Estrada-Cardona v. Garland

• Decision Date: 17 August 2022
• Docket Number: 21-9562
• Citation: 44 F.4th 1275
• Parties: Mayra Veronica ESTRADA-CARDONA, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

44 F.4th 1275

Mayra Veronica ESTRADA-CARDONA, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.

No. 21-9562

United States Court of Appeals, Tenth Circuit.

FILED August 17, 2022

Jennifer M. Smith of Jennifer Smith Law Office, Glenwood Spring, Colorado (Mark R. Barr of Lichter Immigration, Denver, Colorado, with her on the briefs), for Petitioner.

Keith McManus, Office of Immigration Litigation (Brian Boynton, Acting Assistant Attorney General, Civil Division; Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation; Spencer S. Shucard, Trial Attorney, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, D.C., for Respondent.

Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.

BALDOCK, Circuit Judge.

The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief "cancellation of removal." Under the statutory "stop-time rule," the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses.

8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of "What Triggers the Stop-Time Rule?" the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence.

I.

In 2002, Petitioner Mayra V. Estrada-Cardona entered the United States on a tourist visa which she subsequently overstayed. She resided in the United States with her two United States citizen children: A.E. and L.E. A.E. suffers from mental and physical disabilities, some of which are likely to be lifelong. While in the United States, Petitioner played a key role in ensuring A.E. received physical therapy and special education support—both vital to A.E.’s wellbeing and continued progress.

All was quiet until May 29, 2009, when police arrested Petitioner for driving without a license. She pleaded guilty and paid the associated fines. As a result of the traffic violation, Immigration and Customs Enforcement ("ICE") detained Petitioner and began removal proceedings. Pursuant to the then-prevailing practice, the Government issued Petitioner a notice to appear ordering her to appear before an immigration judge on a date and time "to be set." Five months later, the Government sent Petitioner a notice of hearing setting the date and time of her hearing.

At the hearing, Petitioner appeared unrepresented and conceded the charge contained in the notice to appear—rendering her removable. At the time, Petitioner was in the country for at most seven years, making her statutorily ineligible for any discretionary relief from removal. The immigration judge therefore ordered Petitioner to voluntarily depart the United States.

A month later, Petitioner filed a flurry of motions. One of these motions, a motion to stay the voluntary departure pending the resolution of her other motions, effectively converted her voluntary departure into a removal. See 8 C.F.R. § 1240.26(b)(3)(iii), (e)(1). Petitioner's other motions were denied by the BIA on January 23, 2013. Every year—from 2013 to 2017—Petitioner requested a stay of removal, and every year ICE approved her request. That is, until ICE denied her most recent request on December 28, 2017. ICE did not take any immediate action to remove Petitioner from the United States, only requiring her to attend regular check-ins at the local ICE office. ICE finally detained Petitioner and initiated removal on September 30, 2020.

In the period between the denial of Petitioner's request to stay removal and her removal, Petitioner filed two post-proceeding motions which set up the issue in this appeal. In what the parties call Motion II, Petitioner asked the BIA to reopen the removal proceedings pursuant to the then-recent Supreme Court case Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Based on Pereira , Petitioner continued to accrue presence for cancellation of removal—a form of discretionary relief the Attorney General can grant otherwise-removable aliens—even after receiving the notice to appear because it was not "a notice to appear under section 1229(a)." 8 U.S.C. § 1229b(d)(1)(A). The notice to appear failed to specify the "time and place at which the proceedings will be held." Id. § 1229(a)(1)(G)(i). Because the notice to appear did not stop the clock, Petitioner insisted that she had the requisite presence to be eligible for cancellation of removal because she had been in the country for 16 years. See § 1229b(b)(1)(A) (requiring 10 years of continuous physical presence in United States to be eligible for cancellation of removal). The BIA, recognizing the force of Petitioner's argument, found a new reason to cut Petitioner's presence short: the Government's subsequent notice of hearing detailing the time and place of the hearing "perfected" the initially defective notice to appear triggering the stop-time rule. See Matters of Mendoza-Hernandez and Capula-Cortes , 27 I. & N. Dec. 520, 529 (B.I.A. 2019). Because the notice of hearing "perfected" the notice to appear on October 28, 2009—seven years after Petitioner entered the United States—she was not, according to the BIA, eligible for cancellation of removal.

The BIA's notice-by-installment theory was short-lived. In 2020, we held "the stop-time rule is not triggered by the combination of an incomplete notice to appear and a notice of hearing." Banuelos-Galviz v. Barr , 953 F.3d 1176, 1184 (10th Cir. 2020). And in 2021, the Supreme Court agreed. Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021). After our decision in Banuelos-Galviz , Petitioner filed another post-proceeding motion—which the parties call Motion III—arguing once again that the BIA should reopen her proceedings given her apparent eligibility for cancellation of removal.¹ Dusting off its old precedent, the BIA invoked the so-called "final-order rule" to cut Petitioner's presence short. The stop-time rule's predecessor, the final-order rule cuts off presence when a final order of removal is issued. See In re Garcia , 24 I. & N. Dec. 179, 181 (B.I.A. 2007). Applying this rule, the BIA held Petitioner was not eligible for cancellation of removal because the immigration judge issued the order to voluntarily depart, which qualifies as a final order of removal, when Petitioner had accrued, at most, eight years of physical presence. Additionally, because Motion III was both time- and number-barred, 8 C.F.R. § 1003.2(c)(2) (limiting aliens to one motion to reopen filed no later than 90 days after the final administrative decision), the BIA concluded by declining to exercise sua sponte authority to reopen the proceedings and holding there were no extraordinary circumstances which would warrant equitable tolling. This petition for review followed.

II.

We have statutory jurisdiction to review the BIA's denial of a motion to reopen under 8 U.S.C. § 1252(a)(1) and 28 U.S.C. § 2342. Mata v. Lynch , 576 U.S. 143, 147, 135 S.Ct. 2150, 192 L.Ed.2d 225 (2015). Our statutory jurisdiction, however, is limited to reviewing constitutional or legal questions. See 8 U.S.C. § 1252(a)(2)(B), (D) ; Patel v. Garland , ––– U.S. ––––, 142 S. Ct. 1614, 1627, 212 L.Ed.2d 685 (2022).

We also have constitutional jurisdiction, but it demands a more detailed explanation. Article III limits the federal courts’ jurisdiction to certain "Cases" and "Controversies." Clapper v. Amnesty Int'l USA , 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). One element of the case-or-controversy requirement is that plaintiffs must establish they have standing to sue. Id. "The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches." Id. "To establish Article III standing, an injury must be ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’ " Id. at 409, 133 S.Ct. 1138 (quoting Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 149, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) ); see also Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of the jurisdictional doctrines." FW/PBS, Inc. v. City of Dall. , 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (cleaned up) (quotation omitted). Because of the statutory language at issue and Petitioner's removal to Mexico, it has become necessary to assure ourselves that Petitioner has standing—specifically, we must decide whether a determination in Petitioner's favor would likely redress her injury.² Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ; see also Spokeo, Inc. v. Robins , 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016).

The cancellation of removal statute states: "The Attorney General may cancel removal of, ... an alien who is inadmissible or deportable from the United States if 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 ." 8 U.S.C. § 1229b(b)(1) (emphasis added). If Petitioner was not removed and still in the United States, a determination in her favor would clearly enable her to return to the BIA and ask for reopening so that she can make an application for cancellation of removal. See id. But Petitioner's...