Bun Cheat v. William P. Barr ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0078n.06
Case No. 19-3476
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 03, 2020
BUN CCHAY CHEAT, )
DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General, ) APPEALS
)
Respondent-Appellee, )
) OPINION
BEFORE: MERRITT, CLAY, and GRIFFIN, Circuit Judges.
CLAY, Circuit Judge. Petitioner Bun Cchay Cheat, a noncitizen, appeals an order of the
Board of Immigration Appeals (BIA), dated May 15, 2019, denying his motion to reopen removal
proceedings. Cheat sought to reopen removal proceedings because the Notice to Appear that
initiated proceedings against him in November 2009 was defective because it did not include the
date and time of his hearing. Cheat argues that the Supreme Court’s decision in Pereira v. Sessions,
— U.S. —, 138 S. Ct. 2105 (2018), prevents the BIA from curing its defective Notice to Appear
with a subsequent Notice of Hearing. However, in Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir.
2019), we held precisely the opposite. Because this Court has already rejected the narrow legal
ground that Cheat claims justifies reversing the BIA’s order, a point acknowledged by Cheat in his
reply brief, we DENY Cheat’s petition for review.
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I. BACKGROUND
Petitioner Bun Cchay Cheat is a native and citizen of Cambodia. On August 21, 2001, he
entered the United States on a C1 visa as a nonimmigrant in transit. He was permitted to remain in
the United States until September 28, 2002. He failed to leave by that time. However, it was not
until November 2009, that the Department of Homeland Security (DHS) issued a Notice to Appear
(NTA) to Cheat, thereby initiating removal proceedings against him. The NTA asserted that Cheat
had sought to obtain permanent resident status via fraud or material misrepresentation.
Importantly, the NTA did not specify a date or time for a removal hearing. This was rectified on
November 13, 2009, when the Immigration Court sent Cheat a Notice of Hearing, directing him
to appear on April 21, 2010.
On that date, the Immigration Court sent Cheat another notice, this one informing him that
he must appear on June 23, 2010 for a hearing. In response, Cheat denied that he was subject to
removability based upon the grounds alleged in the NTA. On April 26, 2010, DHS amended the
NTA to withdraw the fraud charge and add a charge that Cheat was subject to removal because he
had remained in the United States longer than permitted by his visa. At the June 23 hearing, Cheat,
through counsel, conceded that he was subject to removal. The Immigration Judge presiding over
the hearing issued a removal order. Cheat did not appeal this order.
Cheat filed his first motion to reopen with the Immigration Court on January 16, 2014. He
alleged that changed country conditions in Cambodia made Cheat eligible for asylum and
withholding of removal. On March 31, 2014, the Immigration Court denied his motion to reopen.
Cheat filed an appeal with the BIA, which the BIA dismissed on May 27, 2015. This Court
subsequently denied Cheat’s petition for review of the BIA’s dismissal order. Cheat v. Lynch, No.
15-3678 (6th Cir. Mar. 10, 2016) (order).
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Cheat filed a second motion to reopen before the BIA on September 18, 2018. This motion
was based upon the Supreme Court’s recent decision in Pereira v. Sessions. In it, Cheat argued
that the stop-time rule was inapplicable because the NTA did not contain the date and time of his
hearing. Cheat further contended that his motion should be considered timely because it was filed
within ninety days of the Supreme Court’s decision in Pereira and so the statutory period for filing
motions to reopen should be equitably tolled.
On May 15, 2019, the BIA denied Cheat’s second motion to reopen. Rather than address
Cheat’s equitable tolling argument, it rejected his motion on the merits. According to the BIA,
because Cheat was served with a Notice of Hearing before he was present in the United States for
ten years, the arguably defective NTA was perfected. Therefore, the stop-time rule applied, and
Cheat would be ineligible for cancellation of removal in any event. This timely petition for review
followed.
II. DISCUSSION
A. Standard of Review
This Court reviews the denial of a motion to reopen for an abuse of discretion. Trujillo
Diaz v. Sessions, 880 F.3d 244, 248 (6th Cir. 2018); Sako v. Gonzales, 434 F.3d 857, 863 (6th Cir.
2006). However, questions of law involving immigration proceedings are reviewed de novo.
Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006).
B. The Motion to Reopen
The Attorney General may cancel the removal of a noncitizen who is inadmissible or
deportable from the United States if the noncitizen establishes, inter alia, that she “has been
physically present in the United States for a continuous period of not less than 10 years
immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(1)(A). However, “any
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period of continuous residence or continuous physical presence in the United States shall be
deemed to end . . . when the alien is served a notice to appear under section 1229(a) of this title.”
8 U.S.C. § 1229b(d)(1). This latter provision is known as the “stop-time rule” and it presents the
chief roadblock to Cheat’s motion to reopen. Because he was served with a Notice to Appear in
2009—less than ten years after he entered the United States in 2001—it would seem to preclude
his eligibility for cancellation of removal under § 1229b(b)(1)(A). In other words, the NTA, if
valid, stopped the time from running before Cheat could satisfy the ten-year continuous presence
requirement to be eligible for cancellation of removal.
Cheat contends that the Supreme Court’s recent decision in Pereira v. Sessions breathes
life into his motion. In Pereira, the Supreme Court held that “[a] putative notice to appear that fails
to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to
appear under section 1229(a),’ and so does not trigger the stop-time rule.” Id. at 2113–114.
Because Cheat’s Notice to Appear indisputably did not include a date and time of his removal
hearing, it would seem that it did not trigger the stop-time rule.1
Unfortunately for Cheat, this Court has already rejected his line of reasoning. Very
recently, in Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019), we held that “written
communications to a noncitizen in multiple components or installments may collectively provide
all the information necessary to constitute ‘a notice to appear’ under 8 U.S.C. § 1229b(d).” Id. at
201. As a result, “the government triggers the stop-time rule when it sends a noncitizen all the
1
Cheat expressly does not challenge the Immigration Court’s jurisdiction over his case. As Cheat
acknowledges, this Court has held that the failure to include the time and date of removal
proceedings does not divest an Immigration Judge of jurisdiction over the removal proceedings.
Hernandez-Perez v. Whitaker, 911 F.3d 305, 314–15 (6th Cir. 2018) (holding that “jurisdiction
vests with the immigration court where, as here, the mandatory information about the time of the
hearing . . . is provided in a Notice of Hearing issued after the NTA”).
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required categories of information under § 1229(a)(1)(A)-(G) through one or multiple written
communications.” Id.
That is precisely what occurred in this case. The information contained in the November
2009 NTA was incomplete, but the government cured this deficiency with its subsequent notice to
appear indicating the date and time of Cheat’s hearing. And because this all occurred before Cheat
was physically present in the United States for ten years, he is not eligible for cancellation of
removal under 8 U.S.C. § 1229b(b)(1)(A). Garcia-Romo decided that this practice comports with
the requirements of the stop-time rule. In fact, the petitioner in Garcia-Romo was in a situation
virtually identical to Cheat’s. He received an NTA in February 2012 that did not include a date
and time for his hearing, followed by a Notice of Hearing in April 2012 providing the missing
information. Id. at 197. As discussed above, we rejected the petitioner’s claim that the stop-time
rule was not triggered once the Notice of Hearing issued and identified the date and time of his
hearing.
Therefore, Garcia-Romo clearly controls our decision in the present case. For his part,
Cheat recognizes that this recent precedent defeats his claim. In his reply brief he states, “Petitioner
recognizes that the panel is bound by Garcia-Romo but is raising the issue to preserve it for further
review.” Br. of Pet’r at 3.2 Petitioner does correctly observe that a circuit split now exists between
this Court and the Ninth Circuit on this narrow issue of statutory interpretation. In Lopez v. Barr,
925 F.3d 396 (9th Cir. 2019), the Ninth Circuit held that “a Notice to Appear that is defective
under Pereira cannot be cured by a subsequent Notice of Hearing. The law does not permit
multiple documents to collectively satisfy the requirements of a Notice to Appear.” Id. at 405.
2
Petitioner also noted that his opening brief did not cite Garcia-Romo because we issued our
opinion “after Petitioner filed his opening brief.” Br. of Pet’r at 1–2 n.1. This Court appreciates
Petitioner’s candor in recognizing that our case law forecloses his claim.
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Whatever results are generated by “further review,” the law in the Sixth Circuit is currently
clear and we are bound by Garcia-Romo. See Little v. BP Expl. & Oil Co., 265 F.3d 357, 362 (6th
Cir 2001) (“[W]e are bound by Sixth Circuit precedent unless it is overruled by either our court
sitting en banc or the Supreme Court.”) Because this Court has held that the government may
perfect a defective NTA with a subsequent Notice of Hearing that specifies the date and time of a
removal hearing, the BIA did not abuse its discretion in denying Cheat’s second motion to re-open.
III. CONCLUSION
For these reasons, we DENY Petitioner’s petition for review of the BIA order denying his
second motion to reopen removal proceedings.
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