Edwin Nunez Castro v. William P. Barr ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0119n.06
Case No. 19-3654
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 25, 2020
EDWIN DOLORES NUNEZ CASTRO, ) 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: MOORE, KETHLEDGE and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. This appeal presents the same issue that was decided in
Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019): may “a notice to appear” for a removal
proceeding under 8 U.S.C. §§ 1229(a), 1229b(d)(1) be served upon a noncitizen using multiple
installments? Petitioner, Edwin Dolores Nunez Castro, a noncitizen, says no. We said yes in
Garcia-Romo. 940 F.3d at 201. We have no license to overturn Garcia-Romo, Salmi v. Sec’y of
Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), and Castro does not even ask us to do
so. We thus DENY Castro’s petition for review.
I.
Castro is a Salvadoran national who entered the United States without inspection in 2007,
at the age of eighteen. In 2010, he was arrested by Ohio police in connection with a vehicle
accident, and following his incarceration, he was turned over to the Department of Homeland
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Security (DHS), which initiated removal proceedings. In the proceedings before the immigration
judge, Castro conceded that he was inadmissible as charged. He sought asylum, withholding of
removal, and relief under the Convention Against Torture. The immigration judge denied Castro’s
application, and the Board of Immigration Appeals affirmed. Castro asked for and was granted
the privilege of voluntary departure.
Castro did not depart as agreed. Instead, in 2018, he filed a motion with the Board to
reconsider its previous removal order, and he sought cancellation of removal, a form of
discretionary relief that the Attorney General may grant to noncitizens to allow them to remain in
the United States if they meet certain eligibility requirements under 8 U.S.C. § 1229b(b)(1). One
of those requirements is that the alien “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). There is no dispute that, at the time Castro filed his motion for
reconsideration and for cancellation of removal, he had been physically present in the United States
since 2007.
However, under the “stop-time” rule established by Congress, the accrual period of
continuous physical presence is “deemed to end . . . when the alien is served a notice to appear
under section 1229(a).” Id. § 1229b(d)(1). A “Notice to Appear,” as defined and referred to in
§ 1229(a)(1), specifies that the noncitizen must be provided with written notice of several different
categories of information, described in subsections (A)-(G) of that statutory provision. One of
those categories is “[t]he time and place at which the [removal] proceedings will be held.” Id.
§ 1229(a)(1)(G)(i).
In January 2010, Castro received a “Notice to Appear” document from DHS that contained
all of the required information under § 1229(a)(1)(A)-(G) except for the time and date of the
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removal proceedings. The next month, the Immigration Court sent Castro a document entitled
“Notice of Hearing,” which provided the required time-and-date information.
Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Castro argued to the Board in his
motion for reconsideration that the stop-time rule was never triggered in his removal proceedings
because he never received a single document that contained the information for all requisite
categories. Thus, he argued, he continued to accrue continuous physical presence even after he
received his “Notice to Appear” and “Notice of Hearing.” The Board denied the motion as
untimely, and further found that Castro’s period of continuous physical presence had ended in
2010 when he received a “Notice of Hearing” containing the time-and-date information. The
Board observed that “a [‘Notice to Appear’] that does not include the time and place of an alien’s
initial removal hearing is perfected by the subsequent service of a Notice of Hearing . . . specifying
that missing information.” (R. 7-2 at PageID 7) This petition for review followed.
II.
In his petition, Castro argues that the government is required to satisfy the requirements of
8 U.S.C. § 1229(a)(1)(A)-(G) in a single document, rather than in multiple installments, in order
to serve as “a notice to appear” as used in § 1229b(d)(1) and thus trigger the stop-time rule in that
latter statutory provision. Castro further argues that Pereira v. Sessions dictates this result in his
favor.
But Castro’s argument is foreclosed by our recent decision in Garcia-Romo v. Barr. There,
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).” Garcia-Romo, 940 F.3d at 201. We also considered and rejected Castro’s argument
that Pereira dictates the opposite result. Id. at 201, 203 (“Pereira v. Sessions . . . does not compel
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a different interpretation than the ordinary meaning applied above. . . . In fact, our holding is
entirely consistent with Pereira.”). The material facts in Garcia-Romo were nearly identical to
those in this case, and Castro does not attempt to distinguish it. Although we decided Garcia-
Romo two days after he filed his opening appellate brief, Castro does not address Garcia-Romo in
a reply brief of otherwise. That case controls and is fatal to his claim.
III.
For the foregoing reasons, we DENY the petition for review.
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