Cite as 28 I&N Dec. 684 (BIA 2023) Interim Decision #4058 Matter of J- L- L-, Applicant Decided February 10, 2023 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), are inapplicable to proceedings initiated by a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge (“Form I-122”) and other charging documents issued prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009- 546. Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), followed. FOR THE APPLICANT: Yee Ling Poon, Esquire, New York, New York FOR THE DEPARTMENT OF HOMELAND SECURITY: Wendy Leifer, Assistant Chief Counsel BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; HUNSUCKER; Appellate Immigration Judge; NOFERI, Temporary Appellate Immigration Judge. NOFERI, Temporary Appellate Immigration Judge: This matter was last before the Board on September 13, 2004, when we dismissed the applicant’s appeal from the Immigration Judge’s decision ordering him removed. On October 7, 2021, the applicant filed a motion to reopen. The Department of Homeland Security has opposed the motion. The motion will be denied. The applicant was placed into exclusion proceedings by a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge (“Form I-122”) dated April 16, 1995. The Form I-122 listed the address and date of the hearing before an Immigration Judge as “to be calendared.” The applicant now argues that his proceedings should be reopened under Niz- Chavez v. Garland, 141 S. Ct. 1474 (2021), and Pereira v. Sessions, 138 S. Ct. 2105 (2018), because the Form I-122 did not include the date and time of the initial hearing, and he should be allowed to apply for cancellation of removal under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1). In support of the motion, the applicant submitted a Form EOIR-42B application for cancellation of removal and documents regarding his personal and family circumstances. See 8 C.F.R. § 1003.2(c)(1) (requiring supporting evidentiary material). 684 Cite as 28 I&N Dec. 684 (BIA 2023) Interim Decision #4058 The motion to reopen is untimely. 8 C.F.R. § 1003.2(c)(2). The applicant requests sua sponte reopening based on an asserted change in law. See 8 C.F.R. § 1003.2(a). For the reasons explained further below, the Supreme Court’s holdings in Pereira and Niz-Chavez are inapplicable to this case, and do not change the law relevant to the applicant’s motion such that the applicant would be eligible for the underlying relief he seeks if his proceedings were reopened. The applicant was placed in exclusion proceedings by the issuance of a Form I-122, not in removal proceedings by the issuance of a notice to appear. Until April 1, 1997, inspection at U.S. ports of entry was governed by former section 235 of the INA, 8 U.S.C. § 1225 (1994), and exclusion proceedings were governed by former section 236 of the …
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