19-2180
Chen v. Garland
BIA
A072 474 512
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 6th day of May, two thousand twenty-one.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DENNY CHIN,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 YI GUO CHEN,
14 Petitioner,
15
16 v. 19-2180
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jean Wang, Esq., Flushing, NY.
24
25 FOR RESPONDENT: Brian M. Boynton, Acting
26 Assistant Attorney General;
27 Margaret Kuehne Taylor, Senior
28 Litigation Counsel; Anthony O.
29 Pottinger, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Yi Guo Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a July 11, 2019
7 decision of the BIA denying his motion to reopen. In re Yi
8 Guo Chen, No. A072 474 512 (B.I.A. July 11, 2019). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
13 138, 168-69 (2d Cir. 2008). In his second motion to reopen
14 with the BIA, Chen argued that the agency did not have
15 jurisdiction to commence removal proceedings and should have
16 permitted him to apply for cancellation of removal. He
17 argued that his notice to appear (“NTA”), which did not
18 contain a hearing date or time, was deficient under Pereira
19 v. Sessions, 138 S. Ct. 2105 (2018), and thus did not vest
20 jurisdiction with the immigration court or stop his accrual
21 of the physical presence required for cancellation.
2
1 It is undisputed that Chen’s 2018 motion to reopen was
2 number barred because it was his second motion and untimely
3 because it was filed more than 15 years after his 2003
4 exclusion order. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i);
5 8 C.F.R. § 1003.2(c)(2). Chen argues that the BIA should
6 have excused the time limit and reopened sua sponte given the
7 intervening decision in Pereira.
8 In Pereira, the Supreme Court held that the Immigration
9 and Nationality Act unambiguously requires an NTA to include
10 a hearing time and place to trigger the “stop-time rule,” 138
11 S. Ct. at 2113–20, which cuts off a noncitizen’s accrual of
12 physical presence or residence for the purposes of qualifying
13 for cancellation of removal, see 8 U.S.C. § 1229b(a), (b),
14 (d)(1). The BIA did not err in declining either to excuse
15 the time limitation based on Pereira or exercise its authority
16 to reopen sua sponte because Pereira is inapplicable in Chen’s
17 case. Nor does the Supreme Court's recent decision in Niz-
18 Chavez v. Garland, No. 19-863, 2021 WL 1676619 (Apr. 29,
19 2021), which held that the required information must be set
20 forth in one NTA, require a different result. Although there
21 is an NTA in the record that does not include a hearing time
3
1 or place, that NTA was never filed or used to commence removal
2 proceedings. See Arenas-Yepes v. Gonzales, 421 F.3d 111, 116
3 (2d Cir. 2005) (providing that immigration proceedings
4 commence when a charging document is filed with the
5 immigration court and that “it has never been the case . . .
6 that the mere issuance or service on an alien of a charging
7 document ‘commenced’ immigration proceedings against the
8 alien”). Rather, Chen was placed in exclusion proceedings
9 by Notice to Applicant for Admission Deferred for Hearing
10 Before an Immigration Judge (Form I-122), which included a
11 hearing date, time, and place, and thus was sufficient to
12 commence those proceedings. See 8 C.F.R. § 1240.30 (“An
13 exclusion proceeding is commenced by the filing of Form I–
14 122 with the Immigration Court.”). Further, given that Chen
15 was in exclusion proceedings, he is not eligible for
16 cancellation of removal or its predecessor suspension of
17 deportation. See Patel v. McElroy, 143 F.3d 56, 60–61 (2d
18 Cir. 1998) (“[S]uspension of deportation . . . is available
19 to aliens in deportation but not in exclusion proceedings.”).
20 For the foregoing reasons, the petition for review is
21 DENIED. All pending motions and applications are DENIED and
4
1 stays VACATED.
2 FOR THE COURT:
3 Catherine O’Hagan Wolfe,
4 Clerk of Court
5