In re Yun-Xia Chen

• Decision Date: 11 January 2023
• Docket Number: 4057
• Citation: 28 I&N Dec. 676
• Parties: Matter of Yun-Xia CHEN, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

28 I&N Dec. 676

Matter of Yun-Xia CHEN, Respondent

No. 4057

Court of Appeals of U.S. Department of Justice Executive Office For Immigration Review Board of Immigration Appeals

January 11, 2023

U.S Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

(1) The "stop-time" rule under section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(1), is not triggered by the entry of a final removal order, but rather only by service of a statutorily compliant notice to appear or the commission of specified criminal offenses, in accordance with the plain language statutory analysis provided in Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021).

(2) Breaks in physical presence under section 240A(d)(2) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(2) continue to be interpreted as distinct from termination of physical presence under the stop-time rule. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000) followed.

(3) A respondent claiming a fundamental change in law as the basis for seeking sua sponte reopening must also establish prima facie eligibility for the relief sought. Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999) followed.

FOR THE RESPONDENT: Corey T. Lee, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Ji Ho H. Jahng, Assistant Chief Counsel

BEFORE: Board Panel: GREER, SAENZ, and LIEBMANN, Appellate Immigration Judges.

GREER, APPELLATE IMMIGRATION JUDGE

This case was last before us on July 26, 2005, when we dismissed the respondent's appeal from an Immigration Judge's decision ordering her removed. Relying on Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021), the respondent has now filed a motion to reopen her removal proceedings to apply for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(b)(1) (2018). The motion will be denied.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the People's Republic of China who entered the United States on July 19, 2001. The respondent attempted entry into this country as a returning United States citizen, presenting an immigration officer with a United States passport issued in another individual's name.

The Department of Homeland Security ("DHS") charged the respondent with inadmissibility under section 212(a)(6)(C)(ii) of the INA, 8 U.S.C. § 1182(a)(6)(C)(ii) (2000), for falsely representing herself as a United States citizen, and section 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2000), for seeking admission without valid immigration documents. The notice to appear, which was personally served on the respondent, did not comply with section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1) (2000), because, although it specified that her first hearing would take place at the San Pedro, California, Immigration Court, it did not include the date and time of this hearing. See INA § 239(a)(1)(G)(i), 8 U.S.C. § 1229(a)(1)(G)(i) (requiring a notice to appear to specify the "time and place" of the initial hearing).

The San Pedro Immigration Court served a notice of hearing on the respondent with the time and place of her initial hearing, and the respondent appeared for this hearing as scheduled. Venue was changed to the New York, New York, Immigration Court. The respondent conceded removability and applied for relief from removal. The Immigration Judge found the respondent removable as charged, denied her applications for relief, and ordered her removed to China. In 2005, we dismissed the respondent's appeal from the Immigration Judge's decision, resulting in an administratively final order of removal. See 8 C.F.R. § 1241.1(a) (2021).

On July 19, 2021, the respondent moved to reopen her removal proceedings, subsequent to the issuance of Niz-Chavez, which the Supreme Court of the United States issued on April 29, 2021. The respondent requests that we reopen on our own motion under 8 C.F.R. § 1003.2(a) (2021).^[1] She argues that pursuant to Niz-Chavez her noncompliant notice to appear did not trigger the so-called "stop-time" rule under section 240A(d)(1) of the INA, 8 U.S.C. § 1229b(d)(1) (2018), and thus she continues to accrue continuous physical presence in the United States for purposes of cancellation of removal under section 240A(b)(1)(A) of the INA, 8 U.S.C. § 1229b(b)(1)(A), even though she is subject to a final order of removal. She asserts that she can therefore establish the requisite 10 years of continuous physical presence.

DHS does not argue that the respondent ceased accruing continuous physical presence in this case. Instead, DHS argues that the motion should be denied because the respondent did not otherwise demonstrate prima facie eligibility for cancellation of removal.

Our adjudication of these two issues raised by the parties is dispositive of the motion. Accordingly, we do not reach other arguments made on appeal.

II. ANALYSIS

A. Applicability of the stop-time rule

To be eligible for cancellation of removal under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1), an applicant must establish, among other things, that she "has been physically present in the United States for a continuous period of not less than 10 years." INA § 240A(b)(1)(A), 8 U.S.C. § 1229b(b)(1)(A). Under the stop-time rule, which is entitled "Termination of Continuous Period,"

any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) . . . when the [applicant] is served a notice to appear under section 239(a), or (B) when the [applicant] has committed [certain criminal offenses], whichever is earliest.

INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).

In Matter of Camarillo, 25 I&N Dec. 644, 647 (BIA 2011), abrogated by Pereira v. Sessions, 138 S.Ct. 2105 (2018), we concluded that this provision is ambiguous as to whether it merely specifies the document DHS must serve to trigger the stop-time rule or imposes "substantive requirements for a notice to appear to be effective in order for that trigger to occur." We then held that under the stop-time rule, any period of continuous physical presence is deemed to end upon the service of a notice to appear, even if the notice to appear does not specify the time and date of the initial hearing. Id. at 651-52. The Supreme Court abrogated Matter of Camarillo in Pereira and held that, pursuant to the plain and unambiguous language of section 240A(d)(1) of the INA, 8 U.S.C. § 1229a(d)(1), a "notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a 'notice to appear under section [239(a)],' and so does not trigger the stop-time rule." Pereira, 138 S.Ct. at 2113-14; see also id. at 2114 ("The statutory text alone is enough to resolve this case.").

Following Pereira, we held in Matter of Mendoza-Hernandez and Capula-Cortez, 27 I&N Dec. 520, 535 (BIA 2019), overruled in part by Matter of M-F-O-, 28 I&N Dec. 408, 416 n.13 (BIA 2021), that "where a notice to appear does not specify the time and place of an . . . initial removal hearing, the subsequent service of a notice of hearing containing that information 'perfects' the deficient notice to appear, satisfies the notice requirements of section 239(a)(1) of the [INA], and triggers the 'stop-time' rule of section 240A(d)(1)(A) of the [INA]." The Supreme Court disagreed with this holding in Niz-Chavez, 141 S.Ct. at 1480. Looking again to the plain language of section 240A(d)(1) of the INA, 8 U.S.C. § 1229b(d)(1), the Court concluded that to trigger the stop-time rule a notice to appear must be a single document specifying the time and place of the hearing, and a noncompliant notice to appear missing time or place information cannot be cured by a subsequent notice of hearing specifying this information. Id. at 1480, 1484 (applying "th[e] statute's ordinary meaning").

Applying the plain language analysis from the Supreme Court in Niz-Chavez and Pereira, three circuit courts have found that the statutory text of section 240A(d)(1) unambiguously provides that only two discrete circumstances trigger the stop-time rule: (1) the service of a statutorily compliant notice to appear; or (2) the commission of certain, specified criminal offenses. Parada v. Garland, 48 F.4th 374, 377 (5th Cir. 2022) (per curiam); Estrada-Cardona v. Garland, 44 F.4th 1275, 1283-85 (10th Cir. 2022); Quebrado Cantor v. Garland, 17 F.4th 869, 873 (9th Cir. 2021). Because the entry of a final administrative order of removal is not one of the discrete circumstances enumerated by the statute, these courts concluded that a final order of removal does not trigger the stop-time rule. Parada, 48 F.4th at 377; Estrada-Cardona, 44 F.4th at 1283-85; Quebrado Cantor, 17 F.4th at 873.

We agree with these courts' ultimate conclusion and find, based on Supreme Court precedent, that section 240A(d)(1) of the INA, 8 U.S.C. § 1229b(d)(1), plainly and unambiguously provides that a final administrative order of removal does not trigger the stop-time rule. The only triggering events listed under this provision are a statutorily compliant notice to appear or the commission of certain criminal offenses. "The stop-time rule includes no mention of a final order of removal as a triggering event and it is not our role to rewrite the statute." Quebrado Cantor, 17 F.4th at 873. However, our statutory analysis is not limited to section 240A(d)(1) in isolation, because "plainness or ambiguity of statutory language is determined by reference to the language itself . . . and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (emphasis added).

The provision that immediately follows the stop-time rule is ...