Roberto Maldonado Galvan v. Jefferson Sessions, III ( 2018 )

FILED
NOT FOR PUBLICATION
OCT 18 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO MALDONADO No. 15-73625
MALDONADO GALVAN, AKA Sergio
Galvan Maldonado, Agency No. A072-294-892
Petitioner,
MEMORANDUM*
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 11, 2018**
Seattle, Washington
Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PAYNE,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert E. Payne, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Maldonado Galvan (“Maldonado”) petitions for review the decision of the
Board of Immigration Appeals (“BIA”) affirming immigration judge’s denial of
his application for cancellation of removal. The BIA denied Maldonado’s
application for cancellation of removal, because he failed to establish the requisite
seven years of continuous residence. We have jurisdiction under 8 U.S.C. § 1252,
in light of the Supreme Court’s recent decision in Pereira v. Sessions, 138 S. Ct.
2105 (2018), and we grant the petition and remand for the BIA for further
proceedings.
1. The Supreme Court’s decision in Pereira held that a notice to appear
(“NTA”) that failed to designate the specific time, place, or date of an alien’s
removal proceedings does not trigger the stop-time rule ending the alien’s accrual
of continuous presence. Id. at 2114. In this case, the NTA failed to include a
place, date, and time for a hearing. Thus, it suffers from the same flaws as the
NTA in Pereira. As a result, we cannot determine whether the stop-time rule
ending the period of continuous presence in the United States was triggered.
Therefore, we grant the petition for review and remand to the agency for further
proceedings to determine whether, under Pereira, Maldonado has met his seven
years of continuous residency, making him eligible for cancellation of removal.
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2. Nevertheless, Maldonado challenges the constitutionality of the issuance of
the NTA on appeal, we address that question. (1) Maldonado failed to raise this
issue to the immigration judge, thus the BIA determined that the issue was waived.
See Matter of Jimenez-Santillano, 21 I. & N. Dec. 567, 570 n.2 (BIA 1996).
However, the BIA also concluded that there was no sufficient basis to conclude
that the NTA was invalid. Thus, the issue was exhausted. See Vizcarra-Ayala v.
Mukasey, 514 F.3d 870, 874 (9th Cir. 2008). (2) We find no merit to Maldonado’s
claim that the government was precluded from initiating removal proceedings. The
fact that Maldonado disclosed that he was arrested in 1994, prior to his grant of
legal permanent residency status, does not estop the government from initiating
removal proceedings based on a subsequent conviction for that charge, which
occurred three years after he was granted such status. See Perez-Mejia v. Holder,
663 F.3d 403, 417-18 (9th Cir. 2011); see also 8 U.S.C. § 1227(a)(2)(B)(i)
(requiring a conviction for a controlled substance before an alien is deportable).
The parties shall bear their own costs on appeal.
PETITION FOR REVIEW GRANTED IN PART; DENIED IN PART;
AND REMANDED.
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