JORDANY PIERRE-PAUL, also known as Yves Pierre, also known as Yves Paul, Petitioner,
WILLIAM P. BARR, U.S. ATTORNEY GENERAL, Respondent.
Petitions for Review of Order of the Board of Immigration
Appeals BIA No. A076 459 138
SMITH, WIENER, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, CIRCUIT JUDGE
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.
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.
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."
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.
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.
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
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.
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
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
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.
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.
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).
reject Pierre-Paul's argument for three independent
reasons. 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. §