Quebrado Cantor v. Garland

• Decision Date: 03 November 2021
• Docket Number: No. 19-73085,19-73085
• Parties: Domingo QUEBRADO CANTOR, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

17 F.4th 869

Domingo QUEBRADO CANTOR, Petitioner,

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

No. 19-73085

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 30, 2021 Seattle, Washington

Filed November 3, 2021

Luis Cortes Romero (argued), Novo Legal Group PLLC, Kent, Washington; Elaine Ruth Fordyce, Law Office of Shara Svendsen PLLC, Mill Creek, Washington; for Petitioner.

Lance L. Jolley (argued), Trial Attorney; Anthony C. Payne, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Michael Daly Hawkins, M. Margaret McKeown, and Ronald M. Gould, Circuit Judges.

McKEOWN, Circuit Judge:

This appeal requires us to address, yet again, application of the "stop-time rule" in immigration proceedings. Nonpermanent residents subject to removal may apply to the Attorney General for cancellation of removal. To be eligible, a nonpermanent resident must have "been physically present in the United States for a continuous period of not less than 10 years." 8 U.S.C. § 1229b(b)(1)(A). The question is what circumstances serve to stop the accrual of time. By statute, nonpermanent residents cease to accrue physical presence (1) once they are "served a notice to appear" or (2) if they commit certain crimes. Id. § 1229b(d)(1). Domingo Quebrado Cantor ("Quebrado") alleges he was physically present in this country for twelve years when he sought to reopen his immigration proceedings to apply for cancellation of removal. The Board of Immigration Appeals ("BIA") saw it differently and denied Quebrado's request, reasoning that the stop-time rule was triggered when Quebrado received a final order of removal four years prior to his motion to reopen. By its terms, however, the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither. Because the BIA's decision was contrary to the text of the statute, we grant the petition and remand to the BIA for further proceedings.

BACKGROUND

Domingo Quebrado Cantor is a native and citizen of Mexico who entered the United States without inspection in 2006. The United States Department of Homeland Security commenced removal proceedings against him and served him with a notice to appear in 2011. The notice to appear did not include the time or place of the proceedings; rather, Quebrado was directed to appear "on a date to be set at a time to be set." Quebrado was later served with a notice that specified a date, time, and place for his hearing. Quebrado appeared at the hearing. In due course, Quebrado conceded removability, and pursued asylum, voluntary departure, and Deferred Action for Childhood Arrivals. The immigration judge ("IJ") denied Quebrado's asylum application and ordered him removed if he failed to depart voluntarily. The BIA affirmed, and we denied Quebrado's petition for review.

In 2018, the Supreme Court concluded that, in order to trigger the stop-time rule, a notice to appear must include the "time and place" of the removal proceedings. Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 2113, 201 L.Ed.2d 433 (2018) (quoting 8 U.S.C. § 1229(a)(1)(G)(i) ). Following this decision, Quebrado moved to reopen his immigration proceedings before the BIA for the purpose of applying for cancellation of removal. He argued that because his notice to appear lacked a time and place, it was defective and did not stop accrual of continuous physical presence. By Quebrado's calculation, he had accrued continuous physical presence since his arrival in the United States in 2006 and was statutorily eligible for cancellation of removal.

The BIA denied Quebrado's motion to reopen. The government argued that the subsequent notice of hearing received by Quebrado had cured any defect in the initial notice to appear. Somewhat presciently however, the BIA declined to adopt the government's argument. Rather, the BIA's sole basis for denying Quebrado's motion to reopen was its conclusion that "[c]ontinuous physical presence ceases to accrue at the entry of a final administrative decision." Because a final order of removal was issued for Quebrado in 2014, the BIA determined that he "fell short of meeting the requisite continuous physical presence for cancellation of removal." We have jurisdiction to review Quebrado's petition because the BIA rested its denial of reopening on legal grounds. See Bonilla v. Lynch , 840 F.3d 575, 588 (9th Cir. 2016).

ANALYSIS

Noncitizens subject to removal may apply for permission to remain in the United States so long as they meet the statutory criteria for cancellation of removal under 8 U.S.C. § 1229b. These noncitizens are eligible for cancellation of removal if, among other things, they have "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).

Historically, a noncitizen "continued to accrue time toward the presence requirement during the pendency of his removal proceedings." Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 1478–79, 209 L.Ed.2d 433 (2021). Some questioned, however, whether this practice could create an incentive to needlessly delay removal proceedings. See id. at 1479. "In [the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009–546], Congress responded to these concerns with a new ‘stop-time’ rule." Id. That rule provides:

For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.

8 U.S.C. § 1229b(d)(1).

Despite its apparent simplicity, the rule "has generated outsized controversy." Niz-Chavez , 141 S. Ct. at 1479. Recently, much of that controversy has focused on what constitutes "a notice to appear" within the meaning of subsection (A). The statute defines a notice to appear as a "written notice ... specifying," among other things, the "time and place" of the noncitizen's removal hearing. 8 U.S.C. § 1229(a)(1). In defiance of this clear statutory instruction, the government's practice for many years was to issue notices that failed to specify these necessary details. See Pereira , 138 S. Ct. at 2111–12. The Supreme Court put an end to this practice in Pereira and Niz-Chavez , brushing aside the government's policy arguments and emphasizing that "pleas of administrative inconvenience" can "never ‘justify departing from the statute's clear text.’ " Niz-Chavez , 141 S. Ct. at 1485 (quoting Pereira , 138 S. Ct. at 2118 ).

In Pereira , the Court held that a notice that fails to designate the "time and place" of a removal hearing "is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule." 138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1) ). And, in the follow-on case— Niz-Chavez —the Court held that the government could not cure a deficient notice to appear by later sending a letter specifying the hearing's time and place, explaining that subsection (A) unambiguously required the government to "serve ‘a’ notice containing all the information Congress has specified," and "not a mishmash of pieces with some assembly required." 141 S. Ct. at 1480 (quoting 8 U.S.C. § 1229b(d)(1) ). In both decisions, the Court found the text of the statute to be dispositive. See id. at 1484 (applying "the statute's ordinary meaning"); Pereira , 138 S. Ct. at 2114 ("The statutory text alone is enough to resolve this case."). In so doing, the Court stressed that courts must "exhaust ‘all the textual and structural clues’ " bearing on a statute's meaning and emphasized that, where "exhausting those clues enables us to resolve the interpretive question put to us, our ‘sole function’ is to apply the law as we find it, not defer to some conflicting reading the government might advance." Niz-Chavez , 141 S. Ct. at 1480 (citation omitted).

The lesson of Pereira and Niz-Chavez is clear: the government may not "short-circuit the stop-time rule," id. at 1479, by invoking administrative deference in the face of an otherwise unambiguous statutory command. In other words, "[t]he language of [the] statute is controlling when the meaning is plain and unambiguous." United States v. Maria-Gonzalez , 268 F.3d 664, 668 (9th Cir. 2001) (citing Aragon-Ayon v. I.N.S. , 206 F.3d 847, 851 (9th Cir. 2000) ); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.").

The Court's emphasis on the language of this statute informs our analysis here. The precise question we consider is whether a final order of removal serves to invoke the stop-time rule. It does not. The language setting out the stop-time rule is unambiguous: a nonpermanent resident's "period of continuous [physical presence] is ‘deemed to end’ upon the earlier of two events, which are spelled out in subsections (A) and (B) of the rule." Jaghoori v. Holder , 772 F.3d 764, 767 (4th Cir. 2014). Under subsection (A), a noncitizen's presence is deemed to end when the government serves a notice to appear. Under subsection (B), a noncitizen's presence is deemed to end upon the commission of an enumerated offense. Put another way, "time will stop accruing when the ...