Guamanrrigra v. Holder, Docket No. 10–4191–ag.

• Decision Date: 24 February 2012
• Docket Number: Docket No. 10–4191–ag.
• Citation: 670 F.3d 404
• Parties: Juan GUAMANRRIGRA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

670 F.3d 404

Juan GUAMANRRIGRA, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

Docket No. 10–4191–ag.

United States Court of Appeals, Second Circuit.

Submitted: Dec. 5, 2011.Decided: Feb. 24, 2012.

Sharyn F. Bertisch, Feinbloom Bertisch LLP, New York, NY, for Petitioner Juan Guamanrrigra.

David H. Wetmore (Tony West, Assistant Attorney General; John S. Hogan, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent Eric H. Holder, Jr.

Before: McLAUGHLIN, CABRANES, and WESLEY, Circuit Judges.

PER CURIAM:

Petitioner Juan Guamanrrigra, a native and citizen of Ecuador, seeks review of a September 21, 2010, decision of the Board of Immigration Appeals (“BIA”), affirming the September 23, 2009, decision of an Immigration Judge (“IJ”) denying his application for cancellation of removal and ordering him removed. In re Guamanrrigra, No. A076 018 623 (B.I.A. Sept. 21, 2010), aff'g No. A076 018 623 (Immig.Ct.N.Y. City Sept. 23, 2009).

This appeal raises two issues of first impression in this Circuit: (1) whether the notice requirements of Immigration and Nationality Act (“INA”) § 239(a)(1), 8 U.S.C. § 1229(a)(1),¹ are satisfied by service of a Notice to Appear that indicates that the date and time of a hearing will be set in the future, followed by service of a separate notice specifying the precise date and time of the hearing; and (2) whether such notice triggers the “stop-time rule” of INA § 240A(d)(1)(A), 8 U.S.C. § 1229b(d)(1)(A),² notwithstanding any defect in service of subsequent notices of change in the time or place of the hearing under INA § 239(a)(2), 8 U.S.C. § 1229(a)(2). ³

We hold that § 239(a)(1) may be satisfied by a combination of notices and that, once notice complying with § 239(a)(1) is provided, the stop-time rule of § 240A(d)(1)(A) is triggered, notwithstanding any defects in subsequent notices under § 239(a)(2).

Background

In September 1995, Guamanrrigra entered the United States “without inspection.” ⁴ On April 12, 2000, Guamanrrigra was served with a Notice to Appear (“April 2000 NTA”), which was mailed to him directly at his Port Chester, New York, address. The April 2000 NTA informed Guamanrrigra that he was removable under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), ⁵ as an alien present in the United States without having been admitted or paroled, and under § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), ⁶ as an alien who, at the time of application for admission, was not in possession of valid entry documentation. Accordingly, it ordered Guamanrrigra “to appear before an immigration judge of the United States Department of Justice at: J.F.K. Federal Bldg. Boston, MA 02203 Room # 320 on [a date] to be set at [a time] to be set to show why [he] should not be removed from the United States.” Notice to Appear, File No. A76 018 623, April 12, 2000 (emphasis added).

On May 1, 2000, the immigration court in Boston mailed to Guamanrrigra a Notice of Hearing in Removal Proceedings (“May 2000 Notice of Hearing”) at the address listed on the April 2000 NTA, indicating that his hearing had been scheduled for August 3, 2000, at 9:00 a.m. It is undisputed that Guamanrrigra and his counsel received both the April 2000 NTA and the May 2000 Notice of Hearing.

On August 1, 2000, an IJ in Boston granted Guamanrrigra's motion for a change in venue to the immigration court in New York City. On August 11, 2000, the immigration court in New York City mailed a Notice of Hearing (“August 2000 Notice of Hearing”) to Guamanrrigra's counsel, notifying him that a hearing was scheduled for August 31, 2000, at 9:30 a.m. The certificate of service indicates that the August 2000 Notice of Hearing was sent to Billy Cris Vidal, Guamanrrigra's attorney at the time, at 110 W. 34th Street in Manhattan. The EOIR–28 form (notice of attorney appearance), however, contains a different address for Vidal. It is therefore not clear whether the August 2000 Notice of Hearing was ever received by Guamanrrigra's counsel. Guamanrrigra, for his part, contends that he (Guamanrrigra) never received this notice and there is no record evidence that it was mailed to his home address in Port Chester.⁷

When Guamanrrigra did not appear at the August 31, 2000 hearing, the IJ conducted an in absentia hearing pursuant to INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A),⁸ and ordered Guamanrrigra removed to Ecuador.

Notwithstanding this Order, Guamanrrigra remained in the United States undisturbed for several more years until, on January 2, 2009, he was stopped for speeding in Springfield, Vermont. A United States Immigration and Customs Enforcement electronic “hit” appeared in the computer system employed by the police officer, notifying the officer of the outstanding removal order in the New York immigration court. Guamanrrigra was taken into custody and transferred to the Franklin County Jail, where he was detained for over a month.

On January 15, 2009, Guamanrrigra's counsel filed a motion to reopen his removal proceeding and to rescind the August 2000 in absentia order of removal, claiming that Guamanrrigra had never received a Notice to Appear or a hearing notice relating to the August 31, 2000 proceeding. In a written order dated February 11, 2009, the IJ granted Guamanrrigra's motion to reopen, finding that, because the August 2000 Notice of Hearing had not been mailed to the address Guamanrrigra's counsel provided in his standard appearance form, and because a copy of that notice was not mailed directly to Guamanrrigra, there was sufficient evidence to suggest that Guamanrrigra had not received notice of the August 31, 2000 hearing.

Guamanrrigra subsequently appeared at a June 2009 hearing in New York, where he confirmed that he had received the April 2000 NTA and the May 2000 Notice of Hearing, admitted the allegations contained therein, and conceded removability. He sought relief in the form of cancellation of removal and adjustment of status pursuant to INA § 240A(b)(1), which permits the Attorney General to cancel removal and adjust the status of an otherwise deportable alien who, among other conditions, “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [his] application.” 8 U.S.C. § 1229b(b)(1)(A).⁹ The government moved to “pretermit” Guamanrrigra's application for cancellation of removal,¹⁰ arguing that Guamanrrigra had not been physically present in the United States for a continuous period of ten years immediately prior to his January 2009 application for relief, because the service of the April 2000 NTA had stopped the accrual of time of continuous presence in accordance with the stop-time rule of § 240A(d)(1)(A).¹¹ In response, Guamanrrigra's counsel argued that the failure of the Department of Homeland Security (“DHS”) to include the date and time of the projected hearing in the April 2000 NTA, as required under § 239(a)(1)(G)(i),¹² rendered the document fatally defective, and therefore service of the April 2000 NTA had not terminated Guamanrrigra's accrual of time of “continuous” presence.

Following briefing and a September 2009 merits hearing, the IJ issued an oral decision denying Guamanrrigra's application for cancellation of removal and ordering him removed to Ecuador. The IJ found that “personal service of the [April 2000 NTA] on [Guamanrrigra] revealing to him that he is in proceedings [and] the consequences of failing to appear in proceedings,” constituted proper service under § 239(a)(1), notwithstanding the fact that the April 2000 NTA did not specify the date and time of the projected hearing. Moreover, the IJ found that Guamanrrigra's concerns that “service [of the April 2000 NTA] was not properly consummated” under § 239(a)(1) were mitigated by the fact that he indisputably received a Notice of Hearing on May 1, 2000, that specified the date, time, and location at which his hearing would be held. Accordingly, the IJ found that Guamanrrigra's “continuous presence in the United States was tolled as of April 12, 2000, when [he] was properly served with the Notice to Appear pursuant to Section 239(a) of the Act,” and therefore he was ineligible for cancellation of removal and adjustment of status under § 240A(b)(1).

Guamanrrigra appealed the IJ's decision to the Board of Immigration Appeals (“BIA”). In September 2010, the BIA dismissed Guamanrrigra's appeal, affirming the IJ's decision denying cancellation of removal. Relying on the Seventh Circuit's decision in Dababneh v. Gonzales, 471 F.3d 806 (7th Cir.2006), the BIA held that a Notice to Appear indicating that the date and time of the alien's hearing is forthcoming, combined with a subsequent Notice of Hearing specifying the date and time of the hearing, complies with the notice requirements of § 239(a)(1), and therefore service of these documents triggers the stop-time rule under § 240A(d)(1), so as to cut off Guamanrrigra's accrual of time of continuous presence in the United States. The BIA also found that, contrary to Guamanrrigra's argument, neither the Boston immigration court's order transferring venue to New York City prior to his initial hearing on August 3, 2000, nor the New York City immigration court's subsequent failure to provide proper notice of his August 31, 2000 hearing, “vitiate[d] the effectiveness” of notice that Guamanrrigra had already received.

Guamanrrigra timely petitioned this Court for review of the BIA's decision.

Discussion

I.

Where, as here, the BIA “adopts the decision of the IJ and merely supplements the IJ's ... decision, we review the decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Because Guamanrrigra's arguments are purely legal, we review them de novo. See Ali v. Mukasey, 525 F.3d 171, 173 (2d Cir.2008).

II.

Under § 240A(b)(1)(A), an alien who...