Ailaoh.org

Andrea A. SaenzBrooklyn Defender Services156 Pierrepont St.Brooklyn, NY 11201U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEWNEW YORK IMMIGRATION COURTNEW YORK, NEW YORKIn the Matter ofU., I.In removal proceedings File No.: A# 000-000-000Immigration Judge Oshea SpencerNext Hearing: August 19, 2019, 9amRESPONDENT’S RENEWED MOTION TO TERMINATE PROCEEDINGS U.S. DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEWVARICK STREET IMMIGRATION COURTNEW YORK, NYIn the Matter ofU., I. In removal proceedings File No.: A# 000 000 000RESPONDENT’S RENEWED MOTION TO TERMINATERespondent, I. U., through undersigned counsel, respectfully renews his motion to terminate of August 18, 2019. He preserves all arguments made in that motion, including that a) the putative Notice to Appear (“NTA”) filed by Immigration and Customs Enforcement (“ICE”) does not satisfy the statutory requirements of a Notice to Appear and thus the Court lacks jurisdiction over this case, see Pereira v. Sessions, 138 S.Ct. 2105 (2018); and b) there is no “clear and convincing evidence” of alienage in this matter, as the Form I-213 proffered by ICE contains no reliable evidence of alienage and ICE has filed nothing else in support of its burden.In addition, Respondent moves to terminate proceedings because the putative Notice to Appear filed by ICE in this case does not satisfy the regulatory requirements of 8 C.F.R. § 1003.14-15, which govern when jurisdiction vests in the Immigration Court. In particular, the Notice to Appear of November 17, 2017 does not meet the regulatory requirement the immigration court, including the court address, where the Notice to Appear is being filed. As a result, ICE has never filed a proper NTA with this Court and the Court lacks jurisdiction over this matter. See Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019) (holding that the regulations define when jurisdiction vests in the Immigration Court, that the “plain, exhaustive list of requirements in the jurisdictional regulations” describe what is necessary for an NTA to vest jurisdiction, and that the regulatory requirements had been met in Karingithi’s case); Banegas Gomez v. Barr, 922 F.3d 101, 111 (2d Cir. 2019) (“The Attorney General has promulgated regulations governing removal proceedings that?do?address when?jurisdiction?vests in the Immigration Court.”); Matter of Bermudez-Cota, 27 I&N Dec. 441, 445 (BIA 2018) (citing 8 C.F.R. § 1003.15 as the source of what information “must be contained in a notice to appear.”). As all of these decisions were issued after the original motion to terminate in this case was filed, this Court should consider this renewed motion, which both cases support. 8 C.F.R. § 1003.14, which is titled “Jurisdiction and commencement of proceedings,” states:(a) Jurisdiction vests, and proceedings before an?Immigration Judge?commence, when a?charging document?is filed with the Immigration Court by the?Service. The?charging document?must include a certificate showing?service?on the opposing party pursuant to?§ 1003.32?which indicates the Immigration Court in which the?charging document?is filed.?(emphasis added.) 8 C.F.R. § 1003.15(b), which is titled “Contents of the order to show cause and notice to appear and notification of change of address,” states:(b) The Order to Show Cause and Notice to Appear must also include the following information:….(6)?The address of the Immigration Court where the?Service?will file the Order to Show Cause and Notice to Appear[.]In Mr. U.’s case, the putative Notice to Appear of November 17, 2017 does not comply with either of these regulations. Its certificate of service, purporting to serve Mr. U. on April 19, 2018, does not indicate “the Immigration Court in which the charging document is filed,” meaning that jurisdiction never vested under 8 C.F.R. § 1003.14. In addition, the document violates 8 C.F.R. § 1003.15(b), as it does not contain any “address of the Immigration Court where the Service will file” the NTA. In the line for court address on page one, which has a blank titled “Complete Address of Immigration Court, including Room Number, if any,” the document says only “To be calendared and notice provided by the Office of the Immigration Court.” There is no agency or office called “Office of the Immigration Court,” so this notice is even more deficient than a blank line would be. In Karingithi, the Ninth Circuit held that the date and time of the first removal hearing was not a requirement for jurisdiction to vest in the immigration court because that information is not listed as a requirement in the “plain, exhaustive list of requirements” in the regulations that explicitly outline the court’s jurisdiction in 8 C.F.R. § 1003.13-15. 913 F.3d at 1160 (“The regulatory definition, not the one set forth in?§ 1229(a), governs the Immigration Court’s jurisdiction.”). In Bermudez-Cota, the Board similarly notes that 8 C.F.R. § 1003.14-15 control when jurisdiction vests with the immigration court and finds that those regulations do not “mandate” that the time and date of initial hearing be included. 27 I&N Dec. at 445. They do, however, mandate that the specific immigration court in which the NTA is filed be indicated.While Mr. U. preserves his argument that the statutory definition of an NTA is in fact relevant, the Court need not reach that issue, because the putative NTA in this case plainly fails to meet the regulatory requirements to vest jurisdiction in the court. Importantly, the requirements missing in this case cannot be “cured” by a hearing notice later sent out by an immigration court, because these requirements do not relate to the first hearing (as time and date information does), but where the case is filed, and thus, where jurisdiction is vested. In other words, these requirements are about jurisdiction, not notice.For these reasons, Mr. U. respectfully moves this court to terminate the removal proceedings.Dated: August 19, 2019Respectfully submitted, ___________________Andrea A. SaenzSupervising AttorneyBrooklyn Defender Services156 Pierrepont St.Brooklyn, NY 11201(718) 254-0700 (ext. 434)Counsel for Respondent TABEXHIBITMatter of – (San Francisco Immigration Court, July 8, 2019) (terminating proceedings where putative NTA lacked address of the immigration court in which the document was filed)Matter of – (San Francisco Immigration Court, July 9, 2019) (terminating proceedings where putative NTA lacked address of the immigration court in which the document was filed)Matter of – (San Francisco Immigration Court, July 11, 2019) (terminating proceedings where putative NTA lacked address of the immigration court in which the document was filed)Matter of – (San Francisco Immigration Court, July 18, 2019) (terminating proceedings where putative NTA lacked address of the immigration court in which the document was filed)UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEWNEW YORK IMMIGRATION COURTNEW YORK, NYIn the Matter of: I. U.A Number: 000 000 000ORDER OF THE IMMIGRATION JUDGEUpon consideration of the Respondent’s Motion to Terminate, it is HEREBY ORDERED that the motion be GRANTED / DENIED because:DHS does not oppose the motion.The respondent does not oppose the motion.A response to the motion has not been filed with the court.Good cause has been established for the motion.The court agrees with the reasons stated in the opposition to the motion.The motion is untimely per ______________________.Other:Deadlines:The application(s) for relief must be filed by _____________________________.The respondent must comply with DHS biometrics instructions by ___________.____________________Date Hon. Oshea SpencerImmigration JudgeCertificate of ServiceThis document was served by: MailPersonal ServiceTo: AlienAlien c/o Custodial Officer Alien’s Atty/RepDHSDate: By: Court Staff SEQ CHAPTER \h \r 1U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEWNEW YORK IMMIGRATION COURTNEW YORK, NYIn the Matter ofU., I. In Custody Proceedings File No.: A# 000 000 000CERTIFICATE OF SERVICEI, Andrea Saenz, hereby certify that I served a copy of Respondent’s Renewed Motion to Terminate on the Assistant Chief Counsel for the Immigration and Customs Enforcement, 26 Federal Plaza, Rm 1130, New York, NY 10014, by hand delivery.Dated: August 9, 2018_____________________________New York, NYAndrea Saenz Brooklyn Defender Services180 Livingston Street, 3rd FloorBrooklyn, New York 11201(718) 254-0700 ext. 199 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download