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Decided:  March 17, 2014

The Fourth Circuit Court of Appeals denied in part and dismissed in part a Nicaraguan immigrant’s petition for review of the Board of Immigration’s finding that he was ineligible for cancellation of removal.

The Immigration and Nationality Act permits the Attorney General to cancel removal of aliens that have been physically present in the United States for a continuous period of not less than 10 years preceding the date of such application. Defendant Gustavo Urbina (“Urbina”) entered the United States on October 4, 2000, on a tourist visa and overstayed its expiration. In December 2009, the Department of Homeland Security (“DHS”) served Urbina with a notice to appear, charging him with having illegally entered the United States. This charge was based on Urbina’s own representations in applications for temporary protected status, asserting that he had entered the country in 1998. Before an Immigration Judge (“IJ”), Urbina asserted that, although he was not in the United States legally, he had entered legally in October 2000 and, therefore, the charge against him was incorrect. The IJ asked Urbina to file a copy of his passport showing his October 2000 entry. Urbina, in turn, requested that the government file an I-261 form at the next hearing, swapping the original charge on the notice to appear (illegal entry) for the factually correct charge (illegal presence). The DHS amended the charge, alleging that Urbina was removable as an alien who overstayed his period of authorized presence.

On appeal, Urbina argued that (1) the original notice to appear was invalid and thus did not stop the accrual of the ten-year statutory period; (2) the IJ erred in denying his motion to terminate and in continuing the proceedings to allow DHS to amend the charge against him; (3) the DHS did not have the authority to promulgate the regulation permitting such an amendment; (4) the IJ violated his procedural due process right; and (5) the BIA improperly denied his motion to reconsider.

First, Urbina contended that his original notice to appear was invalid because it had an incorrect charge and did not include the specific date and time of the hearing. However, the BIA in In re Camarillo held that the stop-time rule does not require that the notice to appear include the date and time of a hearing. Although Camarillo did not directly address whether its analysis would also apply to incorrect charges, the BIA in a footnote suggested that “there is no reason to conclude that Congress would have intended an alien to be able to accrue time between service of the notice to appear and service of an I-261, which may occur much later.”

Second, Urbina argued that the IJ improperly denied his motion to terminate the removal proceedings. However, in asking DHS to file the I-261 form, the IJ did precisely what Urbina had originally requested. Moreover, Urbina did not object to the IJ’s decision to continue the case.

Third, Urbina contended that the amended charge itself was invalid, based on the fact that the Immigration and Nationality Act clearly provides for changes to the time and date of proceedings on a notice to appear, but does not contain a similar provision for amending charges. However, the Fourth Circuit held that although the statute is silent regarding the amendment of charges, it is sensible to allow DHS discretion to make changes as it acquires more information.

Fourth, Urbina contended that the IJ violated his procedural due process right by pretermitting his application for cancellation of removal. He claimed there were “open factual issues” regarding his eligibility of relief: that is, whether the court should measure the ten years from Urbina’s purported January 1998 entry date, rather than the October 2000 entry. However, the Fourth Circuit concluded that it lacked jurisdiction to review the claim because Urbina failed to raise the question before the BIA.

Finally, Urbina asked that the Fourth Circuit reverse the BIA’s denial of his motion to reconsider. Urbina focused on the BIA’s claim that the inaccuracies in the original notice to appear were based upon Urbina’s fraudulent statements in his previous sworn applications for temporary protected status. Urbina argued that the BIA overstepped its authority by finding the statements “fraudulent,” as the IJ never made such a finding itself. The BIA’s decision, however, made clear that it relied on Camarillo as the primary basis for denying the motion for reconsideration.

Full Opinion

– Sarah Bishop