19-3666
Lin v. Garland
BIA
A078 471 884
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 7th day of March, two thousand twenty-two.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 REENA RAGGI,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 XIU FENG LIN,
14 Petitioner,
15
16 v. 19-3666
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Carissa Tyler, Esq., Alexander G.
24 Rojas, Esq., Barst Mukamal &
25 Kleiner LLP, New York, NY.
26
27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
28 Attorney General; Julie M.
29 Iversen, Senior Litigation
30 Counsel; Anna Juarez, Senior
31 Litigation Counsel, Office of
32 Immigration Litigation, United
1 States Department of Justice,
2 Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is GRANTED in part and DENIED in part.
8 Petitioner Xiu Feng Lin, a native and citizen of the
9 People’s Republic of China, seeks review of an October 21,
10 2019, decision of the BIA denying her motion to reopen. In
11 re Xiu Feng Lin, No. A 078 471 884 (B.I.A. Oct. 21, 2019). We
12 assume the parties’ familiarity with the underlying facts and
13 procedural history.
14 We review the BIA’s denial of a motion to reopen for
15 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
16 138, 168-69 (2d Cir. 2008). It is undisputed that Lin’s 2018
17 motion was untimely and number barred because it was filed
18 more than 15 years after her 2003 removal order and it was
19 her fourth motion. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i)
20 (providing for one motion to reopen within 90 days). The BIA
21 declined to excuse the time and number limits in light of
22 Pereira v. Sessions, 138 S. Ct. 2105 (2018), concluding that
2
1 Lin’s hearing notice stopped her accrual of the physical
2 presence required for cancellation of removal.
3 For a non-permanent resident, like Lin, to be eligible
4 for cancellation, she must have accrued 10 years of continuous
5 physical presence in the United States. 8 U.S.C.
6 § 1229b(b)(1)(A). In Pereira v. Sessions, the Supreme Court
7 held that the Immigration and Nationality Act unambiguously
8 requires a notice to appear (“NTA”) to include a hearing time
9 and place to trigger the “stop-time rule,” ending the accrual
10 of physical presence. 138 S. Ct. 2105, 2113–20 (2018).
11 After Pereira, the BIA held that where an NTA omits this
12 information, the accrual of time stops when the missing
13 information is provided in a hearing notice. See Matter of
14 Mendoza-Hernandez & Capula-Cortes, 27 I. & N. Dec. 520, 529
15 (B.I.A. 2019). The Supreme Court has recently rejected the
16 BIA’s position, holding that an NTA that does not contain a
17 hearing date and time is not cured for purposes of the stop-
18 time rule by a subsequent notice of hearing that provides the
19 missing information. See Niz-Chavez v. Garland, 141 S. Ct.
20 1474, 1485–86 (2021) (requiring the Government to issue a
21 single NTA containing all statutorily required information
3
1 rather than providing the information in separate documents).
2 Accordingly, we vacate the BIA’s decision insofar as it relies
3 on Matter of Mendoza-Hernandez & Capula-Cortes to conclude
4 that Lin has not accrued the requisite physical presence for
5 cancellation of removal and remand for consideration of her
6 motion to reopen in light of Niz-Chavez v. Garland. 1
7 Lin’s remaining argument that the agency lacked
8 jurisdiction over her removal proceedings is foreclosed by
9 Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019).
10 In Banegas Gomez, we held that Pereira addresses a narrow
11 question regarding the stop-time rule and does not “void
12 jurisdiction in cases in which an NTA omits a hearing time or
13 place.” Id. at 110 (emphasis in original). The Supreme
14 Court’s ruling in Niz-Chavez similarly focuses on the stop-
15 time rule and does not address the IJ’s jurisdiction, which
16 is governed by separate regulation unrelated to the statutory
17 provision establishing the stop-time rule. See Niz-Chavez,
18 141 S. Ct. at 1480–81; Banegas Gomez, 922 F.3d at 111–12
19 (citing 8 C.F.R. §§ 1003.13, 1003.14(a), 1003.18(b)).
1 The government does not argue, and we therefore do not consider, whether
Lin’s accrual of continuous presence was halted upon entry of a final order of
removal, but we do not foreclose consideration of this question on remand.
4
1 For the foregoing reasons, the petition for review is
2 GRANTED in part, DENIED in part, and the case is REMANDED for
3 further consideration consistent with this order.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7
5