925 F.3d 396

CALLAHAN, Circuit Judge dissenting:
I agree with the majority that the United States Supreme Court's opinion in Pereira v. Sessions , --- U.S. ----, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), incontrovertibly establishes that for a notice to appear to trigger the "stop-time rule," the noncitizen must be provided with the time and place of the removal proceedings. However, I do not read Pereira as holding that the notice of the time and place must be provided in a single document. Rather, I read Pereira as not prohibiting the Government from supplementing a deficient notice to appear by subsequently providing notice of the time and place of the removal proceedings, with the consequence that the stop-time rule is triggered upon receipt of the supplemental notice.
Initially, it should be noted that the majority's critical holding-that all items listed in 8 U.S.C. § 1229(a)(1) must be contained in a single Notice to Appear-was not in issue in Pereira , and accordingly was not directly addressed by the Supreme Court. Pereira entered the United States as a temporary "non-immigrant visitor" in 2000. Pereira , 138 S. Ct. at 2112. He was arrested for operating a vehicle while under the influence of alcohol in 2006. Id . In May 2006, the Department of Homeland Security ("DHS") served him with a "Notice to Appear," which stated that removal proceedings were being initiated against him for overstaying his visa, but "the notice did not specify the date and time of Pereira's removal hearing." Id . More than a year later, DHS attempted to mail Pereira "a more specific notice setting the date and time for his initial removal hearing." Id. "But that second notice was sent to Pereira's street address rather than his post office box (which he had provided to DHS), so it was returned as undeliverable." Id . In 2013, Pereira was arrested for driving without his headlights on and was subsequently detained by DHS. Id. By this time, if the stop-time rule was not triggered by the 2006 notice, Pereira had long since accrued the necessary years of continuous physical presence in the United States to be eligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1). Because DHS failed to serve Pereira with a supplemental notice prior to Pereira having been in the United States for over a dozen years, the Supreme Court was not called upon to, and did not, address whether all the requirements of a notice to appear listed in § 1229(a) must be contained in a single document.
Instead, the Court first narrowed the dispositive question to whether "a 'notice to appear' that does not specify the 'time and place at which the proceedings will be held,' as required by § 1229(a)(1)(G)(i), trigger[s] the stop-time rule." Id . at 2113. It then held, contrary to the position advocated by the Government, that "[a] putative notice to appear that fails to designate the specific time or place of the noncitizen's proceeding is not a 'notice to appear under section 1229(a),' and so does not trigger the stop-time rule." Id . at 2114.
From the Pereira holding, the majority leaps to the conclusion that the notice of hearing that Lorenzo subsequently received-that did provide notice of the time and place of his removal proceeding-did not, as a matter of law, cure the defect in the initial notice to appear, and that the only cure is for DHS to issue, now years later, a new "Notice To Appear." Maj. Op. at 405.
The majority first supports its conclusion not by relying on the Supreme Court's opinion in Pereira , but by rejecting the Government's reliance on our opinion in Popa v. Holder , 571 F.3d 890 (9th Cir. 2009). Maj. Op. at 399-401. But the Supreme Court's rejection of our holding in Popa that a notice to appear need not contain the time and place of the proceedings, says nothing about whether all items listed in § 1229(a)(1) need to be contained in a single document.
Similarly, the majority's assertion that the Supreme Court "scrapped the notion that 'practical considerations' ... excuse[d] the failure to provide 'specific time, date and place' information,' " Maj. Op. at 401, again says nothing about whether a notice that fails to provide this information can be cured by a subsequent document that fully provides specific time, date, and place information.
Instead, the majority asserts that § 1229(a)"speaks clearly" in rejecting the position that the requisite notice may be contained in more than one document. The majority reasons that because 8 U.S.C. § 1229b(d)(1) states "when the alien is served a notice to appear," the "use of the singular indicates that service of a single document-not multiple-triggers the stop-time rule." Maj. Op. at 402. But even if § 1229b(d)(1)'s use of the singular contemplates that the notice to appear is generally issued in a single document, it does not follow that all the criteria listed in § 1229(a)must be contained in a single document.
The majority reads too much into the "use of the singular" in § 1229b. Title 1 U.S.C. § 1 states that "[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise- words importing the singular include and apply to several persons, parties or things. ..." The statutory context provides no indication that the use of the singular in § 1229b(d)(1) imposes a formalistic requirement that the notice be provided within a single document and that a deficiency may not be "cured" by a subsequent notice that includes the previously missing time and place information. Section 1229(a)(2) contemplates that there may be changes in the time or place of the removal proceedings of which the noncitizen must be notified. Here, Lorenzo was served with an April 11, 2008 notice of hearing setting forth the time and place for his removal proceedings and he appeared, with counsel, before the IJ on June 27, 2018. There can be no doubt that Lorenzo had actual notice of the time and place of his removal proceedings well before his June 27, 2018 hearing. The statute's use of the singular is too slender a reed to support the majority's insistence that all the criteria in § 1229(a)(1) must be contained in a single document.
The majority's cite to United States v. Hayes , 555 U.S. 415, 421, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009), hardly strengthens the reed because, in my view, the majority's reliance on "a notice" frustrates, rather than furthers, "Congress' aim." Id . at 422 n.5, 129 S.Ct. 1079. Furthermore, the Board of Immigration Appeals, sitting en banc, has declined to read the provision as requiring that the "written notice be in a single document." Matters of Mendoza-Hernandez and Capula-Cortes , 27 I. & N. Dec. 520, 531 (BIA 2019) (en banc).
The Supreme Court's concern in Pereira was with noncitizens receiving notification of the time and place of the removal proceedings and not with whether all the information was contained in a single document, entitled "Notice to Appear." In other words, the court was concerned with the noncitizen receiving the information rather than the form of the notice. Indeed, all the concerns underlying the Supreme Court's ruling in Pereira are satisfied by a properly served second document that supplements a deficient initial notice. The second notice then provides noncitizens with notice of the time and place of the proceedings that "is the essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceeding." Pereira , 138 S. Ct. at 2115. Similarly, such a notice would assure the noncitizen of the opportunity to secure counsel before the hearing. See id . at 2114-15 ; see also 8 U.S.C. § 1229(a)(2)(b)(1) (requiring that in order to allow the noncitizen to secure counsel, the hearing date shall not be scheduled earlier than 10 days after the service of the notice). Also, allowing the Government to furnish time and place information in a second document and triggering the stop-time rule on receipt of that notice make it more difficult for a noncitizen "to manipulate or delay removal proceedings to 'buy time.' " Id . at 2119.
My reading of Pereira is also the BIA's position. Mendoza-Hernandez , 27 I. & N. Dec. 520. In reading Pereira , the BIA stressed the Court's restriction of its ruling to a narrow issue, and its choice not to address the two-part notice process. Id . at 527-28. The BIA noted that the Court "explained that the fundamental purpose of notice is to convey essential information to the [noncitizen], such that the notice creates a reasonable expectation of the [noncitizen's] appearance at the removal proceeding." Id . at 531. The BIA held:
We conclude that in cases where a notice to appear does not specify the time or place of [a noncitizen'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 [noncitizen's] period of continuous residence or physical presence in the United States.
Id. at 529. Id . at 535. The BIA further observed that "[n]one of the courts involved in the circuit split had held that service of a subsequent notice of hearing that included time and place information was insufficient to perfect the notice to appear." Id . at 534-35.
The majority declines to defer to Mendoza-Hernandez , but the majority's reasoning is not persuasive. It first suggests that we do not defer to an agency's interpretation of a Supreme Court opinion. Maj. Op. at 402-03. True enough, but this does not mean that the position of the agency most effected by a statute does not deserve some consideration. Moreover, as I have explained, my reading of Pereira , although consistent with the BIA's reading, is in no way based on the BIA's decision. Second, the majority asserts that the BIA's analysis is disingenuous. Maj. Op. at 402-03. But this is just another way of disagreeing with my perspective and the BIA's perspective, as demonstrated by the majority's reliance on the dissent in Mendoza-Hernandez . The majority asserts that there is no ambiguity in the statute, but I find the BIA's recognition that Pereira can be read in a literal sense to reach a different result to be a fairer description of the overall question. Finally, the majority argues that the BIA may not rely on prior circuit decisions, such as Popa , because they were abrogated by Pereira . Maj. Op. at 403-04. But Pereira 's abrogation of cases such as Popa was not a ruling on the two-part notice process at issue in this case.
I continue to read Pereira as allowing for a two-part notice process and find this approach to be consistent with our opinion in Karingithi v. Whitaker , 913 F.3d 1158 (9th Cir. 2019). Karingithi, like Lorenzo, had received a notice to appear that did not specify the date and time of the removal hearing. Id . at 1159. Karingithi argued "that if a notice to appear does not state the time for her initial removal hearing, it is not only defective under § 1229(a), but also does not vest jurisdiction with the IJ." Id . at 1160. We disagreed, holding that the Immigration Court's jurisdiction was governed by regulation, not by § 1229(a), and thus a notice to appear need not include time and date information to vest jurisdiction in the IJ. Id. We held that " Pereira simply has no application here," noting that the only question in Pereira "was whether the petitioner was eligible for cancellation of removal," and the "Court's resolution of that 'narrow question' cannot be recast into a broad jurisdictional rule." Id . at 1161.
Although Karingithi , as well as Bermudez-Cota , 27 I. & N. Dec. 441, concerned the interpretation of regulations that are not applicable to Lorenzo's case, the majority, like Karingithi and Bermudez-Cota, seeks to expand the "narrow question" addressed in Pereira into a broad pronouncement. The sounder approach, as reflected in our opinion in Karingithi , and in the BIA's en banc opinion in Mendoza-Hernandez is to abide by the Supreme Court's statement that it decided the "much narrower" issue. Pereira , 138 S. Ct. at 2113.
Furthermore, we should not frustrate Congressional intent by expanding Pereira beyond its narrow holding. Section 1229b sets forth a clear policy that a noncitizen becomes eligible for cancellation of removal only after residing in the country for a certain number of years. Furthermore, § 1229b(d)(1) clearly states that "any period of continuous residence or continuous physical presence" ends "when the alien is served a notice to appear." Pereira requires that DHS's misinterpretation of the statute as permitting notices that do not set forth the time and place for removal proceedings be corrected. That misinterpretation and the concerns underlying Pereira are resolved by allowing DHS to cure an initial notice to appear with a subsequent notice of hearing setting forth the time and place of the removal proceeding and stopping the clock upon the noncitizen's receipt of the subsequent notice. Requiring DHS to serve new notices to appear on all noncitizens who received deficient notices to appear, rather than allowing for subsequent notices of hearing, is a windfall for noncitizens and unnecessarily interferes with Congress's intent.
I read Pereira as allowing DHS to cure a deficient notice to appear by subsequently providing a noncitizen with actual notice of the time and place of the removal proceedings, with the result that the stop-time rule is triggered upon the noncitizen's receipt of the supplemental notice. Accordingly, I dissent from the majority's opinion.
Noncitizens who are subject to removal proceedings but have accrued 10 years of continuous physical presence in the United States may be eligible for cancellation of removal. 8 U.S.C. § 1229(b)(1). The "stop-time rule" set forth in § 1229b(d)(1) provides that the period of continuous physical presence ends when a noncitizen is served with a notice to appear under 8 U.S.C. § 1229(a). See Pereira , 138 S. Ct. at 2109.
Consistent with the Supreme Court's opinion in Pereira , 138 S. Ct. at 2110 n.1, the term "noncitizen" is used to refer to any person who is not a citizen or national of the United States.
Title 8 U.S.C. § 1229(a)(1) states:
(a) Notice to appear
(1) In general
In removal proceedings under section 1229a of this title, 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:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory provisions alleged to have been violated.
(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) and (ii) a current list of counsel prepared under subsection (b)(2).
(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 1229a of this title.
(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien's address or telephone number.
(iii) The consequences under section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph.
(G)(i) The time and place at which the proceedings will be held. (ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.
A further indication that the Supreme Court in Pereira was concerned with the general need for notice of the time and place of the removal proceedings may be gleaned from its discussion of the need for a "notice to appear," rather than a single "Notice to Appear" containing all of the criteria set forth in § 1229(a)(1).
The BIA continued:
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 proceeding.
Mendoza-Hernandez , 27 I. & N. Dec. at 531.
This position was foretold in the BIA's decision in Matter of Bermudez-Cota , 27 I. & N. Dec. 441, 447 (BIA 2018). There the BIA held that a notice to appear that did not specify the time and place of a noncitizen's removal hearing nonetheless vests the IJ with jurisdiction over the removal proceedings. The BIA emphasized that unlike Pereira, Bermudez-Cota "was properly served with both a notice to appear and a subsequent notice of hearing." Id . at 443.
Our opinion also noted that Karingithi "had actual notice of the hearings through multiple follow-up notices that provided the date and time of each hearing." Id . at 1159.

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