Israel Amador-Morales v. Merrick B. Garland

United States Court of Appeals
For the Eighth Circuit
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No. 22-3653
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Israel Amador-Morales
Petitioner
v.
Merrick B. Garland
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 17, 2023
Filed: February 27, 2024
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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BENTON, Circuit Judge.
Israel Amador-Morales petitions for review of the denial of his motion to
reopen by the Board of Immigration Appeals. This court denies the petition.
Morales, a citizen of Mexico, entered the United States without inspection in
2003. Seven years later, the Department of Homeland Security sought to remove
him to Mexico. He agreed to voluntary departure, lawfully departing in November

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2012. He returned to the United States without inspection in January 2013. A year
and a half later, DHS again sought to remove him. Morales received a Notice to
Appear (NTA) alleging removability as an alien present in the United States without
being admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). The NTA
omitted the date and time of his hearing.
On November 22, 2016, Morales, with counsel, admitted the allegations in
the NTA and conceded removability. The Immigration Judge then asked counsel
if he wanted “some attorney prep time” to “investigate the U-visa” as a form of
relief from removal. Counsel said he would. For the next two years, at four separate
hearings, his counsel and the IJ discussed avenues for relief from removal
including: a U-Visa application, voluntary departure, and cancellation of removal
for non-lawful permanent residents. On February 25, 2019, noting Pereira v.
Sessions, 138 S. Ct. 2105 (2018), Morales amended his pleading to withdraw both
his admission to the allegations and concession of removability. He also moved to
terminate the proceedings.
A month later, the IJ, in a written decision, denied the motion to terminate
proceedings, granted DHS’s motion to pretermit his application for cancellation of
removal, and ordered him removed to Mexico. Morales appealed. On July 1, 2022,
the BIA dismissed the appeal. On November 25, 2022, the BIA denied the motion
to reopen.
Morales asks this court to reverse and remand to the BIA. He argues it: (1)
should have granted his motion to reopen; (2) erred in ruling that his objection to
the NTA was untimely; and (3) misconstrued his motion as asking it to “compel”
DHS to exercise prosecutorial discretion.
The court reviews the BIA’s denial of a motion to reopen for abuse of
discretion. Mshihiri v. Holder, 753 F.3d 785, 789 (8th Cir. 2014), citing Quinteros
v. Holder, 707 F.3d 1006, 1009 (8th Cir. 2013). “The BIA abuses its discretion
where it gives no rational explanation for its decision, departs from its established

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policies without explanation, relies on impermissible factors or legal error, or
ignores or distorts the record evidence.” Id.
I.
After the BIA dismissed his appeal but before it denied his motion to reopen,
it decided Matter of Fernandes, 28 I. & N. Dec. 605 (BIA 2022). According to
Morales, this was an intervening precedent about the BIA’s claim-processing
principles. An intervening change in the law that “pertains to the rules of the
proceeding at which deportation was ordered” may justify reopening after the fact.
INS v. Doherty, 502 U.S. 314, 325 (1992).
Morales believes that Fernandes is an intervening precedent based on his
view of the prior cases, especially Matter of Rosales Vargas, 27 I. & N. Dec. 745
(BIA 2020); Matter of Arambula Bravo, 28 I. & N. Dec. 388 (BIA 2021); Matter
of Nchifor, 28 I. & N. Dec. 585 (BIA 2022).
The Rosales Vargas case explains that an NTA lacking the address of the
immigration court still vests it with subject matter jurisdiction. Vargas, 27 I. & N.
Dec. at 745. The immigration court also has subject matter jurisdiction if the NTA
lacks a certificate of service. Id. “Informed by the principles of administrative law
and considering the regulation in context,” “jurisdiction” in 8 C.F.R. § 1003.14(a)
is a claim-processing rule. Id. at 752. The BIA added that a “claim-processing rule
may be challenged in a timely manner.” Id. at 753.
The Arambula Bravo case says that the “absence of information required by
section 239(a) is not a jurisdictional defect.” Arambula Bravo, 28 I. & N. Dec. at
391, interpreting 8 U.S.C. § 1229(a). In Arambula, whether section 239(a) is “a
mandatory claims-processing rule” was raised by amicus. Id. at 392 n.3. However,
because the noncitizen did not advance “an argument concerning section 239(a) as
a claims-processing rule, and neither timely objected to the NTA nor claimed any
prejudice caused by its omissions,” the BIA chose to “leave further consideration

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of section 239(a) as a claims-processing rule for another day.” Id. (citations
omitted).
The Nchifor case concludes that, if a noncitizen first objects to a deficient
NTA in a motion to reopen, the noncitizen forfeits that objection. Matter of
Nchifor, 28 I. & N. Dec. at 586-89.
Discussing these three cases, Fernandes concludes that “the time and place
requirement in section 239(a)(1) is a claim-processing rule, not a jurisdictional
requirement.” Fernandes, 28 I. & N. Dec. at 608. Most importantly, the BIA ruled
that it is following its precedent. The BIA chose to “adhere to our view in Matter
of Arambula Bravo” that “section 239(a)(1) is not a jurisdictional provision.” Id.
at 607. See also id. at 608, 612 (also citing Nchifor, 28 I. & N. Dec. at 588; Vargas,
27 I. & N. Dec. at 753-54). Fernandes does not identify specific BIA decisions that
it overrules or supersedes about timeliness.
As a claim-processing requirement, section 239(a)(1) is subject to waiver and
forfeiture. Id. at 609. If a noncitizen “does not raise an objection to a defect in the
notice to appear in a timely manner, such an objection is waived or forfeited.” Id.,
citing Pierre-Paul v. Barr, 930 F.3d 684, 693 (5th Cir. 2019). “This guideline
would also allow DHS an opportunity to remedy the noncompliant notice to appear
before any substantive matters are discussed or determined[.]” Id. at 610.
Contrary to Morales’s view—which echoes the dissent in Fernandes that
focused on Rosales Vargas—Fernandes followed prior BIA decisions and was not
an intervening precedent. The BIA properly declared that Fernandes was not an
intervening change in the law that would excuse his forfeiture of an objection to the
NTA.
II.
Morales argues that because the IJ mentioned that he had retracted his
admission and concession of the charge of removal and proceeded to resolve

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removability based on the evidence, the IJ accepted the retraction as a timely
objection to the NTA. Morales emphasizes that Fernandes says that an objection
is timely if it is raised before the closing of pleadings. Id. at 610. Citing the
undisputed facts, he reasons that because the IJ: (1) scheduled later hearings, (2)
did not say explicitly on the record that his removability was established, and (3)
had not deemed him removable, the pleadings were not closed. On appeal, the BIA
did not address this issue. It ruled on the merits, citing 8 C.F.R. § 1240.10 (the
regulation about removal hearings).
In removal proceedings, the immigration judge first determines whether the
noncitizen is removable from the United States. If the noncitizen is not removable,
the proceedings end. If a noncitizen admits the NTA’s allegations and concedes
removability, the IJ “may determine that the removability as charged has been
established[.]” 8 C.F.R § 1240.10(c). If the IJ does not accept the admission and
concession, the IJ “shall direct a hearing on the issues.” Id. The immigration
proceedings then proceed to the relief phase. See Matovski v. Gonzales, 492 F.3d
722, 727 (6th Cir. 2007) (“Removal proceedings against an alien are divided into
two phases (1) determination of the alien’s removability; and (2) consideration of
applications for discretionary relief.”).
In his original appearance, Morales, with counsel, admitted the NTA’s
allegations, and conceded the sole charge of removability. Fernandes recognizes
the “guideline” that “closing of pleadings” occurs when “substantive matters are
discussed or determined[.]” Fernandes, 28 I. & N. Dec. at 610. After Morales’s
admission and concession, the IJ scheduled four hearings to discuss the substantive
matters for his applications for relief from removal, especially his U-Visa
eligibility. Morales’s case lasted nearly two years in the relief phase where
“substantive matters were discussed or determined.” Id. Thus, pleadings had
closed before his retraction.
Morales asserts: “Because 8 C.F.R. § 1240.10(d) requires a decision
sustaining the charge of removability as the last act that closes the pleading process,

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the pleadings here weren’t closed.” To the contrary, that regulation does not require
an explicit statement from the immigration judge to “determine that removability
as charged has been established by the admissions of the [noncitizen.]” 8 C.F.R. §
1240.10 (c).
Morales also reasons that since DHS can amend or substitute the allegations
or charges in an NTA at any time, pleadings are not closed until the conclusion of
the proceeding. True, the regulation provides that if DHS adds or substitutes an
allegation or charge, the “alien may be given a reasonable continuance to respond
to the additional factual allegations and charges[.]” 8 C.F.R. § 1003.30. In this
case, DHS did not amend or substitute allegations, so Morales’s reasoning does not
apply.
Through counsel, Morales admitted to DHS’s allegations and conceded
removability. “Absent egregious circumstances,” a distinct and formal admission
before, during, or even after a proceeding by an attorney acting in his professional
capacity binds the client as a judicial admission. Matter of Velasquez, 19 I. & N.
Dec. 377, 382 (BIA 1986). The egregious circumstances are admissions and
concessions that were “the result of unreasonable professional judgment” or “were
so unfair that they have produced an unjust result.” Id. at 383. Because Fernandes
was not a change in law, it is not an egregious circumstance permitting the
withdrawal of the admission and concession. Morales has not alleged ineffective
assistance of counsel. There is a strong presumption that a counsel’s decision to
concede deportability is a reasonable tactical decision. Id. at 382. Morales presents
no evidence to overcome the presumption. Morales’s objections to the NTA
occurred after the closing of pleadings, and thus were untimely.
III.
In his motion to reopen, Morales requested a remand to allow the possibility
of a negotiated resolution with the DHS. He claims that the BIA distorted his
request when it stated:

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The respondent also seeks remand to pursue prosecutorial
discretion with the DHS. However, the Board lacks the
authority to compel DHS to take such action. See
generally Matter of Quintero, 18 I&N Dec. 348, 349-50
(BIA 1982) (explaining prosecutorial discretion is a
function of DHS). Our decision does not affect the
respondent’s ability to separately pursue prosecutorial
discretion with DHS.
The BIA’s “compel DHS” response is, in the Government’s words,
“unartful.” However, as both parties agree, the BIA lacks this authority over the
DHS. Because Morales could still pursue prosecutorial discretion, the BIA did not
abuse its discretion in denying a remand.
* * * * * * *
The petition for review is denied.
KELLY, Circuit Judge, dissenting.
In Matter of Fernandes, the BIA held for the first time that the requirement in
§ 239(a)(1) that the NTA specify the time and place of proceedings “is a claim-
processing rule, not a jurisdictional requirement.” 28 I. & N. Dec. 605, 608 (BIA
2022). The BIA also said that it “will generally consider an objection to a
noncompliant notice to appear to be timely if it is raised prior to the closing of
pleadings before the Immigration Judge.” Id. at 610–11 (emphasis added). Relying
on this language, the BIA concluded Amador-Morales’s objection “was untimely
because he filed a motion to terminate [his removal proceedings] based on the
missing time and date information after his pleadings were taken by the Immigration
Judge.” Thus, according to the BIA, his objection was waived.
But Fernandes did not define “the closing of pleadings.” See id. So, we do not
know how to determine when pleadings close in a case like this one, where a

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noncitizen retracts and amends their pleadings before the IJ makes a substantive
decision on their eligibility for relief.1 Moreover, “immigration laws provide little
guidance that would help us to choose such a fixed point.” Arreola-Ochoa v.
Garland, 34 F.4th 603, 608 (7th Cir.), cert. denied, 143 S. Ct. 492 (2022).2
In resolving this case, the court here describes removal proceedings as
comprised of two distinct phases: the IJ determines removability in one phase and
considers eligibility for relief in another. In many cases, the dividing line between
removal and relief may be that simple. But, as this case illustrates, that is not always
how it works. See Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011) (per
curiam) (“[R]emoval proceedings are ‘not always neatly divided into pleading and
evidentiary stages.’” (quoting Perez-Mejia v. Holder, 663 F.3d 403, 415 n.10 (9th
Cir. 2011))).
In Amador-Morales’s proceedings, the parties began discussing potential
avenues of relief before any pleadings as to removability, suggesting removability
and eligibility for relief were being examined concurrently. Then, after admitting to
DHS’s charges, and exploring and declining to pursue different forms of relief,
Amador-Morales suggested to the IJ that his prior voluntary departure order may be
1 Fernandes also left open “[t]he precise contours of permissible remedies” that
DHS may request and an IJ may impose upon a petitioner’s timely objection. 28 I.
& N. Dec. at 616. Thus, if pleadings remained open when Amador-Morales raised
his objection, then the appropriate course of action would have been a remand for
the IJ to determine an appropriate remedy. See id.
2 In this pre-Fernandes case, the Seventh Circuit recognized that “a bright-line
moment during proceedings at which a claim moves from timely to untimely” was
yet undefined, so conducted “a holistic and circumstance-specific analysis of
timeliness.” Arreola-Ochoa, 34 F.4th at 608–09. It considered the following non-
mandatory and non-exhaustive factors: (1) “how much time passed, in absolute
terms, between the receipt of the [NTA] and the raising of the objection;” (2) whether
“the immigration court set a schedule for filing objections, and did the objection
comply with that schedule;” and (3) “how much of the merits had been discussed or
determined prior to the objection[.]” Id. at 609.

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void due to a defective NTA. See Pereira v. Sessions, 585 U.S. 198, 202 (2018) (“A
notice that does not inform a noncitizen when and where to appear for removal
proceedings is not a ‘notice to appear under section 1229(a)’ and therefore does not
trigger the stop-time rule.”). Amador-Morales later moved to terminate proceedings
based on the missing information on the NTA, and submitted amended written
pleadings denying DHS’s charges against him. He did so before the IJ considered
any potential relief on the merits.
When the IJ ruled on Amador-Morales’s motion to terminate, it did not
expressly find his amended pleadings, or objection to the defective NTA, untimely.
Rather, the IJ simply acknowledged that Amador-Morales had “retracted his
admission of the factual allegations and concession of the charge of removal” and
had submitted “updated written pleadings.” The IJ then considered those amended
pleadings and expressly relied on evidence other than Amador-Morales’s withdrawn
pleadings to decide that DHS’s allegations had been proven and deny relief. In short,
the IJ had not yet made a substantive decision about relief when Amador-Morales
objected to the defective NTA and amended his pleadings. Under these
circumstances, the record could support a finding that Amador-Morales’s objection
was timely. Cf. Castillo-Gomez v. Garland, No. 22-1049, 2023 WL 7042544, at *2
(9th Cir. Oct. 26, 2023) (finding objection untimely when it was first raised after the
BIA entered a final removal order); Alvarenga-Canales v. Garland, No. 22-3514,
2023 WL 3094545, at *3 (6th Cir. Apr. 26, 2023) (finding objection untimely when
it was first raised on appeal).
Amador-Morales asked the BIA to reopen his proceedings to apply Fernandes.
However, when the BIA found that his objection to the defective NTA was untimely,
it did not address the fact that when he raised the objection, he also withdrew his
admission and amended his pleadings, and that this occurred prior to any merits
hearing or substantive decision on relief. Thus, even if Fernandes is not an
intervening change in the law, that case—and the BIA’s denial—left open the
question that needs to be answered here: how do we determine when pleadings have
closed? Because the BIA has not clarified, we lack guidance for determining when

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the pleadings are considered closed in a situation like this one—where the initial
admission has been withdrawn and an amended pleading has taken its place.
Our review of the BIA’s decision to deny Amador-Morales’s motion is
deferential, see Payeras v. Sessions, 899 F.3d 593, 596 (8th Cir. 2018), and the
unresolved question does not necessarily have an easy answer—at least as to
Amador-Morales. But given the unusual procedural record, it was an abuse of
discretion to overlook the impact of Fernandes on Amador-Morales’s case. And
because “the [BIA] can bring its expertise to bear upon the matter,” it is properly
“place[d] primarily in agency hands.” See INS v. Orlando Ventura, 537 U.S. 12, 16–
17 (2002) (per curiam). For these reasons, I would grant the petition for review and
remand for the BIA to clarify the phrase “the closing of pleadings,” and, if
appropriate, for the BIA to remand to the IJ for further proceedings.
I respectfully dissent.
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