Montalvo-Montalvo v. Garland ( 2023 )

20-2758
Montalvo-Montalvo v. Garland
BIA
Ruehle, IJ
A098 322 976
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 8th day of August, two thousand twenty-three.
PRESENT:
JOSEPH F. BIANCO,
STEVEN J. MENASHI,
BETH ROBINSON,
Circuit Judges.
_____________________________________
JOSE GUADALUPE MONTALVO-
MONTALVO,
Petitioner,
v. 20-2758
NAC
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jose Perez, Esq., Syracuse, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
General; Keith I. McManus, Assistant Director;
Spencer S. Shucard, Trial Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is GRANTED in part and DENIED in part.
Petitioner Jose Guadalupe Montalvo-Montalvo, a native and citizen of Mexico,
seeks review of a July 20, 2020, decision of the BIA affirming an October 7, 2019, decision
of an Immigration Judge (“IJ”) denying Montalvo-Montalvo’s motion to reopen. In re
Jose Guadalupe Montalvo-Montalvo, No. A098 322 976 (B.I.A. July 20, 2020), aff’g No. A098
322 976 (Immig. Ct. Buffalo Oct. 7, 2019). We assume the parties’ familiarity with the
underlying facts and procedural history.
We have reviewed the IJ’s decision as modified by the BIA. See Xue Hong Yang v.
U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review the denial of a motion to
reopen for abuse of discretion. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir.
2008).
To reopen removal proceedings, Montalvo-Montalvo was required to file a motion
to reopen no later than 90 days after the date on which the final administrative decision
was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). It is undisputed
that Montalvo-Montalvo’s 2019 motion to reopen was untimely because it was filed 13
years after his 2006 removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.23(b)(1).
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The agency concluded that Montalvo-Montalvo’s motion did not warrant
equitable tolling, which would have excused the untimeliness of his motion insofar as he
sought to apply for cancellation of removal, because he had not accrued the ten years of
physical presence in the United States required for that relief. See 8 U.S.C.
§ 1229b(b)(1)(A). The agency appropriately concluded that Montalvo-Montalvo’s notice
to appear (“NTA”) was insufficient to stop his accrual of physical presence because it did
not include the time and date of his initial hearing, but concluded that defect was cured
when he received a hearing notice providing the missing information. As the
Government acknowledges, the Supreme Court rejected that position in Niz-Chavez v.
Garland, 141 S. Ct. 1474 (2021). Accordingly, the agency erred in concluding that
Montalvo-Montalvo’s accrual of presence stopped at the time of his hearing notice.
The Government, despite its concession of error, argues that remand would be
futile because Montalvo-Montalvo’s 2006 removal order stopped his accrual of physical
presence before he acquired the 10 years required for cancellation. In support of that
proposition, the Government relies on precedent from the BIA that relates to cases “prior
to the enactment of the ‘stop-time’ rule in section 240A(d)(1) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(d)(1).” In re Garcia, 24 I. & N. Dec. 179, 181 (B.I.A.
2007); see also In re Ortega-Cabrera, 23 I. & N. Dec. 793, 794 (B.I.A. 2005). After considering
§ 1229b(d)(1), however, the BIA has held that the statute “plainly and unambiguously
provides that a final administrative order of removal does not trigger the stop-time rule,”
which “is only triggered by the service of a compliant notice to appear or the commission
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of certain, specified criminal offenses.” Matter of Yun-Xia Chen, 28 I. & N. Dec. 676, 679,
681 (B.I.A. 2023). We cannot say that remand would be futile because of the BIA’s
interpretation of § 1229b(d)(1).
We also cannot say as a matter of law that remand would be futile due to the
untimeliness of Montalvo-Montalvo’s motion to reopen. The agency should determine
in the first instance whether Montalvo-Montalvo acted diligently in moving to reopen in
2019 following the United States Supreme Court’s 2018 decision in Pereira v. Sessions, 138
S. Ct. 2105 (2018). See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (explaining that this
Court “is powerless to affirm the administrative action by substituting what it considers
to be a more adequate or proper basis” than the one on which the agency relied”).
Accordingly, we grant the petition to the extent it challenges the denial of reopening to
apply for cancellation of removal and remand for the agency to correct its error. See INS
v. Orlando Ventura, 537 U.S. 12, 16 (2002) (“Generally speaking, a court of appeals should
remand a case to an agency for decision of a matter that statutes place primarily in agency
hands.”).
We deny the petition to the extent that Montalvo-Montalvo challenges the
agency’s denial of his motion to reopen to apply for asylum and related relief. Although
the time limit for motions to reopen does not apply if reopening is sought to apply for
asylum and the motion is “based on changed country conditions,” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii), Montalvo-Montalvo did not
establish such conditions because he did not submit country conditions evidence or
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provide dates for the alleged harm his family suffered, see Tanusantoso v. Barr, 962 F.3d
694, 698 & n.10 (2d Cir. 2020) (relying on In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)
(“In determining whether evidence accompanying a motion to reopen demonstrates a
material change in country conditions that would justify reopening, [the BIA] compare[s]
the evidence of country conditions submitted with the motion to those that existed at the
time of the merits hearing below.”)). Nor did Montalvo-Montalvo demonstrate that he
warranted equitable tolling to permit him to reopen to apply for asylum and related relief
because he did not allege facts showing that he was prevented from applying for such
relief in his underlying proceedings. See Iavorski v. U.S. INS, 232 F.3d 124, 129 (2d Cir.
2000) (“Equitable tolling applies as a matter of fairness where a party has been prevented
in some extraordinary way from exercising his rights.” (quotation marks and brackets
omitted)); see also Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (“The word ‘prevent’
requires the petitioner to demonstrate a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and the lateness of a filing.”).
For the foregoing reasons, the petition for review is GRANTED in part and
DENIED in part. All pending motions and applications are DENIED and stays
VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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