marriage in Jerusalem. Article 10 of the
Family Rights Law of Jordan, Law No. 92 of 1951, permits a man
to have four wives.
Plural marriages, however, offend the public policy of the United States, Reynolds v. United States, 98 U.S. 145 (1879); Cleveland

v. United States, 329 U.S. 14 (1946); Matter of G—, 6 I. & N. Dec. 9
(BIA, 1953). Thus, even though the petitioner's second marriage
1 Articles 51 and 52 of the Palestine (Amendment) Order-in-Council, 1922-1947,
still in force per Article 11 of the Law and Administration Ordinance No. 1, 57081948.
& Article 52.

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Interim Decision #2191
may be valid according to Jordanian law as a plural marriage,
irrespective of whether his prior marriage was legally terminated,
this Board cannot accord recognition to it, unless he can show that
it is a monogamous marriage.
In visa petition proceedings, the petitioner has the burden of
establishing eligibility for the benefit sought,Matter of Brantigan,
11 I. & N. Dec. 493, 495 (BIA, 1966); Matter of Soo Hoo, 11 I. & N.
Dec. 151, 152 (BIA, 1965); Matter of Yee, 11 I. & N. Dec. 27, 30 BIA,
1964); and Matter of B —, 9 I. & N. Dec. 521, 523 (BIA, 1961). The
petitioner has not met this burden.
Our decision is, of course, without prejudice to submission by the
petitioner of a new visa petition accompanied by the requisite

proof.
ORDER: The appeal is dismissed.

309