Bin v. Garland ( 2021 )

19-1836
Bin v. Garland
BIA
A078 257 662
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 29th 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 WEI SUN BIN, A.K.A. BIN SUN WEI,
14 Petitioner,
15
16 v. 19-1836
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jean Wang, Esq., Wang Law Office,
24 PLLC, Flushing, NY.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant
27 Attorney General; Jessica E.
28 Burns, Senior Litigation Counsel;
29 Claire L. Workman, Senior
30 Litigation Counsel, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is GRANTED.
9 Petitioner Wei Sun Bin, a native and citizen of the
10 People’s Republic of China, seeks review of a June 10, 2019,
11 decision of the BIA denying his motion to reconsider and
12 reopen. In re Wei Sun Bin, No. A 078 257 662 (B.I.A. June
13 10, 2019). We assume the parties’ familiarity with the
14 underlying facts and procedural history.
15 We review the BIA’s denial of motions to reconsider and
16 reopen for abuse of discretion. See Jian Hui Shao v. Mukasey,
17 546 F.3d 138, 168-69, 173 (2d Cir. 2008). It is undisputed
18 that Bin’s 2018 motion was untimely filed more than 15 years
19 after his 2002 removal order. 8 U.S.C. § 1229a(c)(6)(B) (30-
20 day deadline for motion to reconsider), (7)(C)(i) (90-day
21 deadline for motion to reopen). The BIA concluded that, even
22 if the untimely filing was excused, Bin failed to establish
23 his prima facie eligibility for cancellation of removal. See
2
1 INS v. Abudu, 485 U.S. 94, 104 (1988).
2 For a non-permanent resident, like Bin, to be eligible
3 for cancellation, he must have accrued 10 years of continuous
4 physical presence in the United States. 8 U.S.C.
5 § 1229b(b)(1)(A). In Pereira v. Sessions, the Supreme Court
6 held that the Immigration and Nationality Act unambiguously
7 requires a notice to appear (“NTA”) to include a hearing time
8 and place to trigger the “stop-time rule,” ending the accrual
9 of physical presence for cancellation. 138 S. Ct. 2105,
10 2113–20 (2018). After Pereira, the BIA held that when an NTA
11 omits hearing information, the accrual of time stops when the
12 missing information is provided in a hearing notice. See
13 Matter of Mendoza-Hernandez & Capula-Cortes, 27 I. & N. Dec.
14 520, 529 (B.I.A. 2019). The Supreme Court has since rejected
15 the BIA’s position, holding that an NTA that does not contain
16 a hearing date and time is not cured for purposes of the stop-
17 time rule by a subsequent notice of hearing that provides the
18 missing information. See Niz-Chavez v. Garland, 141 S. Ct.
19 1474, 1485–86 (2021) (requiring the Government to issue a
20 single NTA containing all statutorily required information
21 rather than providing the information in separate documents).
3
1 Accordingly, the BIA erred in determining that Bin failed
2 to establish his prima facie eligibility for cancellation
3 because he had not accrued the requisite physical presence.
4 See Abudu, 485 U.S. at 104. Further, although we lack
5 jurisdiction to review the BIA’s decision insofar as it
6 declined to reconsider or reopen proceedings sua sponte, see
7 Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006), we remand
8 when, as here, the BIA “misperceived the legal background and
9 thought, incorrectly, that a reopening would necessarily
10 fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009).1
11 For the foregoing reasons, the petition for review is
12 GRANTED, the BIA’s decision is VACATED, and the case is
13 REMANDED for further consideration in light of Niz-Chavez v.
14 Garland.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
1 The government does not argue, and we therefore do not consider, whether
Bin’s accrual of continuous presence was halted upon entry of a final order
of removal, but we do not foreclose consideration of this question on remand.
4