Villegas de Mendez v. Garland ( 2021 )

Case: 20-60175 Document: 00515905349 Page: 1 Date Filed: 06/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60175 June 18, 2021
Summary Calendar Lyle W. Cayce
Clerk
Leticia Villegas de Mendez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A078 555 934
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Leticia Villegas de Mendez, a native and citizen of Mexico, petitions
for review of an order of the Board of Immigration Appeals (BIA) denying
her motion to remand and dismissing her appeal of the order by the
immigration judge (IJ) denying reopening of her in absentia removal
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60175 Document: 00515905349 Page: 2 Date Filed: 06/18/2021
No. 20-60175
proceeding. For the following reasons, we will grant the petition and remand
to the BIA.
In May 2003, the Immigration and Naturalization Service (INS)
served Villegas de Mendez by mail with an ostensible notice to appear (NTA)
charging removability for having stayed longer than her nonimmigrant B-2
visa allowed. The NTA did not provide the date or time of the removal
hearing but instead stated that a hearing would later be set. Although the INS
later served Villegas de Mendez with a notice of hearing, she failed to appear,
and the IJ ordered her removed to Mexico because the INS had proved its
charge against her.
In May 2017, Villegas de Mendez moved to reopen on the basis that
she had not received notice of the scheduled hearing. The IJ denied the
motion on the basis that Villegas de Mendez failed to rebut the presumption
that she had received the INS’s properly mailed notices. Before the BIA,
Villegas de Mendez, citing Pereira v. Sessions, 138 S. Ct. 2105, 2110 (2018),
urged that her NTA was defective because it did not specify the date and time
of her hearing.
Additionally, Villegas de Mendez moved for remand to the IJ so that
she might apply for cancellation of removal, and thus adjustment of status,
available under 8 U.S.C. § 1229b(b)(1) to certain nonpermanent residents
who have been continuously present in the United States for not less than 10
years immediately before seeking cancellation of removal and satisfy other
statutory conditions. The 10-year period of physical presence in the United
States is deemed stopped or ended when the alien is served with a proper
NTA under 8 U.S.C. § 1229(a). See § 1229b(d)(1)(A). Villegas de Mendez
contended that she was prima facie eligible for that relief. See INS v. Abudu,
485 U.S. 94, 104 (1988); Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993). But
2
Case: 20-60175 Document: 00515905349 Page: 3 Date Filed: 06/18/2021
No. 20-60175
the BIA concluded that she had been given proper notice because the notice
of hearing cured the NTA’s failure to state the date and time of her hearing.
After the briefs were filed in this court, the Supreme Court ruled that
an NTA sufficient to trigger the stop-time rule must be a “single document
containing all the information an individual needs to know about his removal
hearing” specified in § 1229(a)(1). Niz-Chavez v. Garland, 141 S. Ct. 1474,
1478 (2021). The Court noted that § 1229(a) requires the document to
“specif[y] several things,” including “the nature of the proceedings against
the alien, the legal authority for those proceedings, the charges against the
alien, the fact that the alien may be represented by counsel, the time and place
at which the proceedings will be held, and the consequences of failing to
appear.” Id. at 1479 (internal quotation marks and citation omitted); see also
§ 1229(a)(1)(A)-(G). Niz-Chavez allows for service of that “single compliant
document” subsequent to service of an inadequate NTA. See 141 S. Ct. at
1485.
The NTA sent to Villegas de Mendez does not contain the
information required to trigger the stop-time rule. See id. at 1478-79, 1485;
see also § 1229(a)(1)(A)-(G). Neither does the subsequent notice of hearing
sent to her. Thus, she did not receive the “single compliant document”
required by statute. Niz-Chavez, 141 S. Ct. at 1485. The BIA consequently
abused its discretion by committing an error of law. See Koon v. United States,
518 U.S. 81, 100 (1996); Ramos-Portillo v. Barr, 919 F.3d 955, 958 (5th Cir.
2019); Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014). Therefore, the
petition for review is GRANTED and the case is REMANDED to the BIA
for further consideration in light of Niz-Chavez, 141 S. Ct. 1474, and
consistent with this judgment. The motion for stay, previously ordered
carried with the case, is DENIED as moot.
3