Garcia-Romo v. Barr

• Decision Date: 04 October 2019
• Docket Number: No. 18-3857,18-3857
• Citation: 940 F.3d 192
• Parties: Gilberto GARCIA-ROMO, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

940 F.3d 192

Gilberto GARCIA-ROMO, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-3857

United States Court of Appeals, Sixth Circuit.

Argued: August 7, 2019

Decided and Filed: October 4, 2019

ARGUED: Alexander H. Park, LEWIS, THOMASON, KING, KRIEG & WALDROP, P.C., Memphis, Tennessee, for Petitioner. Michelle R. Slack, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Alexander H. Park, Rehim Babaoglu, LEWIS, THOMASON, KING, KRIEG & WALDROP, P.C., Memphis, Tennessee, for Petitioner. Brooke M. Maurer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: ROGERS, BUSH, and LARSEN, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

This case presents the following central question: may "a notice to appear" for a removal proceeding under 8 U.S.C. §§ 1229(a), 1229b(d)(1) be served upon a noncitizen¹ through service of more than one written communication and still constitute such "notice" if those multiple installments collectively give the noncitizen all of the information required to be provided by § 1229(a)(1)(A)-(G) ? Petitioner, Gilberto Garcia-Romo, a noncitizen, says no. He argues that "a notice to appear" means that all of the information required by § 1229(a)(1)(A)-(G) must be provided in a single document served upon him in order for such "notice" to be effectuated. As discussed below, we disagree, and for that principal reason we deny Garcia-Romo's petition for review of a final order of his removal from this country as affirmed by the Board of Immigration Appeals ("BIA" or "Board").

Before addressing the "notice to appear" issue, however, we should explain how this issue arises here. Garcia-Romo filed an application with the Immigration Court to cancel his removal order, seeking a form of discretionary relief that the Attorney General may grant to noncitizens to allow them to remain in the United States if they meet certain eligibility requirements under 8 U.S.C. § 1229b(b)(1). One of those requirements is that the alien "has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application." Id. § 1229b(b)(1)(A). Under the "stop-time" rule set forth in § 1229b(d)(1), the accrual period of continuous physical presence is "deemed to end ... when the alien is served a notice to appear under section 1229(a)." A "notice to appear," as defined and referred to in § 1229(a)(1), specifies that the noncitizen be provided with written notice of several different categories of information, described in subsections (A)-(G) of that statutory provision. One of those categories is "[t]he time and place at which the [removal] proceedings will be held." Id. § 1229(a)(1)(G).

Garcia-Romo received a document entitled "Notice to Appear" from the Department of Homeland Security ("DHS") that contained all of the required information under § 1229(a)(1)(A)-(G) except for the time and date of the removal proceedings. The Immigration Court later sent Garcia-Romo a document entitled "Notice of Hearing in Removal Proceedings," which provided the required time-and-date information. Thus, there is no dispute that, through the two referenced written communications, Garcia-Romo received all of the categories of information required to be served by § 1229(a)(1)(A)-(G). Nonetheless, relying on Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), Garcia-Romo argues that the stop-time rule was never triggered in his removal proceedings because he never received a single document that contained all requisite categories.

For the reasons explained below, in light of the ordinary meaning of the relevant statutory text, the stop-time rule is triggered when a noncitizen has received all of the required categories of information of § 1229(a)(1)(A)-(G) whether sent through a single written communication or in multiple written installments. Even if the statutory text were ambiguous, we would be required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) to defer to the BIA's interpretation of the statute, which accords with ours. We therefore DENY Garcia-Romo's petition for review.

I.

Garcia-Romo is a native and citizen of Guatemala who entered the United States without the government's authorization sometime in 2002. On February 29, 2012, DHS served Garcia-Romo with a document entitled "Notice to Appear." A.R. at 794–95. The document indicated that Garcia-Romo was charged as subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) and ordered him to appear "on a date to be set at a time to be set" to show why he should not be removed from the United States. A.R. at 794. Approximately two months later, on April 30, 2012, Garcia-Romo received another document entitled "Notice of Hearing in Removal Proceedings," indicating that his removal proceedings were scheduled on December 19, 2012, at 9:00 a.m. A.R. at 793.

During the December proceedings, Garcia-Romo, appearing with counsel, indicated that he would apply for cancellation of removal and also conceded his charges of removability. A little over two years later, on February 25, 2014, Garcia-Romo timely filed his "Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents," arguing that he was eligible for relief under 8 U.S.C. § 1229b(b). After a hearing, the immigration judge denied Garcia-Romo's application for cancellation of removal. The immigration judge reasoned that Garcia-Romo failed prove that he had been continuously present in the United States for the ten years preceding the service of his February 29, 2012 "Notice to Appear." To support this conclusion, the immigration judge pointed to evidence in the administrative record showing that Garcia-Romo "was arrested by immigration officials on April 25, 2005 and was voluntarily removed to Mexico." A.R. at 63.

Garcia-Romo appealed the immigration judge's order, and on August 17, 2018, the BIA dismissed the appeal. The BIA concluded that Garcia-Romo's "accrual of continuous physical presence for cancellation purposes was terminated by the February 29, 2012, service of the Notice to Appear ... in combination with the subsequent Notice of Hearing dated April 30, 2012, informing the respondent of the date, time and place of his hearing." A.R. at 3 (citing 8 U.S.C. § 1229b(d)(1) ; Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018) ). Thus, Garcia-Romo "needed to demonstrate that he was continuously physically present in the United States for 10 years prior to the receipt of his April 30, 2012 Notice of Hearing." The BIA held that Garcia-Romo failed to make this showing, because of the evidence showing that Garcia-Romo was apprehended and returned to Mexico in April 2005. Accordingly, the BIA dismissed the appeal.

This timely petition followed.

II.

"Where the BIA reviews the immigration judge's decision and issues a separate opinion, rather than summarily affirming the immigration judge's decision, we review the BIA's decision as the final agency determination." Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009) (citation omitted). "To the extent the BIA adopted the immigration judge's reasoning, however, [we] also review[ ] the immigration judge's decision." Id. (citation omitted). We review questions of law de novo, "but substantial deference is given to the BIA's interpretation of the [Immigration and Nationality Act] and accompanying regulations." Id. (citing Morgan v. Keisler , 507 F.3d 1053, 1057 (6th Cir. 2007) ). The immigration judge's and the Board's factual findings, by contrast, are reviewed under the substantial-evidence standard. Ben Hamida v. Gonzales , 478 F.3d 734, 736 (6th Cir. 2007). Thus, the immigration judge's and the Board's factual findings "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

Before we turn to the crux of this case, we must address the government's assertion that we lack jurisdiction because Garcia-Romo did not exhaust his administrative remedies. As the government sees it, Garcia-Romo failed to exhaust his administration remedies because he "did not include in his appeal to the Board any argument regarding the sufficiency of the [notice to appear] or subsequent notice of hearing and whether the service of those documents effectively triggered the stop-time rule for cancellation of removal." Resp't Br. at 7.

Under the Immigration and Nationality Act, this court has jurisdiction to review "constitutional claims or questions of law" presented in a timely petition for review. 8 U.S.C. § 1252(a)(2)(D). However, as required by the statute, a court of appeals "may review a final order of removal only if," in addition to one other requirement not relevant here, "the alien has exhausted all administrative remedies to the alien as of right." Id. § 1252(d)(1) ; see also Suassuna v. INS , 342 F.3d 578, 583 (6th Cir. 2003) ("The statute governing [the courts of appeals' jurisdiction] to review an order of deportation requires the exhaustion of administrative remedies."). "The purpose of section 1252(d)(1)'s exhaustion requirement is (1) to ensure that the agency responsible for constructing and applying the immigration laws and implementing regulations, has had a full opportunity to consider a petitioner's claims; (2) to avoid premature interference with the agency's processes; and (3) to allow the BIA to compile a record which is adequate for judicial review." Bi Xia Qu v. Holder , 618 F.3d 602, 609 (6th Cir. 2010) (alteration omitted) (quoting Ramani v. Ashcroft , 378 F.3d 554, 559 (6th Cir. 2004) ).

As a general rule the exhaustion requirement requires that the petitioner press all reviewable issues to the BIA and each issue "must be reasonably developed in the petitioner's brief to the BIA." Khalili , 557 F.3d at 432–33 (citing Sterkaj v....