Wang v. Garland ( 2021 )

19-3736
Wang v. Garland
BIA
A078 038 217
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 16th day of December, two thousand twenty-
5 one.
6
7 PRESENT:
8 JOSÉ A. CABRANES,
9 REENA RAGGI,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 WEIWEN WANG, AKA WEI-WEN WANG,
15 Petitioner,
16
17 v. 19-3736
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Stuart Altman, Esq., Law Office
25 of Stuart Altman, New York, NY.
26
27 FOR RESPONDENT: Brian M. Boynton, Acting
28 Assistant Attorney General; Claire
29 L. Workman, Senior Litigation
30 Counsel; Rosanne M. Perry, Trial
31 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 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 Weiwen Wang, a native and citizen of the
10 People’s Republic of China, seeks review of an October 17,
11 2019, decision of the BIA denying his motion to reopen. In
12 re Weiwen Wang, No. A 078 038 217 (B.I.A. Oct. 17, 2019). We
13 assume the parties’ familiarity with the underlying facts and
14 procedural history.
15 We review the denial of a motion to reopen for abuse of
16 discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–
17 69 (2d Cir. 2008). Contrary to Wang’s argument, the BIA did
18 not deny his motion as untimely but rather, assumed
19 timeliness, and denied it on the merits. The BIA may deny a
20 motion to reopen if the movant fails to establish his prima
21 facie eligibility for the underlying relief sought. See INS
22 v. Abudu, 485 U.S. 94, 104 (1988).
23 For a non-permanent resident, like Wang, to be eligible
24 for cancellation, he must have accrued ten years of continuous
2
1 physical presence in the United States. 8 U.S.C.
2 § 1229b(b)(1)(A). In Pereira v. Sessions, the Supreme Court
3 held that the Immigration and Nationality Act unambiguously
4 requires a notice to appear (“NTA”) to include a hearing time
5 and place to trigger the “stop-time rule” and halt the accrual
6 of physical presence. 138 S. Ct. 2105, 2113–14 (2018).
7 After Pereira, the BIA held that when an NTA omits hearing
8 information, the accrual of time stops when the missing
9 information is subsequently provided. See Matter of Mendoza-
10 Hernandez, 27 I. & N. Dec. 520, 529 (B.I.A. 2019).
11 In Niz-Chavez, the Supreme Court rejected the BIA’s
12 position, holding that a subsequent notice of a hearing’s
13 date, time, and place does not cure a NTA which lacked this
14 information for purposes of the stop-time rule. See Niz-
15 Chavez v. Garland, 141 S. Ct. 1474, 1485–86 (2021). Rather,
16 the Supreme Court required that the Government issue a single
17 NTA containing all statutorily required information if it was
18 to invoke the stop-time rule. Id. In light of Niz-Chavez,
19 the BIA erred in determining that the stop-time rule was
20 triggered as to Wang upon the December 22, 1999 service of a
21 Notice of Hearing, which provided his hearing’s date and time,
22 and, therefore, holding that Wang prima facie failed to
3
1 satisfy the eligibility requirement of ten years continuous
2 presence for cancellation of removal. See 8 U.S.C.
3 § 1229b(b)(1)(A); Abudu, 485 U.S. at 104.
4 Wang’s remaining argument that the agency lacked
5 jurisdiction over his removal proceedings is foreclosed by
6 Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019).
7 In Banegas Gomez, we held that Pereira addresses a “narrow
8 question” regarding the stop-time rule and does not “void
9 jurisdiction in cases in which an NTA omits a hearing time or
10 place.” Id. at 110 (internal quotation marks omitted). The
11 Supreme Court’s ruling in Niz-Chavez similarly focuses on the
12 stop-time rule, and does not address the agency’s
13 jurisdiction, which is governed by regulation not the
14 statutory provision relevant to the stop-time rule. See Niz-
15 Chavez, 141 S. Ct. at 1481; Banegas Gomez, 922 F.3d at 111–
16 12. 1
17 For the foregoing reasons, the petition for review is
18 GRANTED, the BIA’s October 17, 2019 decision is VACATED, and
19 this case is REMANDED to the BIA for further proceedings. All
1 The government does not argue, and we therefore do not consider, whether
Wang’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
1 pending motions and applications are DENIED and stays
2 VACATED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe,
5 Clerk of Court
5