Ana Murcia-Pinto v. William P. Barr ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0118n.06
No. 19-3650
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
ANA JUDITH MURCIA-PINTO, ) Feb 24, 2020
) DEBORAH S. HUNT, Clerk
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General, ) APPEALS
)
Respondent. )
BEFORE: GIBBONS, McKEAGUE, and WHITE, Circuit Judges.
PER CURIAM. Ana Judith Murcia-Pinto petitions this court for review of an order of the
Board of Immigration Appeals (BIA) denying her motion to reopen her removal proceedings. As
set forth below, we DENY the petition for review.
Murcia-Pinto, a native of Guatemala and citizen of Honduras, entered the United States
without inspection in 2007. In October 2010, the Department of Homeland Security (DHS) served
Murcia-Pinto a notice to appear in removal proceedings, charging her with removability as an alien
present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).
The notice to appear ordered Murcia-Pinto to appear before an immigration judge (IJ) on a date
and at a time “to be set.” In November 2010, the immigration court sent Murcia-Pinto a notice
scheduling a hearing for June 16, 2011, at 9:00 a.m.; she appeared at that hearing. Murcia-Pinto
later conceded removability as charged and filed an application for withholding of removal and
protection under the Convention Against Torture (CAT), asserting her fear of persecution in
Honduras by the Chinchilla gang. After a hearing, the IJ denied Murcia-Pinto’s application for
No. 19-3650, Murcia-Pinto v. Barr
withholding of removal and CAT protection but granted her request for voluntary departure. The
BIA dismissed Murcia-Pinto’s appeal from the IJ’s denial of her application for withholding of
removal but remanded for further proceedings regarding her request for voluntary departure. On
remand, the IJ issued a removal order at Murcia-Pinto’s request. This court later denied Murcia-
Pinto’s petition for review of the BIA’s order dismissing her appeal from the denial of her
application for withholding of removal. Murcia-Pinto v. Sessions, No. 17-3255 (6th Cir. Dec. 8,
2017) (order).
Murcia-Pinto subsequently filed a motion to reopen her removal proceedings to apply for
asylum and related relief based on changed country conditions. The BIA denied Murcia-Pinto’s
motion.
Two months later, Murcia-Pinto filed another motion to reopen, this time to apply for
cancellation of removal in light of the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct.
2105 (2018). To be eligible for cancellation of removal, an alien must have “been physically
present in the United States for a continuous period of not less than 10 years immediately preceding
the date of” the application for relief. 8 U.S.C. § 1229b(b)(1)(A). Under the stop-time rule, the
period of continuous physical presence in the United States is deemed to end when the alien is
served a notice to appear under 8 U.S.C. § 1229(a). 8 U.S.C. § 1229b(d)(1)(A). In Pereira, the
Supreme Court held that “[a] notice that does not inform a noncitizen when and where to appear
for removal proceedings is not a ‘notice to appear under section 1229(a)’ and therefore does not
trigger the stop-time rule.” 138 S. Ct. at 2110. Murcia-Pinto asserted in relevant part that she was
now eligible to apply for cancellation of removal because the DHS served her a notice to appear
that failed to specify the date and time of the initial removal hearing and that the BIA should
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equitably toll the deadline for filing a motion to reopen because she filed her motion within 90
days of the Pereira decision.
The BIA denied Murcia-Pinto’s motion to reopen as time and number barred. The BIA
went on to determine that, even assuming that Murcia-Pinto established a basis to excuse the
motion’s filing deficiencies, her motion to reopen would be denied. The BIA noted its recent
decision in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (B.I.A. 2019) (en banc), which
held:
[I]n cases where a notice to appear does not specify the time or place of an alien’s
initial removal hearing, the subsequent service of a notice of hearing containing
that information perfects the deficient notice to appear, triggers the “stop-time”
rule, and ends the alien’s period of continuous residence or physical presence in the
United States.
Id. at 529. The BIA pointed out that the record showed that the DHS served Murcia-Pinto a notice
to appear that did not specify the date and time of the initial removal hearing but that she was later
served a notice of hearing containing that information and appeared at the scheduled hearing.1
This timely petition for review followed. In support of her argument that the BIA abused
its discretion in denying her motion to reopen, Murcia-Pinto contends that the BIA’s decision in
Matter of Mendoza-Hernandez is inconsistent with the statutory text and Pereira and is not entitled
to deference. After Murcia-Pinto filed her opening brief, this court decided Garcia-Romo v. Barr,
940 F.3d 192 (6th Cir. 2019). In accord with the BIA’s decision in Matter of Mendoza-Hernandez,
this court concluded that, “in light of the ordinary meaning of the relevant statutory text, the stop-
1
The BIA also rejected Murcia-Pinto’s argument that the defective notice to appear failed to vest
the immigration court with jurisdiction. Murcia-Pinto does not challenge this aspect of the BIA’s
order based on this court’s decision in Hernandez-Perez v. Whitaker, 911 F.3d 305, 315 (6th Cir.
2018), holding that jurisdiction vests with the immigration court where the information about the
time of the hearing is provided in a subsequent notice of hearing. In addition, the BIA declined to
reopen Murcia-Pinto’s removal proceedings sua sponte; we lack jurisdiction to review that
discretionary decision. See Gor v. Holder, 607 F.3d 180, 188 (6th Cir. 2010).
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time rule is triggered when a noncitizen has received all of the required categories of information
of § 1229(a)(1)(A)-(G) whether sent through a single written communication or in multiple written
installments.” 940 F.3d at 196-97. This court held that Pereira did not compel a different
interpretation and rejected the Ninth Circuit’s reasoning in Lopez v. Barr, 925 F.3d 396 (9th Cir.
2019), rehearing en banc granted, 948 F.3d 989 (9th Cir. 2020), upon which Murcia-Pinto relies.
940 F.3d at 201-04. We are bound by this court’s controlling decision in Garcia-Romo. See Jian
Chen v. Barr, 791 F. App’x 597 (6th Cir. 2020).
Accordingly, we DENY Murcia-Pinto’s petition for review.
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