Domingo Quebrado Cantor v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOMINGO QUEBRADO CANTOR, No. 19-73085
Petitioner,
Agency No.
v. A200-885-573
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 30, 2021
Seattle, Washington
Filed November 3, 2021
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown
2 QUEBRADO CANTOR V. GARLAND
SUMMARY *
Immigration
Granting Domingo Quebrado Cantor’s petition for
review of a decision of the Board of Immigration Appeals,
and remanding, the panel held that the stop-time rule – which
sets out the circumstances under which a period of
continuous physical presence is deemed to end for
cancellation of removal – is not triggered by a final order of
removal.
Quebrado entered the United States in 2006. In 2011, he
was served a notice to appear lacking the time or place of his
removal hearing, but later was served a notice with the date,
time, and place of his hearing. He was issued a final order
of removal in 2014. In 2018, the Supreme Court decided
Pereira v. Sessions, 138 S. Ct. 2105 (2018), concluding that,
in order to trigger the stop-time rule, a notice to appear must
include the “time and place” of removal proceedings.
Quebrado then moved to reopen before the BIA, arguing he
was statutorily eligible for cancellation. The BIA denied the
motion, concluding that continuous physical presence ceases
with a final order of removal – meaning that Quebardo fell
short of the ten years of continuous physical presence
required for cancellation.
In holding that a final order of removal does not trigger
the stop-time rule, the panel explained that the statutory
language of the rule, 8 U.S.C. § 1229b(d)(1), is
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
QUEBRADO CANTOR V. GARLAND 3
unambiguous in providing that a period of continuous
physical presence is deemed to end upon the earlier of two
events, which are spelled out in subsections (A) and (B).
Under subsection (A), presence is deemed to end with the
service of the notice to appear, and under subsection (B), it
is deemed to end upon the commission of certain offenses.
Observing that the stop-time rule includes no mention of a
final order of removal as a triggering event, the panel
explained that it was not the court’s role to rewrite the
statute.
The panel explained that neither subsection applied here.
Under Pereira, the notice to appear failed to trigger the stop-
time rule because it did not specify the time and date of
proceedings. Moreover, because the Supreme Court held in
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), that a notice
to appear must be a single document, containing all the
information Congress specified, the panel explained that the
second notice sent to Quebrado did not cure the deficient
notice to appear. The panel noted that all agreed that
subsection (B) was inapplicable. Because neither subsection
applied, the panel concluded that Quebrado’s presence was
not deemed to end and, as a result, his claim for cancellation
facially satisfied the ten-year presence requirement.
Responding to the government’s contention that the
stop-time rule should be read expansively, the panel
explained that the stop-time rule operates as an exception to
the command that the presence requirement is satisfied upon
ten years of continuous physical presence. Therefore, the
proper inference is that Congress considered which events
ought to stop the clock and settled on only two.
The government also suggested that Quebrado now
found himself in an absurd situation: a notice to appear is
4 QUEBRADO CANTOR V. GARLAND
used to initiate removal proceedings; it should therefore be
impossible for Quebrado’s removal proceedings to have
concluded – culminating in a final order of removal –
without subsection (A) having been triggered. In response,
the panel explained that this improbable situation is entirely
of the government’s own making and that it is not the court’s
job to fashion a statutory backstop from whole cloth. The
panel quoted the Supreme court in Niz-Chavez: “If men must
turn square corners when they deal with the government, it
cannot be too much to expect the government to turn square
corners when it deals with them.” 141 S. Ct. at 1486.
Finally, the panel rejected the government’s argument
that any error was harmless because Quebrado’s motion was
deficient for other reasons, observing that the court’s review
is limited to the legal reason given by the face of the BIA’s
decision. Because the BIA did not address alternative
grounds for denial, the panel remanded to the BIA for further
proceedings consistent with this opinion.
COUNSEL
Luis Cortes Romero (argued), Novo Legal Group PLLC,
Kent, Washington; Elaine Ruth Fordyce, Law Office of
Shara Svendsen PLLC, Mill Creek, Washington; for
Petitioner.
Lance L. Jolley (argued), Trial Attorney; Anthony C. Payne,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
QUEBRADO CANTOR V. GARLAND 5
OPINION
McKEOWN, Circuit Judge:
This appeal requires us to address, yet again, application
of the “stop-time rule” in immigration proceedings.
Nonpermanent residents subject to removal may apply to the
Attorney General for cancellation of removal. To be
eligible, a nonpermanent resident must have “been
physically present in the United States for a continuous
period of not less than 10 years.” 8 U.S.C. § 1229b(b)(1)(A).
The question is what circumstances serve to stop the accrual
of time. By statute, nonpermanent residents cease to accrue
physical presence (1) once they are “served a notice to
appear” or (2) if they commit certain crimes. Id.
§ 1229b(d)(1). Domingo Quebrado Cantor (“Quebrado”)
alleges he was physically present in this country for twelve
years when he sought to reopen his immigration proceedings
to apply for cancellation of removal. The Board of
Immigration Appeals (“BIA”) saw it differently and denied
Quebrado’s request, reasoning that the stop-time rule was
triggered when Quebrado received a final order of removal
four years prior to his motion to reopen. By its terms,
however, the stop-time rule applies to only the two
circumstances set out in the statute, and a final order of
removal satisfies neither. Because the BIA’s decision was
contrary to the text of the statute, we grant the petition and
remand to the BIA for further proceedings.
BACKGROUND
Domingo Quebrado Cantor is a native and citizen of
Mexico who entered the United States without inspection in
2006. The United States Department of Homeland Security
commenced removal proceedings against him and served
him with a notice to appear in 2011. The notice to appear
6 QUEBRADO CANTOR V. GARLAND
did not include the time or place of the proceedings; rather,
Quebrado was directed to appear “on a date to be set at a
time to be set.” Quebrado was later served with a notice that
specified a date, time, and place for his hearing. Quebrado
appeared at the hearing. In due course, Quebrado conceded
removability, and pursued asylum, voluntary departure, and
Deferred Action for Childhood Arrivals. The immigration
judge (“IJ”) denied Quebrado’s asylum application and
ordered him removed if he failed to depart voluntarily. The
BIA affirmed, and we denied Quebrado’s petition for
review.
In 2018, the Supreme Court concluded that, in order to
trigger the stop-time rule, a notice to appear must include the
“time and place” of the removal proceedings. Pereira v.
Sessions, 138 S. Ct. 2105, 2113 (2018) (quoting 8 U.S.C.
§ 1229(a)(1)(G)(i)). Following this decision, Quebrado
moved to reopen his immigration proceedings before the
BIA for the purpose of applying for cancellation of removal.
He argued that because his notice to appear lacked a time
and place, it was defective and did not stop accrual of
continuous physical presence. By Quebrado’s calculation,
he had accrued continuous physical presence since his
arrival in the United States in 2006 and was statutorily
eligible for cancellation of removal.
The BIA denied Quebrado’s motion to reopen. The
government argued that the subsequent notice of hearing
received by Quebrado had cured any defect in the initial
notice to appear. Somewhat presciently however, the BIA
declined to adopt the government’s argument. Rather, the
BIA’s sole basis for denying Quebrado’s motion to reopen
was its conclusion that “[c]ontinuous physical presence
ceases to accrue at the entry of a final administrative
decision.” Because a final order of removal was issued for
QUEBRADO CANTOR V. GARLAND 7
Quebrado in 2014, the BIA determined that he “fell short of
meeting the requisite continuous physical presence for
cancellation of removal.” We have jurisdiction to review
Quebrado’s petition because the BIA rested its denial of
reopening on legal grounds. See Bonilla v. Lynch, 840 F.3d
575, 588 (9th Cir. 2016).
ANALYSIS
Noncitizens subject to removal may apply for permission
to remain in the United States so long as they meet the
statutory criteria for cancellation of removal under 8 U.S.C.
§ 1229b. These noncitizens are eligible for cancellation of
removal if, among other things, they have “been physically
present in the United States for a continuous period of not
less than 10 years immediately preceding the date of such
application.” Id. § 1229b(b)(1)(A).
Historically, a noncitizen “continued to accrue time
toward the presence requirement during the pendency of his
removal proceedings.” Niz-Chavez v. Garland, 141 S. Ct.
1474, 1478–79 (2021). Some questioned, however, whether
this practice could create an incentive to needlessly delay
removal proceedings. See id. at 1479. “In [the Illegal
Immigration Reform and Immigration Responsibility Act of
1996 (“IIRIRA”), 110 Stat. 3009–546], Congress responded
to these concerns with a new ‘stop-time’ rule.” Id. That rule
provides:
For purposes of this section, any period of
continuous residence or continuous physical
presence in the United States shall be deemed
to end (A) except in the case of an alien who
applies for cancellation of removal under
subsection (b)(2), when the alien is served a
notice to appear under section 1229(a) of this
8 QUEBRADO CANTOR V. GARLAND
title, or (B) when the alien has committed an
offense referred to in section 1182(a)(2) of
this title that renders the alien inadmissible to
the United States under section 1182(a)(2) of
this title or removable from the United States
under section 1227(a)(2) or 1227(a)(4) of this
title, whichever is earliest.
8 U.S.C. § 1229b(d)(1).
Despite its apparent simplicity, the rule “has generated
outsized controversy.” Niz-Chavez, 141 S. Ct. at 1479.
Recently, much of that controversy has focused on what
constitutes “a notice to appear” within the meaning of
subsection (A). The statute defines a notice to appear as a
“written notice . . . specifying,” among other things, the
“time and place” of the noncitizen’s removal hearing.
8 U.S.C. § 1229(a)(1). In defiance of this clear statutory
instruction, the government’s practice for many years was to
issue notices that failed to specify these necessary details.
See Pereira, 138 S. Ct. at 2111–12. The Supreme Court put
an end to this practice in Pereira and Niz-Chavez, brushing
aside the government’s policy arguments and emphasizing
that “pleas of administrative inconvenience” can “never
‘justify departing from the statute’s clear text.’” Niz-Chavez,
141 S. Ct. at 1485 (quoting Pereira, 138 S. Ct. at 2118).
In Pereira, the Court held that a notice that fails to
designate the “time and place” of a removal hearing “is not
a ‘notice to appear under section 1229(a),’ and so does not
trigger the stop-time rule.” 138 S. Ct. at 2114 (quoting
8 U.S.C. § 1229b(d)(1)). And, in the follow-on case—Niz-
Chavez—the Court held that the government could not cure
a deficient notice to appear by later sending a letter
specifying the hearing’s time and place, explaining that
QUEBRADO CANTOR V. GARLAND 9
subsection (A) unambiguously required the government to
“serve ‘a’ notice containing all the information Congress has
specified,” and “not a mishmash of pieces with some
assembly required.” 141 S. Ct. at 1480 (quoting 8 U.S.C.
§ 1229b(d)(1)). In both decisions, the Court found the text
of the statute to be dispositive. See id. at 1484 (applying “the
statute’s ordinary meaning”); Pereira, 138 S. Ct. at 2114(“The statutory text alone is enough to resolve this case.”).
In so doing, the Court stressed that courts must “exhaust ‘all
the textual and structural clues’” bearing on a statute’s
meaning and emphasized that, where “exhausting those
clues enables us to resolve the interpretive question put to
us, our ‘sole function’ is to apply the law as we find it, not
defer to some conflicting reading the government might
advance.” Niz-Chavez, 141 S. Ct. at 1480 (citation omitted).
The lesson of Pereira and Niz-Chavez is clear: the
government may not “short-circuit the stop-time rule,” id. at
1479, by invoking administrative deference in the face of an
otherwise unambiguous statutory command. In other words,
“[t]he language of [the] statute is controlling when the
meaning is plain and unambiguous.” United States v. Maria-
Gonzalez, 268 F.3d 664, 668 (9th Cir. 2001) (citing Aragon-
Ayon v. I.N.S., 206 F.3d 847, 851 (9th Cir. 2000)); see also
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842–43 (1984) (“If the intent of Congress is
clear, that is the end of the matter; for the court, as well as
the agency, must give effect to the unambiguously expressed
intent of Congress.”).
The Court’s emphasis on the language of this statute
informs our analysis here. The precise question we consider
is whether a final order of removal serves to invoke the stop-
time rule. It does not. The language setting out the stop-
time rule is unambiguous: a nonpermanent resident’s
10 QUEBRADO CANTOR V. GARLAND
“period of continuous [physical presence] is ‘deemed to end’
upon the earlier of two events, which are spelled out in
subsections (A) and (B) of the rule.” Jaghoori v. Holder,
772 F.3d 764, 767 (4th Cir. 2014). Under subsection (A), a
noncitizen’s presence is deemed to end when the
government serves a notice to appear. Under subsection (B),
a noncitizen’s presence is deemed to end upon the
commission of an enumerated offense. Put another way,
“time will stop accruing when the [nonpermanent resident]
was (1) served with a notice to appear, or (2) when the
[nonpermanent resident] committed certain removable
offenses.” Torres de la Cruz v. Maurer, 483 F.3d 1013, 1020
(10th Cir. 2007). The stop-time rule includes no mention of
a final order of removal as a triggering event and it is not our
role to rewrite the statute.
Neither subsection (A) nor subsection (B) applies here.
We know from Pereira and Niz-Chavez that subsection (A)
has not been triggered. The first notice Quebrado received
“failed to specify the date and time of [his] removal
proceedings.” Pereira, 138 S. Ct. at 2113. And the second
notice, which informed Quebrado of the date and time of his
removal proceeding, did not cure the government’s failure to
provide him with “‘a’ single document” containing “all the
information Congress has specified.” Niz-Chavez, 141 S. Ct.
at 1480. All agree that subsection (B) is inapplicable, as
Quebrado did not commit a removable offense. Because
neither subsection of the stop-time rule applies, Quebrado’s
physical presence was not “deemed to end.” 8 U.S.C.
§ 1229b(d)(1). His claim for cancellation of removal
therefore, at least facially, satisfies § 1229b(b)(1)(A)’s ten-
year continuing presence requirement.
Despite the Court’s unmistakable teachings, the
government apparently insists on “continu[ing] down the
QUEBRADO CANTOR V. GARLAND 11
same old path,” Niz-Chavez, 141 S. Ct. at 1479, of ignoring
the language of the stop-time rule. “Straining to inject
ambiguity into the statute,” Pereira, 138 S. Ct. at 2116, the
government argues the stop-time rule ought to be interpreted
expansively. According to the government: “While the
‘stop-time rule’ instructs that the period of continuous
physical presence ends with the service of the notice to
appear or the commission of certain crimes, it does not
indicate that those are the only reasons the period of
continuous physical presence may be deemed to end.” We
disagree.
The presence requirement of the cancellation of removal
statute is facially satisfied when a nonpermanent resident,
such as Quebrado, has “been physically present in the United
States for a continuous period of not less than 10 years.”
8 U.S.C. § 1229b(b)(1)(A). The stop-time rule operates as
an exception to this otherwise unambiguous command,
cutting short a nonpermanent resident’s period of physical
presence in two specifically enumerated circumstances. Id.
§ 1229b(d)(1). “When Congress provides exceptions in a
statute, it does not follow that courts [or, by implication,
agencies] have authority to create others. The proper
inference . . . is that Congress considered the issue of
exceptions and, in the end, limited the statute to the ones set
forth.” United States v. Johnson, 529 U.S. 53, 58 (2000).
The government’s argument would turn this principle on its
head, using the existence of two exceptions to authorize a
third very specific exception. But Congress, in its
amendment to the statute, did not frame these two exceptions
as illustrative examples of circumstances that “stop the
clock” or otherwise indicate the stop-time rule ought to be
read so expansively. See United States v. Hastie, 854 F.3d
1298, 1304 (11th Cir. 2017) (noting that Congress may use
certain words, such as “including,” to indicate provisions are
12 QUEBRADO CANTOR V. GARLAND
intended to be illustrative rather than exhaustive). Therefore
the “proper inference,” Johnson, 529 U.S. at 58, is that
Congress considered which events ought to “stop the clock”
on a nonpermanent resident’s period of continuous physical
presence and settled, in its legislative judgment, on only two.
The government suggests that Quebrado now finds
himself in an absurd situation. A notice to appear is used to
initiate removal proceedings; it should therefore be
impossible for Quebrado’s removal proceedings to have
concluded—culminating in a final order of removal—
without subsection (A) having been triggered. But this
improbable situation is entirely of the government’s own
making. The power to trigger subsection (A) rests in the
government’s hands—it can “stop the clock” at any time,
simply by issuing a statutorily-compliant notice to appear.
8 U.S.C. § 1229b(d)(1). By neglecting to send Quebrado
such a notice, the government failed to trigger the stop-time
rule. See Pereira, 138 S. Ct. at 2113–14. It is not our job to
fashion a statutory backstop from whole cloth. “If men must
turn square corners when they deal with the government, it
cannot be too much to expect the government to turn square
corners when it deals with them.” Niz-Chavez, 141 S. Ct. at
1486.
Having concluded that the BIA’s decision rests on legal
error, the remaining question is whether to remand. The
government argues that any error was harmless because
Quebrado’s motion to reopen was deficient for other
reasons. That may or may not be true, but our review is
limited to the legal reason given on “the face of the BIA’s
decision.” Lona v. Barr, 958 F.3d 1225, 1234 (9th Cir.
2020). Because the BIA did not address alternate grounds
QUEBRADO CANTOR V. GARLAND 13
for denial of the motion, we remand to the BIA for further
proceedings consistent with this opinion.
PETITION GRANTED and REMANDED.