Salcido-Rodriguez v. Garland ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 23, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
IRASEMA SALCIDO-RODRIGUEZ,
Petitioner,
v. No. 19-9602
(Petition for Review)
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
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ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, BRISCOE and BACHARACH, Circuit Judges.
_________________________________
Irasema Salcido-Rodriguez, a native and citizen of Mexico, petitions for
review of an order by the Board of Immigration Appeals (the Board) denying her
motion to reopen removal proceedings and consider an application for cancellation of
removal. We grant the petition for review and remand for further proceedings.
The immigration judge determined that Ms. Salcido-Rodriguez was not
eligible for cancellation of removal because she had not been present in the United
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
States for a “continuous period” of at least ten years before she was served with a
notice to appear. 8 U.S.C. § 1229b(b)(1)(A). Ms. Salcido-Rodriguez’s former
counsel filed a notice of appeal, but did not file a brief, and the Board summarily
dismissed the appeal.
Ms. Salcido-Rodriguez then moved to reopen in light of Pereira v. Sessions,
138 S. Ct. 2105, 2110 (2018), and her counsel’s ineffective assistance. She argued
that the notice of appeal served upon her was deficient under Pereira and did not
trigger the stop-time rule, so that she had accrued the required ten years of presence.
She further argued that her counsel was ineffective for failing to file a motion to
remand under Pereira. The Board recognized that under Pereira, the notice to
appear “would not stop [her] accrual of physical presence because it did not include
the time and place of her hearing.” R. at 2. But the Board reasoned that the
stop-time rule nevertheless applied because a subsequent notice of the time and place
of the hearing cured any defect in the notice to appear. It also rejected the
ineffective-assistance claim, in part reasoning that because of the stop-time rule,
Ms. Salcido-Rodriguez had not suffered prejudice from her former counsel’s failure
to move to remand.
After the Board’s decision, this court held that “the stop-time rule is triggered
by one complete notice to appear rather than a combination of documents.”
Banuelos-Galviz v. Barr, 953 F.3d 1176, 1178 (10th Cir. 2020), cert. denied,
2021 WL 1725170 (U.S. May 3, 2021) (No. 20-356). At the government’s request,
we then abated this matter when the Supreme Court agreed to consider the same
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stop-time issue in another case. The Supreme Court now has decided that case.
Consistent with Banuelos-Galviz, it held that the stop-time rule does not apply unless
the noncitizen is served with one complete notice to appear. See Niz-Chavez v.
Garland, 141 S. Ct. 1474, 1485, 1486 (2021).
Accordingly, the Board’s decision is no longer good law. We lift the
abatement, grant Ms. Salcido-Rodriguez’s petition for review, and remand for the
Board to consider the motion to reopen in light of Niz-Chavez and Banuelos-Galviz.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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