MARINA ALEXANDROVICH ESQ., PC
Marina Alexandrovich, Attorney at Law
405 W. Southern Ave., Ste. 1-24,  Tempe, AZ 85282

Ph. (623)466-9097
Fax(480) 718-8616
E-mail: atty@eloyimmigration.com

URL: www.eloyimmigration.com

Attorney for Respondent

EOIR # UK832232

 

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
U.S. IMMIGRATION COURT
Phoenix, ARIZONA

 

In the matter of: --------------------------   Non-detained Respondent, In Removal Proceedings

) ) ) ) ) ) ) ) ) ) ) )

Case No.: A#----------------             Hearing Type:  INDIVIDUAL/MERITS Date:                April --, 20-- Time:                9:00 AM IJ:                  Hon. John W. Richardson

 

 

Respondent’s Motion to Terminate

under 8 USC §1229(a)(1),

Matter of Rosales Vargas, 27 I&N Dec.745(BIA 2020)

and

Aguilar Fermin v. Barr, No. 18-70855 (9^th Cir. 2020)

TABLE OF CONTENTS

1. INTRODUCTION …………………………………………………….
2. STATEMENT OF THE FACTS ………………………………………

• STATEMENT OF THE CASE ………………………………………..

1. LEGAL STANDARD FOR TERMINATION OF PROCEEDINGS ….
2. ARGUMENT
3. CONCLUSION ……………………………………………….

• CERTIFICATE OF SERVICE ……………………………….

 

 

1. INTRODUCTION

In light of the more recent precedents, Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019) is no longer a good law with respect of the federal regulations 8 CFR §1003 being jurisdictional, as the BIA and the Ninth Circuit held the regulations to be non-jurisdictional. Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020), Aguilar Fermin v. Barr, No. 18-70855 (9^th Cir. 2020)

In reliance on Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020), Aguilar Fermin v. Barr, No. 18-70855 (9^th Cir. 2020), Respondent, through Counsel, respectfully moves to terminate these removal proceedings for the reasons set forth infra, including

• Lack of initiation of the removal proceedings pursuant to 8 USC §1229(a)(1),
• Lack of subject-matter jurisdiction as the agency regulations, which are under the current BIA precedent and the fresh 9^th Circuit precedent are non-jurisdictional claim-processing rules otherwise known as regulations (Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020), Aguilar Fermin v. Barr, 18-70855 (9^th Cir. 2020) have not conferred the subject-matter jurisdiction upon the Immigration Judge.

The Federal Rules of Civil Procedure provide that “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Def. R. Civ. P. 12(h)(3).

 

 

1. STATEMENT OF THE FACTS

• STATEMENT OF THE CASE

The Federal Rules of Civil Procedure provide that “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Def. R. Civ. P. 12(h)(3).

It is an “age-old rule that a court may not in any case, even in the interest of justice, extend its jurisdiction where none exists.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988). Therefore, the matter commenced without the subject-matter jurisdiction must be terminated at once

The commencement of a matter without the subject-matter jurisdiction is incurable, because where the subject-matter was not conferred on a court it cannot be cured by amendment. Cf. Mustafa v. Thompson, 2013 WL 776217 (D.N.J. Feb. 28, 2013) (a pleading that fails to invoke jurisdiction cannot be cured by amendment). There is no justification for acting outside of jurisdiction and it is an “age-old rule that a court may not in any case, even in the interest of justice, extend its jurisdiction where none exists.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988). The administrative order that is a fruit of the unlawfully conducted proceedings is void, as under the Supreme Court precedent when a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828).

 

1. LEGAL STANDARD FOR TERMINATION OF PROCEEDINGS

It is fundamental that a court must not entertain a matter over which the court lacks subject-matter jurisdiction. Knowingly entertaining a matter without subject matter-jurisdiction constitutes usurping jurisdiction, which is a treason of the Constitution. Cohen v. Virginia, 19 U.S. 6 Wheat 264 (1821). When a court realizes that it has a matter without subject-matter jurisdiction, the matter must be dismissed at once on the general principal of not engaging in or not perpetuating the act of usurping jurisdiction, trespass, and treason.

Only the Immigration Judge may terminate removal proceedings upon request by either party. See Matter of G-N-C, 22 I&N Dec. 281 (BIA 1988).

The Immigration Judge may terminate when the DHS failed to prove removability by clear and convincing evidence (Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012), Matter of Lopez-Barrios, 20 I&N Dec. 203, 204 (1990), United States Department of Justice Immigration Judge Benchbook, 4^th Ed., V.2, p.605), because it is the DHS’s burden to prove removability. Woodby v INS, 385 U.S. 276, 8 CFR §240.8(a). “A respondent charged with deportability shall be found to be removable if the Service proves by clear and convincing evidence that the respondent is deportable as charged.” 8 CFR §240.8(a).

While the DHS motion to terminate is limited to the same grounds as set forth in the regulation 8 CFR §239.2(c) for dismissal of the Notice to Appeal (Matter of W-C-B-, 24 I&B Dec. 118, 122 (BIA 2007)), no such limitations apply to aliens in proceedings.

The BIA has jurisdiction to terminate removal proceedings. Matter of M-D-, 24 I&N Dec. 138, 139 (BIA 2007), Matter of Guevara, 20 I&N Dec. 238 (BIA 1990, 1991), Matter of Dobere, 20 188 (BIA 1990)). The BIA does terminate removal proceedings on interlocutory appeal where the IJ improperly denied to terminate. Matter of Mei Jiang, A#089-173-687, December 21, 2017 (BIA unpublished). (Attachment B)

 

1. ARGUMENT
2. This case must be terminated because the removal proceedings never initiated under 8 USC §1229(a)(1).

The initiation of the removal proceedings is governed by Section 239(a) of the Immigration and Nationality Act codified as 8 USC §1229(a)(1).

Respondent respectfully argues that removal proceedings against him have never been initiated pursuant to 8 USC §1229(a)(1), were conducted without any statutory authority and contrary to 8 USC §1229(a)(1). The Immigration Judge assumed jurisdiction vested in him solely by the agency regulations 8 CFR §1003.14 notwithstanding the fact that the removal proceedings against Petitioner did not initiate pursuant to 8 USC §1229(a)(1). The Immigration Court conducted the proceedings commenced before it solely under the agency regulations 8 CFR §1003.14 notwithstanding the fact that the removal proceedings against Petitioner did not initiate pursuant to 8 USC §1229(a)(1).

Initiation of removal proceedings is governed by the federal statute 8 USC §1229(a) entitled “Initiation of Removal Proceedings.” The title unequivocally indicates that the statute is on point of initiation of removal proceedings. It is obvious that when the statute describes initiation of removal proceedings it implies that the removal proceedings must be initiated before they proceed.

The statute 8 USC §1229(a) defines[1] the legal term “Notice to appear.” See 8 USC 1229(a)(1). The first subsection of the statute is titled “Notice to appear.” See 8 USC §1229(a). The definition of the legal term “Notice to appear” in the first subsection and in the first sentence of that subsection clearly indicates that the term is important and meant to be used in context of initiation of removal proceedings. It is easy to calculate that the definition of the term “Notice to appear” given in 8 USC §1229(a)(1) expressly specifies eleven (11) pieces of information (set forth in the A through G subsections) that must be included in the written notice to the alien to initiate the removal proceedings. See 8 USC §1229(a)(1). The definition specifically addresses practicability of its own implementation providing as follows: “In removal proceedings under section 1229a of this title, written notice <…> 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) …” 8 USC §1229(a)(1) (Emphasis added in bold.) It is impossible not to notice that Congress expressly addressed practicability of the legislation it passed. The statutory definition of the term “Notice to appear” is large (contains 265 words), detailed (specifies eleven (11) required pieces of information that must be contained in the notice), and provides for the single exception with practicability in mind. Importantly, the definition does not provide any exceptions to inclusion of the enumerated eleven (11) pieces of information in the notice. Congress clearly intended that the eleven (11) pieces of information be included in the notice to the alien without any exceptions under any circumstances whatsoever. When Congress intended to create an exception to address practicability, it did so. Congress did not intent to permit under any circumstances that any of the eleven (11) pieces of information to be omitted in the notice to the alien, even if such a rigid provision is impracticable. The intent of Congress is crystal clear from the direct statutory language.

It is settled in law that a statutory provision must be read in context of other provisions of the same statute. Immediately after defining the term “Notice to appear” the statute 8 USC §1229(a) addresses changes in time or place of proceedings in the subsection titled “Notice of change in time or place of proceedings.” See 8 USC §1229(a)(2). The word “change” in the title implies that time and place of proceedings were already set, and subsequently changed. Importantly, the statute 8 USC §1229(a)(2) does not provide an option of omitting time or place of proceedings in the “Notice to appear” even if the missing information is supplements through a subsequent “Notice of change in time or place of proceedings.”

The statute of the same title codified as 8 USC §1229a and entitled “Removal Proceedings” provides that “[a]ny alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to the alien or the alien’s counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided …” 8 USC §1229a. (Emphasis added in bold.) It is clear from the direct statutory language that specifically the removal proceedings, as opposed to unspecified proceedings, are being addressed in the statute. The words “the notice was so provided” is a clear reference to the following language of the neighboring section of the same title,

“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.”

See 8 USC §1229(a)(1). It is abundantly clear that the words “so provided” include provision mandating that “the time and place at which the proceedings will be held” be in the “Notice to appear.” See 8 USC §1229(a)(1)(G)(i).

The direct statutory language of 8 USC §1229(a) and §1229a is devoid of use the terms “jurisdiction” or “commencement.” The statute describes initiation of removal proceedings (as opposed to vesting of jurisdiction or commencement of a proceeding) and defines the notice (referred to as a “Notice to appear”) by service of which on the alien the removal proceedings are being initiated. The statute does not provide any alternative to service of a “Notice to appear” on the alien as a legal vehicle for initiation of the removal proceedings. Importantly, Congress did not make initiation of the removal proceedings subject to Attorney General’s regulation. 8 USC §1229(a). In contrast with initiation of the removal proceedings, Congress made some parts of conduct of the removal proceedings subject to Attorney General’s regulation. §1229a.

Nothing in the statutory language of 8 USC §1229(a) or §1229a states or implies that the removal proceedings may start without being initiated as described in 8 USC §1229(a)(1). Nothing in the statutory language of 8 USC §1229(a) or §1229a states or implies that vesting of jurisdiction or commencement of proceedings before an Immigration Judge is an alternative way of initiation of the removal proceedings.

The statute 8 USC §1229(a)(1) is clear[2] and free from any ambiguity[3].

It is abundantly clear, that this case did not initiate under 8 USC 1229(a)(1), therefore the statute 8 USC §1229(a)(1) did not confer the subject-matter jurisdiction from Congress to the Immigration Court.

 

1. The instant proceedings before the IJ commenced solely under the non-jurisdictional regulations and jurisdiction (but not the subject-matter jurisdiction) vested solely under the non-jurisdictional regulations. Non-jurisdictional regulations do not vest the subject-matter jurisdiction.

 

Attorney General promulgated regulations governing vesting of jurisdiction and commencement of proceedings before an Immigration Judge. It is settled in the BIA and Ninth Circuit precedents that vesting of jurisdiction and commencement of proceedings before an Immigration Judge are governed by the agency regulations alone, not by the statute 8 USC §1229. Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020); Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019); Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020).

What is the relationship between the statutory initiation of the removal proceedings on one side and the regulatory vesting of jurisdiction and commencement of proceedings before an Immigration Judge on the other side?

The regulation titled “Jurisdiction and commencement of proceedings” provides as follows: “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the  Service.” 8 C.F.R. § 1003.14(a). Notably, this regulation does not specify the type of proceedings that commence by filing of a charging document.

The term “charging document” is defined in the neighboring section of the regulations as follows: “Charging document means the written instrument which initiates a proceeding before an Immigration Judge. For proceedings initiated prior to April 1, 1997, these documents include an Order to Show Cause, a Notice to Applicant for Admission Detained for Hearing before  Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien. For proceedings initiated after April 1, 1997, these documents include a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention to Rescind and Request for Hearing by Alien.” 8 C.F.R. § 1003.13. The term “charging document” is defined as “the written instrument which initiates a proceeding before an Immigration Judge.”

The regulation 8 CFR §1003.13 expressly identifies “a Notice to Appear” as one of several possible charging documents “[f]or proceedings initiated after April 1, 1997.” Under the Ninth Circuit precedent, the words “ a Notice to Appear” – under the Ninth Circuit precedent is not the same as the term “Notice to appear” defined in 8 USC §1229(a)(1). Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019) at 1161. The Ninth Circuit held in the precedential opinion that “…[T]he regulations, not § 1229(a), define when jurisdiction vests. Section 1229 says nothing about the Immigration Court's jurisdiction. And for their part, the regulations make no reference to § 1229(a)'s definition of a "notice to appear." See generally 8 C.F.R. §§ 1003.13-1003.14.” Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019) at 1161.

The word “initiates” trice used in 8 CFR §1003.13 may be – depending on interpretation - a link between the regulations on “Jurisdiction and commencement of proceedings” and the statute 8 USC §1229 on “Initiation of Removal Proceedings.” The regulations do not link the word “initiate” to 8 USC §1229(a)(1). Utilizing the same logic as used by the Ninth Circuit to find that the words “Notice to Appear” in the regulations is not the same as the words “Notice to appear” in the statute, one arrives to the conclusion that the word “initiate” in the regulations is not the same as the word “initiate” in the statute. The regulations, therefore, do not govern initiation of the removal proceedings. (If one attempts to reads the word “initiate” in the regulations as meaning the same as in the statute, t would compel the result that the regulations 8 CFR §1003.13 directly override the statute 8 USC §1229(a)(1), which is nonsensical. Notably, at this time, there is no authority holding that the term “initiated” in the 8 CFR §1003.13 is the same as the term “initiated” in 8 USC §1229(a)(1).)

The regulations 8 CFR §1003.13, 14 govern commencement of unspecified proceedings before an Immigration Judge.” The regulation 8 CFR §1003.14 on “Jurisdiction and commencement of proceedings” does not purport to relate specifically to removal proceedings, and neither does the regulation 8 CFR §1003.13. In other words, the regulations 8 CFR §1003.13, 14 – it appears - do not regulate implementation of the statute 8 USC §1229(a)(1), because they address different matters then addressed in 8 USC §1229(a)(1). It is, however, settled in law that a section of regulations must be read in context of adjacent sections in the same regulations. The regulation 8 C.F.R. § 1003.18(b) governs specifically removal proceedings under 8 USC §1229 and provides as follows:  “In removal proceedings pursuant to section 240 of the Act[4], the Service shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. If that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing.” 8 C.F.R. § 1003.18(b).

When the statute 8 USC §1229 and the regulations 8 CFR §1003.13, 14 and 18(b) are read together, the first observation is that the regulations 8 CFR §1003.18(b) in their direct language expressly refer to the removal proceedings under the statute codified as 8 USC §1229. The second observation is that, the Ninth Circuit precedent holds that the Notice to Appear in the regulations 8 CFR §1003.13, 14 adjacent to 8 CFR §1003.18(b) is not the term defined by 8 USC §1229(a)(1). See Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019) at 1161. These observations necessarily compel conclusion that Notice to Appear in 8 CFR §1003.18(b) is not the “Notice to appear” defined in 8 USC §1229(a)(1). Thus, both 8 USC §1229 and 8 CFR §1003.18(b) govern the removal proceedings under 8 USC §1229, both use the term “Notice to Appear,” but – anomalously - define this key legal term differently.

Respondent respectfully argues that reconciliation of the statutory and regulatory governance of the removal proceedings under 8 USC §1229 is only possible, if the clear distinction is made between initiation of the removal proceedings on one side and vesting of jurisdiction and commencement of proceedings before an Immigration Judge on the other side. The statute 8 USC §1229 governs initiation of the removal proceedings. The regulations alone – as held in Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019) at 1161 - govern vesting of jurisdiction and commencement of proceedings before an Immigration Judge.  Initiation is different from vesting of jurisdiction, and it is different from commencement of proceedings before an Immigration Judge. The mere fact that the BIA and Ninth Circuit found that the “Notice to appear” defined in 8 USC §1229(a)(1) is not the “Notice to Appear” vesting jurisdiction with an Immigration Court (Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020); Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019); Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020)), is an indication that vesting of jurisdiction and commencement of proceeding before an Immigration Judge are different from the statutory initiation of the removal proceedings.

In the instant case the Notice to Appear in the record does not match the statutory definition of the term “Notice to appear” given in 8 USC §1229(a)(1), therefore, the removal proceedings against Petitioner did not initiate. The Notice to Appear in the record, even though not a match to the regulatory definition, under the BIA and Ninth Circuit precedents, vested jurisdiction (but not necessarily subject-matter jurisdiction) and commenced proceedings before the Immigration Judge (see Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020); Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019); Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020)), but did so without initiating removal proceedings under 8 USC §1229(a)(1).

Respondent was processed in the Immigration Court, because the Attorney General, through regulations 8 CFR §1003.18(b), created the way of conducting the removal proceedings without initiating them according to 8 USC §1229(a)(1). But regulatory commencement of proceedings without statutory initiation of the removal proceedings does not necessarily confer the subject-matter jurisdiction to conduct the removal proceedings.

Under the previous Ninth Circuit precedent, Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019), the regulations were jurisdictional. It was arguably the case, that the jurisdictional regulations conferred the subject-matter jurisdiction of the Immigration Court, even when the statute did not.

In January of 2020, the Board of Immigration Appeals interpreted the regulations in the way that the word “jurisdiction” in the regulations does not mean the subject-matter jurisdiction. Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020). In May of 2020, the Ninth Circuit agreed with the Board’s interpretation of its regulations. Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020). That means that vesting of jurisdiction and commencement of the removal proceedings before the Immigration Judge solely under the agency regulations does not mean that the Immigration Court assumed the subject-matter jurisdiction.

Respondent argues that an Immigration Judge may not assume subject matter-jurisdiction in the removal proceedings, unless empowered to do so under the statue 8 USC §1229(a)(1) through initiation of the removal proceedings. The previous Ninth Circuit precedent Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019) interpreted the agency regulations as jurisdictional, which arguably created the way to confer the subject-matter jurisdiction from the AG to the Immigration Court. Respondent does not need to dispute the Karingithi interpretation of the regulations, because the Ninth Circuit recently in Fermin agreed with the BIA’s interpretation (Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020)) given in Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020) that the regulations are not jurisdictional.

Under Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020) and Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020) is abundantly clear that non-jurisdictional regulations certainly did not confer the subject-matter jurisdiction on the Immigration Court. It is argued supra, that the subject-matter jurisdiction did not confer on the Immigration Court under the statute, as the statute 8 USC §1229(a)(1) on initiation of the removal proceedings was not used to commence the proceedings solely under the regulations. With no statute and no jurisdictional regulations conferring the subject-matter on the Immigration Court, the Immigration Court is without the subject-matter.

 

Application of Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020) and Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020) to the instant case compels conclusion that the Immigration Judge usurped subject-matter jurisdiction. Such situation developed through Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020) and Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020) abrogating the prior Ninth Circuit precedent holding the regulations jurisdictional.

Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020) and Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020) are good laws, therefore, the removal proceedings must be swiftly terminated as this Honorable Court is without the subject-matter jurisdiction. The IJ may not ignore the valid precedent of the BIA, because Supreme Court held that, “[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). The IJ may not ignore the Ninth Circuit precedent, as departure from precedent is a reversible error under Virk v. INS, 295 F.3d 1055 (9^th Cir. 2002).

The Immigration Judge should terminate when the DHS failed to prove removability by clear and convincing evidence. Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012), Matter of Lopez-Barrios, 20 I&N Dec. 203, 204 (1990), United States Department of Justice Immigration Judge Benchbook, 4^th Ed., V.2, p.605. In the instant case, the DHS is precluded from proving removability as the removal proceedings did not initiate under the one and only legal authority, specifically the statute 8 USC §1229(a)(1), governing initiation of the removal proceedings.

 

1. CONCLUSION

Respondent presented legal arguments in support of terminating these removal proceedings for

(1) lack of the initiation of the removal proceedings under the sole authority on such initiation, which is the statute 8 USC §1229(a)(1), and

(2) lack of the subject-matter jurisdiction, which had no source from which it could have possibly conferred on the Immigration Court, since the previously jurisdictional regulations Karingithi v. Whitaker, 913 F.3d 1158 (9^th Cir. 2019) have been held no-jurisdictional in the recent precedents of both the BIA and the Ninth Circuit, Matter of Rosales Vargas, 27 I&N Dec. 745 (BIA 2020), Aguilar Fermin v Barr, No. 18-70855 (9^th Cir. 2020).

WHEREFORE, the removal proceedings against this Respondent should be terminated.

Respectfully submitted on __________________, 2020

___________________________

Marina Alexandrovich, Esq.

ATTORNEY FOR RESPONDENT

 

• CERTIFICATE OF SERVICE

 

I hereby certify that a true copy of the foregoing

Respondent’s Motion to Terminate

under 8 USC §1229(a)(1),

Matter of Rosales Vargas, 27 I&N Dec.745(BIA 2020)

and

Aguilar Fermin v. Barr, No. 18-70855 (9^th Cir. 2020)

was served onto the DHS via the e-mail to

OPLA-PHO-eService@ice.dhs.gov

 

And

by USPS first class mail onto:

DHS/ICE Office of Chief Counsel
U.S. Immigration and Customs Enforcement
2035 N Central Avenue, 2^nd floor
Phoenix, AZ 85012

on _________________, 2020.

By: _____________________________

Marina Alexandrovich, Esq.

ATTORNEY FOR RESPONDENT

 

• ATTACHMENTS

 

MARINA ALEXANDROVICH, ESQ., PC

Marina Alexandrovich, Esq.

405 W. Southern Ave., Ste. 1-24

Tempe, AZ 85282

Ph. (480) 377-1111

Fax (480) 718-8616

E-mail: atty@eloyimmigration.com

URL: www.eloyimmigration.com

Attorney for Respondent

EOIR # UK832232

 

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

U.S. IMMIGRATION COURT

PHOENIX, ARIZONA

 

In the Matter of:                                              )           In Removal Proceedings

)

)

-------------------------------                                   )           Hearing:            INDIVIDUAL

)           Hearing Date:   April --, 20--

A-------------------                                             )           Time:                9:00 AM

Respondent                                                     )           Judge:               Hon. John W. Richardson

)

 

ORDER OF THE IMMIGRATION JUDGE

 

Upon consideration of the following motion

 

RESPONDENT’S POST-BERMUDEZ-COTA

 MOTION TO TERMINATE UNDER INA §239(a), PEREIRA AND MACLEOD

 

it is HEREBY ORDERED that the said motion be

 

GRANTED  /  DENIED / DEFERRED .

 

 

Date:_____________

By: ___________________________

IMMIGRATION JUDGE

 

 

Certificate of Service

 

This document was served by            [  ] mail                     [  ] personal service

To [  ] Alien   [  ] Alien c/o Custodial Officer   [  ] Alien's Atty/Rep   [   ] DHS

---

[1] Supreme Court rejected the view that 8 USC §1229(a) is not definitive and observed that “Section 1229(a) <…> does speak in definitional terms, at least with respect to the "time and place at which the proceedings will be held."” Pereira v. Sessions, 138 S. Ct. 2105 (2018) at 2117.

 

[2] Supreme Court observed that 8 USC §1229(a) is clear and notes as follows, “[a]t the end of the day, given the clarity of the plain language, we apply the statute as it is written.” Pereira v. Sessions, 138 S. Ct. 2105 (2018) at 2119-20 (Internal quotations omitted.)

 

[3] Supreme Court observed that “Straining to inject ambiguity into the statute, the Government and the dissent advance several overlapping arguments. None is persuasive.” Pereira v. Sessions, 138 S. Ct. 2105 (2018) at 2117.

 

 

[4] Codified as 8 USC §1229.