Marcos Ordaz-Gonzalez v. Eric H. Holder Jr. , 533 F. App'x 752 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS ORDAZ-GONZALEZ, No. 08-72639
Petitioner, Agency No. A077-076-421
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
MARCOS ORDAZ-GONZALEZ, No. 08-75051
Petitioner, Agency No. A077-076-421
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 3, 2013
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TROTT and W. FLETCHER, Circuit Judges, and STEIN, District Judge.**
An Immigration Judge (“IJ”) denied Marcos Ordaz-Gonzalez’s (“Ordaz”)
application for cancellation of removal and ordered him removed. Ordaz appealed
to the Board of Immigration Appeals (“BIA”), which dismissed his appeal and
denied his subsequent motion to reconsider. Ordaz now petitions for review of
those BIA orders, and we have jurisdiction pursuant to 8 U.S.C. § 1252(a).
Because Ordaz and the government both agree that the BIA should reconsider his
arguments in light of intervening case law, we remand to the BIA without
addressing the merits.
The IJ found Ordaz ineligible for cancellation because he had not accrued
ten years of continuous physical presence in the United States, as required by 8
U.S.C. § 1229b(b)(1)(A), and the BIA adopted the IJ’s decision. The IJ found that
Ordaz began accruing physical presence time in 1990, but stopped accruing time
pursuant to the so-called “stop-time rule” when he was served a notice to appear
(“NTA”) in 1998. See 8 U.S.C. § 1229b(d)(1). The stop-time rule provides that
continuous presence is “deemed to end . . . when the alien is served a notice to
appear under [8 U.S.C. §] 1229(a).” Id. Ordaz claims that service of the 1998 NTA
**
The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
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did not end his presence pursuant to the stop-time rule because that rule is
triggered only by an NTA that (1) is the charging document for the removal
proceedings and (2) contains the information specified in 8 U.S.C. § 1229(a)(1).
For support, Ordaz points to In re Cisneros-Gonzalez, 23 I. & N. Dec. 668
(BIA 2004) (en banc), and Garcia-Ramirez v. Gonzales, 423 F.3d 935, 937 n.3 (9th
Cir. 2005) (per curiam). In Cisneros-Gonzalez, the BIA “conclude[d] that the
‘notice to appear’ referred to in [the stop-time rule] pertains only to the charging
document served in the proceedings in which the alien applies for cancellation of
removal, and not to charging documents served on the alien in prior proceedings.”
23 I. & N. Dec. at 672. Because the government proceeded below on a different
NTA that was served in 2004 and had never filed the 1998 NTA with the
immigration court, Ordaz argues that the 1998 NTA could not have triggered the
stop-time rule.
In Garcia-Ramirez, this Court observed that an alien’s continuous physical
presence terminated not when he was served an NTA but when he received a
subsequent notice that specified the hearing time and location. 423 F.3d at 937 n.3
(citing 8 U.S.C. § 1229(a)(1)). Ordaz contends that because the 1998 NTA
similarly lacked the hearing time and location that section 1229(a)(1)(G)(i)
requires, and because he was never notified of a hearing on his 1998 NTA, that
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NTA was never served “under section 1229(a)” within the meaning of the stop-
time rule. See 8 U.S.C. § 1229b(d)(1) (emphasis added). Thus, Ordaz argues, both
Cisneros-Gonzalez and Garcia-Ramirez support his claim that he continued to
accrue time after service of the 1998 NTA and that the IJ therefore erred in finding
him statutorily ineligible for cancellation of removal based on the 1998 NTA.
The Court declines to consider the merits of Ordaz’s claim because the
parties agreed at oral argument that the Court should remand to the BIA to consider
both of these arguments in light of developments in the law while this appeal was
pending. Most notably, the BIA in 2011 found the stop-time rule ambiguous and
invoked Chevron deference to construe the statute. See Matter of Camarillo, 25 I.
& N. Dec. 644, 651 (BIA 2011) (citing Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984)). Under Camarillo, presence is deemed to end
when an alien is served an NTA even if the NTA lacks the hearing time and
location—at least if that information is later provided and the NTA is the operative
charging document in the removal proceedings. Id. at 652; but cf. Guamanrrigra v.
Holder, 670 F.3d 404, 410 (2d Cir. 2012) (per curiam) (deeming presence to end
not when NTA lacking hearing details was served, but when subsequent hearing
notice was served).
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Accordingly, we grant the petition for review of the dismissal of Ordaz’s
appeal, No. 08-72639, and remand to the BIA for reconsideration. Because we
grant that petition, we need not address the BIA’s denial of his motion to
reconsider the dismissal of that appeal. Thus, we dismiss petition No. 08-75051 as
moot. See Moran-Enriquez v. INS, 884 F.2d 420, 423 n.2 (9th Cir. 1989).
Petition for review No. 08-72639 is GRANTED. The May 29, 2008 order of
the BIA is therefore VACATED, and the case REMANDED. Petition for review
No. 08-75051 is DISMISSED as moot.
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