ACOSTA PENA v. BARR (2020)

ORDER AND JUDGMENT *

This petition for review stemmed from the government's effort to remove Mr. Rodrigo Acosta-Pena, a Mexican citizen, based on his presence in the United States without admission or parole. See 8 U.S.C. § 1182(a)(6)(A)(i). He sought cancellation of removal, and an immigration judge denied relief, finding that Mr. Acosta-Pena had not remained physically present in the United States for the required ten-year period. The Board of Immigration Appeals upheld the immigration judge's decision. Mr. Acosta-Pena petitions for review,¹ and we grant the petition.

As a nonpermanent resident, Mr. Acosta-Pena may be eligible for cancellation of removal if he has “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [his cancellation] application.” 8 U.S.C. § 1229b(b)(1)(A). But under the so-called “stop-time” rule, the period of continuous presence is “deemed to end ․ when the alien is served a notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1)(A).

Mr. Acosta-Pena received a putative notice to appear. The notice didn't tell him the time or place of the removal hearing, but the immigration court later supplied this information in a notice of hearing. The Board of Immigration Appeals determined that this combination of documents triggered the stop-time rule as of the date of the notice of hearing (March 4, 2009). We recently rejected this view in Banuelos-Galviz v. Barr, 953 F.3d 1176, 1184 (10th Cir. 2020), holding that “the stop-time rule is not triggered by the combination of an incomplete notice to appear and a notice of hearing.”²

Though the stop-time rule did not apply, Mr. Acosta-Pena must still show that he remained continuously in the United States for at least ten years when he applied for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(A). He applied for cancellation of removal on April 5, 2011, so he must show continuous presence in the United States since April 5, 2001.

Mr. Acosta-Pena left the United States in July 2001. But neither the immigration judge nor the Board of Immigration Appeals decided how long Mr. Acosta-Pena had stayed away. If he had stayed away for more than 90 days, his trip would have broken the period of continuous presence. 8 U.S.C. § 1229b(d)(2). The duration of his trip in July 2001 may thus determine Mr. Acosta-Pena's eligibility for cancellation of removal.

Because the Board erroneously relied on the stop-time rule, we grant the petition for review and remand for further administrative proceedings. On remand, the agency cannot apply the stop-time rule based on the combination of the notice to appear and notice of hearing. Though the stop-time rule does not apply, Mr. Acosta-Pena must still show continuous presence in the United States in the ten-year period preceding his application for cancellation of removal. The agency must determine whether Mr. Acosta-Pena satisfied this requirement in the absence of the stop-time rule.

FOOTNOTES

1.   Although we generally lack jurisdiction over administrative denial of cancellation of removal, see 8 U.S.C. § 1252(a)(2)(B)(i), we retain jurisdiction to review constitutional claims and questions of law. See § 1252(a)(2)(D).

2.   The Board issued its decision before Banuelos-Galviz, so the Board understandably relied on its own contrary precedent.

Robert E. Bacharach, Circuit Judge