Case: 19-60808 Document: 00516172338 Page: 1 Date Filed: 01/19/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 19, 2022
No. 19-60808
Summary Calendar Lyle W. Cayce
Clerk
Pedro Penaloza-Fuentes, also known as Jorge Castillo,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A 200 968 217
Before Owen, Chief Judge, and Dennis and Ho, Circuit Judges.
Per Curiam:*
Pedro Penaloza-Fuentes, a native and citizen of Mexico, seeks review
of a Board of Immigration Appeals (BIA) decision denying his motion to
reconsider or reopen. The petition for review is GRANTED in part, and
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-60808 Document: 00516172338 Page: 2 Date Filed: 01/19/2022
No. 19-60808
this case is hereby REMANDED to the BIA for consideration under Niz-
Chavez v. Garland, 141 S. Ct. 1474 (2021).
This court reviews the denial of motions to reopen and for
reconsideration under a highly deferential abuse-of-discretion standard.
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The Attorney General
has discretion to cancel the removal of “an alien who is inadmissible or
deportable from the United States” if the person meets specified criteria. 8
U.S.C. § 1229b(b). To qualify, an alien must have been “physically present
in the United States for a continuous period of not less than 10 years.”
§ 1229b(b)(1)(A). The stop-time rule ends the alien’s requisite period of
physical presence in the United States “when the alien is served a notice to
appear under section 1229(a).” § 1229b(d)(1)(A).
A notice to appear (NTA) must contain, inter alia, the time and place
at which removal proceedings will be held. § 1229(a)(1)(G)(i). In Niz-
Chavez, the Supreme Court held that an NTA sufficient to trigger the stop-
time rule must be a “single document containing all the information an
individual needs to know about his removal hearing” specified in
§ 1229(a)(1). 141 S. Ct. at 1478. Thus, under Niz-Chavez, an NTA sufficient
to trigger the stop-time rule must be a single document containing “the
nature of the proceedings against the alien, the legal authority for the
proceedings, the charges against the alien, the fact that the alien may be
represented by counsel, the time and place at which the proceedings will
be held, and the consequences of failing to appear.” Id. at 1479 (emphasis
added); see also 8 U.S.C. § 1229(a)(1).
The Supreme Court rejected the two-step notice procedure for stop-
time purposes, stating that Congress contemplated that an NTA would be a
single document. Niz-Chavez, 141 S. Ct. at 1480. Under Niz-Chavez,
Penaloza-Fuentes’s NTA did not contain the information required to trigger
the stop-time rule. Accordingly, this petition for review is remanded to the
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Case: 19-60808 Document: 00516172338 Page: 3 Date Filed: 01/19/2022
No. 19-60808
BIA for consideration under Niz-Chavez. As to Penaloza-Fuentes’s claim
that the BIA abused its discretion by refusing to remand his case for
consideration of his spouse’s pending immediate relative I-130 petition, the
petition for review is denied.
* * *
The petition for review is GRANTED in part and DENIED in part.
This matter is hereby REMANDED to the BIA.
3