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Pierre-Paul v. Barr

United States Court of Appeals, Fifth Circuit

July 18, 2019

JORDANY PIERRE-PAUL, also known as Yves Pierre, also known as Yves Paul, Petitioner,
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL, Respondent.

          Petitions for Review of Order of the Board of Immigration Appeals BIA No. A076 459 138

          Before SMITH, WIENER, and ELROD, Circuit Judges.

          JENNIFER WALKER ELROD, CIRCUIT JUDGE

         Jordany Pierre-Paul petitions for review of the order of the Board of Immigration Appeals (BIA), arguing that the immigration court lacked jurisdiction, that the BIA erred in denying his application for asylum, withholding of removal, and cancellation of removal, and that the immigration judge violated his due process rights. Because we reject Pierre-Paul's jurisdictional and due process arguments, we deny his petition in part. Because we lack jurisdiction to review the denial of asylum, withholding of removal, and cancellation of removal, we dismiss his petition in part.

         I.

         Pierre-Paul is a citizen of Haiti who was admitted to the United States on May 14, 2001, based on his mother's asylum. Since his arrival to the United States, Pierre-Paul acquired a lengthy criminal record with nine convictions. Before the initiation of his removal proceedings, Pierre-Paul had four criminal convictions: a 2005 conviction for criminal trespass, a 2007 conviction for evidence tampering, a 2007 conviction for making a terroristic threat, and a 2009 conviction for assault causing bodily injury.

         On May 11, 2010, the government initiated removal proceedings against Pierre-Paul by filing a notice to appear with the immigration court. In the initial notice to appear, the government included a charge for being an alien convicted of a crime involving moral turpitude within five years of admission to the United States, under 8 U.S.C. § 1227(a)(2)(A)(i). The initial notice to appear was personally served on Pierre-Paul, but it did not specify the time and date of the initial hearing. The immigration court subsequently sent a notice of hearing on May 11, 2010 that specified that Pierre-Paul's initial proceeding was scheduled for 8:30 AM on May 21, 2010. The notice of the initial hearing was served both in person and by mail. Pierre-Paul, who was detained in ICE custody, attended his initial hearing on May 21, 2010 "via televideo."

         While his removal proceedings were pending between October 2011 and December 2015, Pierre-Paul acquired four more criminal convictions: a 2011 conviction for driving without a license, a 2012 conviction for cocaine possession, a 2012 conviction for making a terroristic threat, and a 2015 conviction for cocaine possession. For this reason, Pierre-Paul was in and out of jail and prison, and his removal proceedings were not re-calendared until August 2016. In June 2010, the government added a charge for being an alien convicted of multiple crimes involving moral turpitude, under 8 U.S.C. § 1227(a)(2)(A)(ii), based on Pierre-Paul's 2007 convictions for evidence tampering and making a terroristic threat. In December 2016, the government also added charges, under 8 U.S.C. § 1227(a)(2)(B)(i), for being an alien convicted of a crime related to a controlled substance based on his convictions for cocaine possession.

         After a competency hearing held on October 6, 2016, an immigration judge found Pierre-Paul mentally incompetent. At the hearing, the immigration judge ordered that an attorney be appointed to represent Pierre-Paul to protect his rights and facilitate his participation in subsequent hearings. In March 2017, Pierre-Paul's case was transferred to a different immigration judge who ultimately ordered Pierre-Paul removed and denied his application for asylum, withholding of removal, relief under the Convention Against Torture (CAT), and cancellation of removal.

         On September 22, 2017, the immigration judge issued her order. In her order, the immigration judge noted the fact that a previous immigration judge had found Pierre-Paul incompetent and appointed counsel. The immigration judge also observed that, as the proceedings continued, additional procedural safeguards were placed: Namely, Pierre-Paul's narrations of facts in his asylum application and testimony and subjective fear of returning to Haiti had been credited as true. The immigration judge then found Pierre-Paul removable under 8 U.S.C. § 1227(a)(2)(B)(i) based on his concession of removability and his two cocaine-possession convictions.[1]

         The immigration judge also denied Pierre-Paul's application for asylum and withholding of removal for two reasons. First, the immigration judge concluded that Pierre-Paul's proposed particularized social group-mentally ill Haitians who suffer from schizophrenia-was not legally cognizable. Alternatively, the immigration judge concluded that Pierre-Paul failed to demonstrate that he would be persecuted on account of being a mentally ill Haitian suffering from schizophrenia. As to Pierre-Paul's application for CAT relief, the immigration judge found that Pierre-Paul failed to demonstrate that he would be tortured by, or with the acquiescence of, the Haitian government.

         The immigration judge then denied cancellation of removal for two reasons. First, the immigration judge concluded that Pierre-Paul was statutorily ineligible. See 8 U.S.C. § 1229b(a)(2) (requiring seven years of continuous residence in the United States); Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999) (holding that continuous residence terminates on the date a qualifying offense is committed). Second, the immigration judge declined to cancel Pierre-Paul's removal as a matter of discretion after weighing the favorable and adverse factors. The immigration judge concluded that "the seriousness of [Pierre-Paul's] criminal history and violent tendencies" outweighed his "long-term residency, family ties, . . . employment history, . . . [and] his mental illness."

         The BIA dismissed Pierre-Paul's appeal on March 16, 2018. The BIA held that Pierre-Paul did not adequately appeal the CAT issue. The BIA affirmed the denial of asylum and withholding of removal because Pierre-Paul failed to establish a nexus between persecution and his proposed particular social group. The BIA did not decide whether Pierre-Paul's group was legally cognizable. Finally, as to the denial of cancellation of removal, the BIA expressly declined to address Pierre-Paul's statutory eligibility. Instead, the BIA conducted a de novo review, balanced the equities, and concluded that, as a matter of discretion, cancellation of removal was not warranted. In the BIA's view, Pierre-Paul's lengthy criminal history outweighed the positive factors.

         Pierre-Paul now petitions for our review on various grounds. First, he argues that the immigration court lacked jurisdiction because his original notice to appear was defective. He also challenges the denial of asylum, withholding of removal, and cancellation of removal. Finally, Pierre-Paul argues that the immigration judge violated his due process rights by failing to adhere to the procedural safeguards that were put in place after the competency hearing. We consider each of these issues in turn.

         II.

         We first turn to Pierre-Paul's argument that the immigration court lacked jurisdiction because his original notice to appear did not include the time and date of the initial hearing. Title 8 C.F.R. § 1003.14 states that the immigration court's "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court . . . ." In turn, "charging document" is defined as "the written instrument which initiates a proceeding" before the immigration court, including a notice to appear. 8 C.F.R. § 1003.13. The regulations further specify that "[i]n removal proceedings pursuant to [8 U.S.C. § 1229a], the [government] 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.

         Relying on the Supreme Court's holding in Pereira that "[a] putative notice to appear that fails to designate the specific time or place . . . is not a 'notice to appear under [8 U.S.C. §] 1229(a), '" Pierre-Paul argues that his notice to appear, which lacked the time and date of his proceeding, was not a valid charging document under 8 C.F.R. § 1003.14. Pereira v. Sessions, 138 S.Ct. 2105, 2113-14 (2018). In response, the government answers that the notice to appear was not defective under the regulations. Alternatively, the government relies on the BIA's post-Pereira decision in Bermudez-Cota to argue that, even if Pierre-Paul's notice to appear were defective, the immigration court complied with 8 U.S.C. § 1229(a) by adhering to a two-step process and sending a subsequent notice of hearing containing the time and date of the hearing. See Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 445-46 (BIA 2018).

         We reject Pierre-Paul's argument for three independent reasons.[2] First, Pierre-Paul's notice to appear was not defective. Second, assuming arguendo that the notice to appear were defective, the immigration court cured the defect by subsequently sending a notice of hearing that included the time and date of the hearing. Third, assuming arguendo that the notice to appear were defective and the defect could not be cured, 8 C.F.R. ยง ...


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