Banuelos-Galviz v. Barr

• Decision Date: 25 March 2020
• Docket Number: No. 19-9517,19-9517
• Citation: 953 F.3d 1176
• Parties: Jose Angel BANUELOS-Galviz, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

953 F.3d 1176

Jose Angel BANUELOS-Galviz, Petitioner,

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

No. 19-9517

United States Court of Appeals, Tenth Circuit.

FILED March 25, 2020

Mark Robert Barr, Denver, Colorado, for Petitioner.

William C. Minick, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C. (Linda S. Wernery, Assistant Director, with him on the briefs) for Respondent.

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

This petition involves qualification for a remedy known as "cancellation of removal," which allows noncitizens to avoid removal under certain circumstances. To qualify for cancellation of removal, noncitizens must continuously stay or reside in the United States for a minimum number of years. The requirement varies based on whether the noncitizens are lawful permanent residents. If the noncitizens are lawful permanent residents, they must have continuously resided in the United States for at least seven years. 8 U.S.C. § 1229b(a)(2). All other noncitizens must have continuously been present for at least ten years. 8 U.S.C. § 1229b(d)(1)(A) ; see Part 1, below. The period of continuous presence terminates upon service of "a notice to appear under § 1229(a)" according to a provision known as the "stop-time rule." 8 U.S.C. § 1229b(d)(1).

This case involves the relationship between the stop-time rule and the statutory requirements for notices to appear. Under these requirements, a notice to appear must include the time of the removal hearing. 8 U.S.C. § 1229(a)(1)(G)(i) ; see Part 1, below. When the time is missing, the notice to appear does not trigger the stop-time rule. Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 2110, 201 L.Ed.2d 433 (2018).

But what if an incomplete notice to appear is followed by a notice of hearing that supplies the previously omitted information? We conclude that the stop-time rule is still not triggered. In our view, the stop-time rule is triggered by one complete notice to appear rather than a combination of documents.

1. Mr. Banuelos was served with a deficient notice to appear and a subsequent notice of hearing that supplied the date and time of his removal hearing.

Mr. Banuelos entered the United States in 2006. Roughly three years later, Mr. Banuelos was served with a document labeled "Notice to Appear." By statute, a notice to appear must include the time of the removal hearing. 8 U.S.C. § 1229(a)(1)(G)(i) ; see p. 1178, above. But Mr. Banuelos’s document did not tell him the date or time of the hearing, so the immigration court later sent him a notice of hearing with this information.

Mr. Banuelos then sought asylum, withholding of removal, and protection under the Convention Against Torture. The immigration judge rejected each request, and Mr. Banuelos appealed to the Board of Immigration Appeals.

While the administrative appeal was pending, the Supreme Court decided Pereira v. Sessions , which held that the stop-time rule is not triggered by a notice to appear that omits the time of the removal hearing. ––– U.S. ––––, 138 S. Ct. 2105, 2113–14, 201 L.Ed.2d 433 (2018). Because Mr. Banuelos’s notice to appear lacked both the date and time, he moved for a remand so that the immigration judge could consider his request for cancellation of removal.

To qualify for cancellation of removal, Mr. Banuelos needed to show continuous presence in the United States for at least ten years. 8 U.S.C. § 1229b(d)(1)(A) ; see p. 1178, above. His ability to satisfy this requirement turned on whether the combination of the deficient notice to appear and notice of hearing had triggered the stop-time rule. If the stop-time rule had been triggered, Mr. Banuelos would have had only about three years of continuous presence. But if the stop-time rule had not been triggered, Mr. Banuelos’s continuous presence would have exceeded the ten-year minimum.

The Board held that the stop-time rule had been triggered because the combination of the two documents—the incomplete notice to appear and the notice of hearing with the previously omitted information—was the equivalent of a complete notice to appear. Given this application of the stop-time rule, the Board found that Mr. Banuelos’s period of continuous presence had been too short to qualify for cancellation of removal. So the Board denied his motion to remand.

2. We apply the abuse-of-discretion standard to the Board’s denial of the motion to remand.

Mr. Banuelos seeks judicial review of the denial of his motion to remand. We review the denial of this motion for an abuse of discretion. Neri-Garcia v. Holder , 696 F.3d 1003, 1009 (10th Cir. 2012). The Board abuses its discretion when it makes an error of law. Qiu v. Sessions , 870 F.3d 1200, 1202 (10th Cir. 2017).

The issue here involves a pure matter of law. Guadalupe v. Attorney Gen. , 951 F.3d 161, 163 (3d Cir. 2020). Mr. Banuelos’s motion to remand hinged on his qualification for cancellation of removal, which in turn hinged on whether the stop-time rule had been triggered by the combination of a deficient notice to appear and the notice of hearing.¹ We thus consider whether the Board made an error of law by applying the stop-time rule based on a combination of the deficient notice to appear and the notice of hearing.

3. We must decide whether to defer to the Board’s interpretation of § 1229.

To answer this legal question, we consider whether to give deference to the Board’s decision. The Board decided to apply the stop-time rule based on its interpretation of 8 U.S.C. § 1229. In the past, the Board had interpreted § 1229 to cover the combination of an incomplete notice to appear and a subsequent notice of hearing that contained the previously missing information. In re Mendoza-Hernandez , 27 I. & N. Dec. 520, 529 (BIA 2019) (en banc).

We must sometimes defer to the Board’s statutory interpretation under 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). See Afamasaga v. Sessions , 884 F.3d 1286, 1289 (10th Cir. 2018). To determine if we should defer to the Board, we first ask whether Congress has directly spoken on the issue. Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778. If Congress has not directly spoken on the issue, we consider whether the Board’s statutory interpretation was permissible. Id. at 843–44, 104 S.Ct. 2778.

4. Congress has directly spoken on whether the combination of a notice to appear and notice of hearing can trigger the stop-time rule.

In our view, Congress has directly spoken on the issue through unambiguous language in the pertinent statutes. Under this statutory language, the stop-time rule is not triggered by the combination of a defective notice to appear and a notice of hearing.

To determine whether Congress has directly spoken on the issue, we use "traditional tools of statutory construction." Chevron , 467 U.S. at 843 n.9, 104 S.Ct. 2778 (1984). Using these tools, we must determine whether "Congress had an intention on the precise question at issue." Id.

To ascertain this intention, we start with the statutory language. WildEarth Guardians v. U.S. Fish and Wildlife Serv. , 784 F.3d 677, 684 (10th Cir. 2015). Because this case involves the relationship between the stop-time rule ( 8 U.S.C. § 1229b(d)(1)(A) ) and the statutory requirements for notices to appear ( 8 U.S.C. § 1229(a) ), we examine the statutory language for both the stop-time rule and a notice to appear.

The stop-time rule provides that "continuous physical presence in the United States shall be deemed to end ... when the alien is served a notice to appear under § 1229(a) of this title." 8 U.S.C. § 1229b(d)(1)(A) (emphasis added). This sentence contains two clauses linked to the phrase "a notice to appear." The first clause states that the period of continuous presence ends "when" the noncitizen is served with "a notice to appear." Id. The word "when" signals an event (service of a notice to appear) that terminates the period of continuous presence. The second clause refers to a notice to appear "under" § 1229(a). The word "under" means "in accordance with" or "according to" § 1229(a). Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 2117, 201 L.Ed.2d 433 (2018). Based on these two clauses, the Supreme Court held that the stop-time rule is triggered only by the service of a notice to appear that satisfies § 1229(a). Id . at 2113–14.

Given this holding, we consider what § 1229(a) requires. Section 1229(a) says that "written notice (in this section referred to as a ‘notice to appear’) shall be given ... specifying" information that includes "[t]he time ... at which the proceedings will be held." 8 U.S.C. § 1229(a)(1). The Supreme Court has held that this statutory language defines a notice to appear as a document that includes the time of the removal hearing. Pereira , 138 S. Ct. at 2116–17. So a document omitting the time of the hearing is not considered a notice to appear. Id.

Mr. Banuelos was served with a document that did not specify either the date or time of the hearing. But the government argues that the combination of the incomplete notice to appear and a later notice of hearing could satisfy § 1229(a) and trigger the stop-time rule. We disagree.

The stop-time rule refers to "a notice to appear," using the singular article "a." This article ordinarily refers to one item, not two. See United States v. Hayes , 555 U.S. 415, 421, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (noting that a statute had "use[d] the word ‘element’ in the singular, suggesting "that Congress [had] intended to describe only one required element"). We would thus naturally read the statutory language for the stop-time rule ("a notice to appear") to involve a single document rather than a combination of two documents. Given this natural reading, the stop-time rule appears to unambiguously state that continuous presence ends only when the noncitizen is served with a single notice to...