FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL POSOS-SANCHEZ, AKA Elias No. 17-72002
Avalos Fonseca, AKA Angel
Figueroa Martinez, AKA Pedro Agency No.
Soto-Hernandez, A092-724-951
Petitioner,
v. OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 7, 2021
Pasadena, California
Filed July 7, 2021
Before: Kim McLane Wardlaw, Ronald M. Gould, and
John B. Owens, Circuit Judges.
Opinion by Judge Wardlaw
2 POSOS-SANCHEZ V. GARLAND
SUMMARY *
Immigration
Denying in part and granting in part Angel Posos-
Sanchez’s petition for review of a decision of the Board of
Immigration Appeals, and remanding, the panel held that:
1) the agency correctly concluded that Posos had not been
“admitted” to the United States and was therefore removable
and ineligible to adjust his status; and 2) in light of Pereira
v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v.
Garland, 141 S. Ct. 1474 (2021), the Notice to Appear
(NTA) served on Posos – which lacked the time and date of
his removal proceedings – did not terminate his period of
physical presence in the United States and, as a result, the
agency erred in finding him ineligible for voluntary
departure on the ground that he had not been physically
present for a year before service his NTA.
The panel concluded that the IJ correctly concluded that
Posos had not been “admitted” as required by 8 U.S.C.
§ 1182(a)(6)(A)(i) (removability ground based on lack of
admission) and 8 U.S.C. § 1255(a) (adjustment of status).
The panel explained that 8 U.S.C. § 1101(a)(13)(A) defines
“admission” and “admitted” as “the lawful entry of the alien
into the United States after inspection and authorization by
an immigration officer,” and that, based on this court’s
precedent, unless an immigration official has inspected a
noncitizen at a port of entry and then granted that noncitizen
permission to enter the United States, that noncitizen has not
been “admitted.” Accordingly, the panel concluded that
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
POSOS-SANCHEZ V. GARLAND 3
Posos had not been admitted when agents at a border patrol
checkpoint in San Clemente, California, apprehended and
released him after he showed them his then-valid temporary
resident card. The panel assumed that these actions could
amount to “inspection and authorization,” but explained the
event did not take place at a “port of entry,” as the checkpoint
sits well within the United States. Noting that the court has
read the term “admitted” more broadly when statutory
context demanded, the panel found no factual or legal
ground to do so here.
The panel observed that the BIA had reached the same
result as the IJ, but concluded that the BIA erred in
concluding that INS’s ultimate decision to deny Posos
temporary resident status would have undone any
hypothetical admission at the checkpoint. The panel
concluded that the BIA’s reasoning turned on an erroneous
interpretation of United States v. Hernandez-Arias, 757 F.3d
874 (9th Cir. 2014), explaining that, under Hernandez-Arias,
noncitizens factually admitted at a U.S. port of entry while
they hold temporary resident status do not magically become
unadmitted once their temporary resident status ends.
Nevertheless, because the IJ’s legal analysis was sound, the
panel affirmed the agency’s conclusion that Posos was
removable and ineligible to adjust status.
As to the denial of voluntary departure under 8 U.S.C.
§ 1229c, the panel concluded that the agency erred in
concluding that Posos lacked the requisite period of physical
presence prior to service of his NTA. Under
§ 1229c(b)(1)(A), an IJ must find, among other things, that
the noncitizen “has been physically present in the United
States for a period of at least one year immediately preceding
the date the notice to appear was served under section
1229(a).” The panel explained that, unlike the agency at the
4 POSOS-SANCHEZ V. GARLAND
time of Posos’s proceedings, it had the benefit of the
Supreme Court’s decisions in Pereira and Niz-Chavez. In
light of those rulings, the panel concluded that: 1)
§ 1229c(b)(1)(A) unambiguously requires that the NTA, if it
is to stop a noncitizen from earning physical-presence time
for voluntary departure, must comply with § 1229(a), which
includes the requirement that the NTA include the time of
removal proceedings; and 2) § 1229c(b)(1)(A)
unambiguously envisions a § 1229(a) NTA as being a single
document. Bringing these two principles together, the panel
concluded: a noncitizen builds up physical-presence time
under § 1229c(b)(1)(A) from the moment he enters the
United States until the moment he receives a single
document that provides him with all the information listed in
§ 1229(a). Explaining that this conclusion flows from the
statute’s unambiguous text, structure, and history, the panel
concluded it had no need to defer to any previous
interpretation advanced by the BIA.
Applying these principles to Posos’s case, the panel
concluded that he never received the NTA that
§ 1229c(b)(1)(A) demands because his NTA lacked the time
and date of his hearing and, as a result, Posos continued to
accrue physical-presence time ever since he entered the
country in March 2011. Because Posos had over five years
of physical-presence when the IJ ordered him removed, and
thus indisputably satisfied § 1229c(b)(1)(A)’s physical-
presence requirement, the panel concluded that the agency
wrongly found Posos ineligible for voluntary departure. The
panel remanded to the agency to make further findings and
conclusions about Posos’s eligibility for voluntary
departure.
POSOS-SANCHEZ V. GARLAND 5
COUNSEL
Michael J. Selph (argued), Law Offices of Michael J. Selph,
North Hollywood, California, for Petitioner.
Rachel L. Browning (argued), Trial Attorney; Keith I.
McManus, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
WARDLAW, Circuit Judge
In September 1990, United States Border Patrol agents
stopped Angel Posos-Sanchez at a border patrol checkpoint
in San Clemente, California. They examined his
immigration papers—which at the time authorized him to
work and reside in the United States—and then let him go
on his way. This incident became important decades later,
when Posos faced removal proceedings. At that time, he
applied to adjust his status and contested his removal from
the United States because he claimed that the officials in San
Clemente had “admitted” him to the United States. See
8 U.S.C. §§ 1101(a)(13)(A), 1182(a)(6)(A)(i), 1255(a).
Posos also applied for voluntary departure at the end of
his removal proceedings, so that he could leave the United
States on his terms. See id. § 1229c. He made that request
even though he had not been physically present within the
United States for a year before the Department of Homeland
Security (DHS) served him with the operative Notice to
Appear (NTA). At the time, he thus appeared ineligible for
voluntary departure. See id. § 1229c(b)(1)(A). Yet his NTA
6 POSOS-SANCHEZ V. GARLAND
did not state the time or date of Posos’s removal
proceedings—a fact that now sets off alarm bells given the
Supreme Court’s groundbreaking decisions in Pereira v.
Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v.
Garland, 141 S. Ct. 1474 (2021).
Though Posos lost on both fronts before the Immigration
Judge (IJ) and the Board of Immigration Appeals (BIA)
(collectively “the agency”), we render a mixed verdict here.
On the one hand, the agency properly found that immigration
officials did not “admit” Posos to the United States when
they allowed him to pass through the San Clemente
checkpoint in 1990. He is therefore removable and ineligible
to adjust his status. On the other hand, the agency erred in
finding him ineligible for voluntary departure under
§ 1229c(b)(1)(A). The missing date-and-time information
on Posos’s NTA means that DHS never served him with the
kind of NTA that § 1229c(b)(1)(A) demands. Accordingly,
that NTA did not stop the clock for purposes of computing
the time during which he was physically present in the
United States under § 1229c(b)(1)(A). And as a result,
Posos had racked up five years of physical presence when
the IJ ordered him removed, and he was therefore eligible
for voluntary departure if he satisfied the other statutory
conditions.
We thus deny in part and grant in part Posos’s petition
and remand for further consideration of his application for
voluntary departure.
I.
A.
Posos was born in Zacatepec, Mexico, and at age 17, he
set out on foot for the United States. At some point in 1980,
POSOS-SANCHEZ V. GARLAND 7
he crossed the southern border of the United States without
encountering American immigration authorities. He has
lived, worked, and built a family here ever since.
During the first decade that Posos lived in the country,
Congress passed the Immigration Reform and Control Act
(IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (1986), and the
amnesty provisions therein, see 8 U.S.C. § 1255a. These
amnesty provisions provided a path to permanent resident
status for noncitizens who had resided unlawfully and been
physically present in the United States since January 1, 1982.
See Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1134 (9th
Cir. 1999). Qualifying noncitizens who wished to take
advantage of this system applied “first for lawful temporary
resident status, and then, after a one-year wait, for permanent
residency.” Id.
Posos applied for temporary resident status under this
law, but, because of the law’s confidentiality provisions, we
aren’t privy to every detail about that application. See
8 U.S.C. § 1255a(c)(5). Still, we know that, on May 4, 1988,
the Immigration and Naturalization Service (INS) issued
Posos a temporary resident card (Form I-688) that expired
on November 30, 1990. This card stated that Posos could
legally “reside and work in U.S. until [the] card expires.”
Then, on August 24, 1993, the INS informed Posos that his
“application for the benefit of temporary resident status must
be and is hereby denied.” Nothing in the record suggests that
Posos ever held either temporary or permanent resident
status after August 24, 1993.
Yet his temporary resident card remained valid when
immigration officials stopped him at the border patrol
checkpoint in San Clemente, California on September 24,
1990. See generally 8 U.S.C. § 1357(a); 8 C.F.R. § 287.1(a).
Posos lived in Riverside, California at the time, and had
8 POSOS-SANCHEZ V. GARLAND
traveled to San Diego for recreational purposes. On Posos’s
way back home, the border patrol agent manning the San
Clemente checkpoint stopped Posos and his passengers and
asked them about their citizenship status. Posos stated that
he was a Mexican citizen and presented the border patrol
agent with his valid temporary resident card. As a result, the
border patrol agents released Posos on his own
recognizance; his passengers, who were undocumented
Mexican citizens, voluntarily elected to return to Mexico
rather than face deportation proceedings.
After the INS denied his application for temporary
resident status in 1993, Posos continued to live and work in
the United States. However, in either 2010 or 2011,
Immigration and Customs Enforcement removed Posos to
Mexico (the record does not explain how or why this
removal came about).
Seeking to reunite with his family, Posos tried to reenter
the United States at the San Ysidro Port of Entry on March
9, 2011. There, immigration officials stopped the vehicle
bringing him into the country and found him hiding in the
trunk of the car. Posos admitted to these officials that he
lacked the necessary documentation to enter or remain in the
United States. They therefore detained him and referred him
to the Immigration Court for removal proceedings. 1
Importantly for our purposes here, these immigration
officials did not give Posos written, verbal, or nonverbal
authorization to enter the United States, and Posos has never
received such permission.
1
Posos was released on bond on May 16, 2011.
POSOS-SANCHEZ V. GARLAND 9
B.
On May 2, 2011, DHS filed an NTA, alleging that Posos
was removable as a native and citizen of Mexico, who had
entered the United States without being admitted or paroled
after inspection. This NTA failed to state the date and time
of Posos’s removal proceedings. Later on, however, DHS
sent Posos notices of hearing containing that missing
information.
Before the IJ, Posos conceded most of the allegations in
the NTA, denying only the allegation that an immigration
official had not “admitted” him to the United States. He also
applied for affirmative immigration relief, including
adjustment of status under 8 U.S.C. § 1255(a), cancellation
of removal under 8 U.S.C. § 1229b, and voluntary departure
under 8 U.S.C. § 1229c. In filing his application to adjust
his status, Posos maintained that immigration officials had
“admitted” him to the United States.
Posos offered two theories for his “admission” into the
country. First, he argued that he had been admitted when he
received temporary resident status. Second, he claimed that
immigration officials had admitted him into the United
States on September 24, 1990, when the border patrol agents
at the San Clemente checkpoint apprehended and released
him after he showed them his temporary resident card.
The IJ overseeing Posos’s case rejected both arguments,
thereby finding Posos removable and ineligible to adjust his
status. The IJ further denied Posos’s application for
cancellation of removal because Posos lacked a qualifying
relative, and found Posos ineligible for voluntary departure
because he had last entered the United States less than a year
before DHS served him with the operative NTA.
10 POSOS-SANCHEZ V. GARLAND
On appeal before the BIA, Posos contested the IJ’s
decision as to his lack of an “admission” to the United States
(based solely on the events at the San Clemente checkpoint)
and the IJ’s finding that he was ineligible for voluntary
departure. 2 Citing Matter of Burbano, 20 I. & N. Dec. 872,
874 (B.I.A. 1994), the BIA adopted and affirmed the IJ’s
decision, adding only that INS’s ultimate decision to deny
Posos temporary resident status would have undone any
hypothetical admission at the San Clemente checkpoint.
Posos timely petitioned for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) and
§ 1252(a)(2)(D). 3 Because the BIA cited Matter of Burbano
and also provided its own analysis in this case, we review
both the BIA and IJ’s decisions. Cordoba v. Barr, 962 F.3d
479, 481 (9th Cir. 2020). We review the agency’s legal
conclusions de novo and review its factual findings for
substantial evidence. Bringas-Rodriguez v. Sessions,
850 F.3d 1051, 1059 (9th Cir. 2017) (en banc).
2
Posos did not pursue his earlier argument that he was still
“admitted” to the United States based on his prior temporary resident
status. Nor has he ever argued that immigration officials “paroled” him
into the United States under 8 U.S.C. § 1182(a)(6)(A)(i) or § 1255(a).
We thus lack jurisdiction to consider these issues. Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004).
3
While we cannot review a discretionary denial of voluntary
departure, 8 U.S.C. § 1252(a)(2)(B)(i), we have jurisdiction to correct
erroneous interpretations of 8 U.S.C. § 1229c, see id. § 1252(a)(2)(D);
Corro-Barragan v. Holder, 718 F.3d 1174, 1177 (9th Cir. 2013).
POSOS-SANCHEZ V. GARLAND 11
III.
We first examine whether immigration officials
“admitted” Posos to the United States at the San Clemente
checkpoint on September 24, 1990—as Posos’s
removability and application to adjust his status both turn on
the answer to that question. See 8 U.S.C.
§§ 1182(a)(6)(A)(i), 1255(a).
A.
The INA generally defines the words “admission” and
“admitted” as “the lawful entry of the alien into the United
States after inspection and authorization by an immigration
officer.” Id. § 1101(a)(13)(A); accord Sanchez v. Mayorkas,
2021 WL 2301964, at *2 (U.S. June 7, 2021). We have
explained that this “definition refers expressly to entry into
the United States, denoting by its plain terms passage into
the country from abroad at a port of entry.” Negrete-
Ramirez v. Holder, 741 F.3d 1047, 1051 (9th Cir. 2014); see
also Torres v. Barr, 976 F.3d 918, 924 (9th Cir. 2020) (en
banc) (“[A]lthough the INA does not currently define the
term ‘entry,’ we have long understood this term to refer to
‘coming from outside’ into the United States.” (citation
omitted)). Put otherwise, unless an immigration official has
inspected a noncitizen at a port of entry and then granted that
noncitizen permission to enter the United States, that
noncitizen has not been “admitted” under § 1101(a)(13)(A).
See United States v. Hernandez-Arias, 757 F.3d 874, 880
(9th Cir. 2014).
Accordingly, immigration officials have not “admitted”
Posos to the United States under § 1101(a)(13)(A). Though
these officials have detained and inspected Posos multiple
times at a U.S. port of entry, he concedes that they have
never granted him permission to enter the United States.
12 POSOS-SANCHEZ V. GARLAND
The border patrol’s September 1990 apprehension,
interrogation, and release of Posos at a checkpoint in San
Clemente, California does not change this calculus. We
assume that these actions could theoretically amount to an
“inspection and authorization” under § 1101(a)(13)(A).
Even so, that inspection and authorization did not take place
at a “port of entry”; the San Clemente checkpoint sits well
within the United States. Posos thus cannot have lawfully
entered “the United States after [this] inspection and
authorization.” 8 U.S.C. § 1101(a)(13)(A) (emphasis
added).
Still, § 1101(a)(13)(A)’s definition is just a default, and,
when statutory context has demanded, we have read the term
“admitted” more broadly than the “strict definition” in
§ 1101(a)(13)(A). Hernandez-Arias, 757 F.3d at 880
(quoting Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1015
(9th Cir. 2006)). But the Supreme Court recently
emphasized that “[s]ection 1255 generally requires a lawful
admission” of the kind described in § 1101(a)(13)(A)
“before a person can obtain” lawful permanent-resident
status. Sanchez, 2021 WL 2301964 at *5; see also id. at *2.
And we have found no factual or legal ground that would
justify reading the word “admitted” in either
§ 1182(a)(6)(A)(i) or § 1255(a) to encompass Posos’s
interaction with officials at the San Clemente checkpoint.
The IJ therefore correctly concluded that Posos had not been
“admitted” to the United States as required under
§ 1182(a)(6)(A)(i) or § 1255(a).
B.
The BIA reached the same result, but its route there
turned on an erroneous interpretation of our decision in
Hernandez-Arias. We take this opportunity to correct the
BIA’s reasoning.
POSOS-SANCHEZ V. GARLAND 13
Hernandez-Arias assumed that a noncitizen with
temporary resident status under IRCA’s amnesty provisions
(8 U.S.C. § 1255a(a)) had received a fictional admission to
the United States. 757 F.3d at 881. But even so, the
government’s decision to terminate that status under
8 C.F.R. § 245a.2(u)(4) fully unwound that “statutory
fiction.” Id. By contrast, we never suggested that
terminating a noncitizen’s temporary resident status would
negate a noncitizen’s “factual admission that occurs during
a period of time that the alien is legally entitled to exit and
reenter the United States.” Gomez v. Lynch, 831 F.3d 652,
662 (5th Cir. 2016). We instead cut off that argument,
stating that “our review . . . [was] confined to the operation
of IRCA and its unique implementing regulations” and
“limit[ing] the effect of our holding and our discussion . . .
to those admissions arising under . . . 8 U.S.C. § 1255a(a).”
Hernandez-Arias, 757 F.3d at 881 n.3.
The BIA thus stretched Hernandez-Arias beyond that
decision’s limits when it concluded that the INS’s revocation
of Posos’s temporary resident status in 1993 undid any
theoretical “factual admission” at the San Clemente
checkpoint in 1990. Noncitizens factually admitted to the
United States at a U.S. port of entry while they hold
temporary resident status under § 1255a(a) do not magically
become unadmitted once their temporary resident status
ends. See id. They have, after all, still been “inspected” and
“authorized” to enter the United States at a port of entry.
8 U.S.C. § 1101(a)(13)(A).
***
Because the IJ’s legal analysis was sound, we affirm the
agency’s conclusion that Posos was removable under
§ 1182(a)(6)(A)(i) and ineligible to adjust his status under
§ 1255(a) and deny his petition on this point.
14 POSOS-SANCHEZ V. GARLAND
IV.
That leaves the question of whether the agency correctly
denied Posos’s application for voluntary departure because
he had not been physically present in the United States for at
least one year before DHS served him with the NTA in this
case. See 8 U.S.C. § 1229c(b)(1)(A). Unlike the agency, we
have the benefit of the Supreme Court’s decisions in Pereira
and Niz-Chavez, and, given those rulings, we grant Posos’s
petition on this front and return the case to the agency to re-
examine his application for voluntary departure.
A.
After ordering a noncitizen removed from the United
States, an IJ may permit that noncitizen to leave the country
voluntarily and at his own expense, rather than being
deported by the government. See 8 U.S.C. § 1229c(b). The
IJ must, however, make certain findings before authorizing
that discretionary relief. See id. § 1229c(b)(1). Among
other things and at issue here, the IJ must find that the
noncitizen “has been physically present in the United States
for a period of at least one year immediately preceding the
date the notice to appear was served under section 1229(a).”
Id. § 1229c(b)(1)(A).
Whether a noncitizen meets this physical-presence
requirement appears, at first glance, a simple enough
question. Once DHS serves a noncitizen with an NTA
“under section 1229(a),” that noncitizen ordinarily stops
accruing physical-presence time. Id. An IJ need then only
determine the date of service, the date the noncitizen last
entered the United States, and how much time passed
between the two. If more than a year has elapsed, the
noncitizen may merit voluntary departure.
POSOS-SANCHEZ V. GARLAND 15
But in immigration law, provisions that seem simple
require delicate parsing. And here, the phrase “the date the
notice to appear was served under section 1229(a)” plays a
critical role in calculating a noncitizen’s physical-presence
time. Id. § 1229c(b)(1)(A). It does so in two ways.
First, this phrase unambiguously requires that the NTA,
if it is to stop a noncitizen from earning physical-presence
time, must comply with § 1229(a)’s requirements. To start,
the statute expressly references “section 1229(a),” telling a
reader “where to look to find out what ‘notice to appear’
means.” Pereira, 138 S. Ct. at 2114. It also demands
immigration officials serve the NTA “under section
1229(a).” And while the word “under” can have many
meanings, we think Pereira compels the conclusion here that
it signifies “‘in accordance with’ or ‘according to.’” Id.
(citations omitted). After all, serving a § 1229(a) NTA plays
the same role in both § 1229b(d)(1)’s stop-time rule (at issue
in Pereira) and § 1229c(b)(1)(A)’s physical-presence
requirement (at issue here). It marks the end of the temporal
period that determines, in part, a noncitizen’s eligibility for
voluntary departure or cancellation of removal.
Moreover, because the Supreme Court has already told
us what Congress meant by “under section 1229(a)” when
Congress used this phrase in § 1229b(d)(1)(A), this reading
should come as no surprise. For § 1229c(b)(1)(A) uses the
exact same language, and interpreting that phrase differently
would contravene the “normal rule of statutory construction
that identical words used in different parts of the same act
are intended to have the same meaning.” Pereira, 138 S. Ct.
at 2115 (citation omitted); see generally Corro-Barragan,
718 F.3d at 1178 (explaining that both provisions came into
being when Congress overhauled immigration law through
the Illegal Immigration Reform and Immigrant
16 POSOS-SANCHEZ V. GARLAND
Responsibility Act of 1996 (IIRIRA)). For these reasons,
§ 1229c(b)(1)(A) requires DHS to provide a noncitizen with
an NTA containing all the information that Congress listed
in § 1229(a). See Niz-Chavez, 141 S. Ct. at 1480; Pereira,
138 S. Ct. at 2114.
Section 1229c(b)(1)(A)’s second subtlety is that it
unambiguously envisions a § 1229(a) NTA as being a single
document. The statute speaks of “the notice to appear.”
8 U.S.C. § 1229c(b)(1)(A) (emphasis added). It thus joins
the article “the” with the singular noun “notice to appear”—
“a combination that . . . seems to suggest a discrete
document.” Niz-Chavez, 141 S. Ct. at 1483. Note also that
Congress ended § 1229c(b)(1)(A)’s physical-presence
period on “the date” the government serves a noncitizen with
a § 1229(a) NTA. 8 U.S.C. § 1229c(b)(1)(A) (emphasis
added). That language “equate[s] servi[ng]” a § 1229(a)
NTA “with a discrete moment, not an ongoing endeavor.”
Niz-Chavez, 141 S. Ct. at 1483. Add to this Niz-Chavez’s
extended and pertinent discussion of IIRIRA’s statutory
structure and history, see id. at 1482–84, and we have no
doubt that § 1229c(b)(1)(A)’s physical-presence period ends
only once a noncitizen receives a single document
containing the information required by § 1229(a).
Bringing these two principles together: a noncitizen
builds up physical-presence time under § 1229c(b)(1)(A)
from the moment he enters the United States until the
moment he receives a single document that provides him
with all the information Congress listed in 8 U.S.C.
§ 1229(a)—i.e., a § 1229(a) NTA. This conclusion flows
from IIRIRA’s unambiguous text, structure, and history. We
thus have no need to defer to any previous interpretation
advanced by the BIA. See Niz-Chavez, 141 S. Ct. at 1480;
Pereira, 138 S. Ct. at 2113–14.
POSOS-SANCHEZ V. GARLAND 17
B.
These principles make resolving Posos’s case
straightforward. He received an NTA that omitted “[t]he
time . . . at which” his removal “proceedings [would] be
held,” as 8 U.S.C. § 1229(a)(1)(G)(i) requires. He then
received various notices of hearing, which provided that
missing information, but otherwise lacked the information
listed in § 1229(a)(1). He thus never received “the notice to
appear . . . served under section 1229(a)” that
§ 1229c(b)(1)(A) demands.
As a result, Posos has continued to accrue physical-
presence time ever since he entered the country in March
2011. This means he had over five years of physical-
presence time when the IJ ordered him removed, and he
indisputably satisfied § 1229c(b)(1)(A)’s physical-presence
requirement. The agency therefore wrongly (though at the
time, understandably) found Posos ineligible for voluntary
departure. Because both the IJ and the BIA denied Posos’s
application for voluntary departure solely on the basis of
inadequate physical presence, we leave it to the IJ to
consider whether Posos satisfies § 1229c(b)’s other
requirements.
V.
For these reasons, we grant in part and deny in part
Posos’s petition for review and remand to the agency to
make further findings and conclusions about his eligibility
for voluntary departure.
18 POSOS-SANCHEZ V. GARLAND
PETITION GRANTED IN PART AND DENIED IN
PART; REMANDED. 4
4
In accordance with Federal Rule of Appellate Procedure 39(a)(4),
we award costs to Posos.