Liao v. Garland ( 2021 )

19-3819
Liao v. Garland
BIA
A078 213 203
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 22nd day of November, two thousand twenty-one.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 REENA RAGGI,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 GUO MEI LIAO,
14 Petitioner,
15
16 v. 19-3819
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jed S. Wasserman, Law Office of Ng
24 & Wasserman, PLLC, New York, NY.
25
26 FOR RESPONDENT: Jeffrey Clark, Acting Assistant
27 Attorney General; Anna E. Juarez,
28 Senior Litigation Counsel; Jeffrey
29 R. Meyer, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Guo Mei Liao, a native and citizen of the
6 People’s Republic of China, seeks review of an October 23,
7 2019, decision of the BIA denying her motion to reconsider
8 and reopen. In re Guo Mei Liao, No. A 078 213 203 (B.I.A.
9 Oct. 23, 2019). We assume the parties’ familiarity with the
10 underlying facts and procedural history.
11 We review the BIA’s denial of motions to reconsider and
12 reopen for abuse of discretion. See Jian Hui Shao v. Mukasey,
13 546 F.3d 138, 168-69, 173 (2d Cir. 2008). Liao’s 2018 motion
14 was untimely filed more than 16 years after her 2002 removal
15 order. See 8 U.S.C. § 1229a(c)(6)(B) (30-day deadline for
16 motion to reconsider), (7)(C)(i) (90-day deadline for motion
17 to reopen). Liao argues that the BIA should have excused the
18 time limit in light of Pereira v. Sessions, 138 S. Ct. 210519 (2018), but the BIA alternatively determined that
20 reconsideration and reopening were not warranted because Liao
21 failed to establish either her prima facie eligibility for
2
1 cancellation of removal as required to reopen or exceptional
2 circumstances that warranted reopening sua sponte. See INS
3 v. Abudu, 485 U.S. 94, 104 (1988) (failure to establish prima
4 facie eligibility for relief is an independent basis for
5 denying motion to reopen); In re J-J-, 21 I. & N. Dec. 976,
6 984 (B.I.A. 1997) (the BIA's power to reopen proceedings sua
7 sponte in exceptional situations is not meant for
8 circumventing regulations where enforcing them might result
9 in hardship).
10 For a non-permanent resident, like Liao, to be eligible
11 for cancellation, she must have accrued 10 years of continuous
12 physical presence in the United States. 8 U.S.C.
13 § 1229b(b)(1)(A). In Pereira, the Supreme Court held that
14 the Immigration and Nationality Act unambiguously requires a
15 notice to appear (“NTA”) to include a hearing time and place
16 to trigger the “stop-time rule,” ending the accrual of
17 physical presence. 138 S. Ct. at 2113–20. After Pereira,
18 the BIA held that when an NTA omits this information, the
19 accrual of time stops when the missing information is
20 provided. See Matter of Mendoza-Hernandez & Capula-Cortes,
21 27 I. & N. Dec. 520, 529 (B.I.A. 2019).
3
1 The Supreme Court has since rejected the BIA’s position,
2 holding that an NTA missing a hearing date and time is not
3 cured for purposes of the stop-time rule by a subsequent
4 notice providing the missing information. See Niz-Chavez v.
5 Garland, 141 S. Ct. 1474, 1485–86 (2021) (requiring the
6 Government to issue a single NTA containing all statutorily
7 required information rather than providing the information in
8 separate documents). Here, Liao's May 30, 2001 NTA failed
9 to provide the statutorily required date and time for her
10 hearing. Under Niz-Chavez, Liao's subsequent June 25, 2001
11 notice of hearing, which eventually provided the date and
12 time for her hearing, was insufficient to cure the original
13 notice's defect. Accordingly, her original NTA did not stop
14 her accrual of continuous physical presence.
15 Furthermore, the BIA failed to adequately explain its
16 conclusion that Liao’s removal order ended her accrual of
17 physical presence because the Immigration and Nationality Act
18 states that accrual of physical presence ends with service of
19 an NTA or commission of certain criminal offenses, and the
20 BIA did not cite any binding authority for its conclusion
21 that a removal order stops the time. See 8 U.S.C.
4
1 § 1229b(d)(1) (providing that the accrual of continuous
2 physical presence ends only upon (1) service of a statutorily
3 sufficient NTA or (2) commission of certain criminal offenses
4 enumerated under 8 U.S.C. § 1182(a)(2)). Therefore, the BIA
5 erred in so determining that Liao failed to establish her
6 prima facie eligibility for cancellation because she had not
7 accrued the requisite physical presence. See Abudu, 485 U.S.
8 at 104.
9 Liao’s remaining argument that the agency lacked
10 jurisdiction over her removal proceedings is foreclosed by
11 Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019).
12 In Banegas Gomez, we held that Pereira addressed a narrow
13 question regarding the stop-time rule and does not “void
14 jurisdiction in cases in which an NTA omits a hearing time or
15 place.” 922 F.3d at 110. The Supreme Court’s ruling in
16 Niz-Chavez similarly focuses on the stop-time rule, and does
17 not address the IJ’s jurisdiction, which is governed by
18 regulation not the statutory provision relevant to the stop-
19 time rule. See Niz-Chavez, 141 S. Ct. at 1480–81; see also
20 Banegas Gomez, 922 F.3d at 111–12.
21 For the foregoing reasons, the petition for review is
5
1 GRANTED. All pending motions and applications are DENIED and
2 stays VACATED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe,
5 Clerk of Court
6