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United States Court of Appeals, Second Circuit.

YONG CHEN, aka Xue Ling Chen, Petitioner, v. Jeffrey A. ROSEN, Acting United States Attorney General, Respondent.1


Decided: January 06, 2021

PRESENT: JOSÉ A. CABRANES, ROBERT D. SACK, DENNY CHIN, Circuit Judges. FOR PETITIONER: Jean Wang, Esq., Flushing, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Stephen J. Flynn, Assistant Director; Lynda A. Do, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


Petitioner Yong Chen, a native and citizen of the People's Republic of China, seeks review of a September 30, 2019, decision of the BIA denying his motion to reopen. In re Yong Chen, No. A078 855 945 (B.I.A. Sept. 30, 2019). We assume the parties’ familiarity with the underlying facts and procedural history.

We review the BIA's denial of a motion to reopen for abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). Before the BIA, Chen argued that the agency did not have jurisdiction to commence removal proceedings and that he was eligible for cancellation of removal because his notice to appear (“NTA”), which did not contain a hearing date or time, was deficient under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), and thus did not vest jurisdiction or stop time for calculating the physical presence required for cancellation.

It is undisputed that Chen's 2018 motion to reopen was untimely because it was filed more than 13 years after his removal order became final in 2005. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Chen argues that the BIA should have excused the time limit and reopened sua sponte given the intervening decision in Pereira. Because Chen's underlying arguments are without merit, the BIA did not err in declining either to excuse the time limitation based on Pereira or exercise its authority to reopen sua sponte. See 8 C.F.R. § 1003.2(c)(3) (listing exceptions to the time limitation); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (recognizing that BIA may reopen sua sponte, but explaining that remand is appropriate where BIA misperceived the law in declining to exercise that authority); see also INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (motion to reopen may be denied for failure to establish a prima facie case).

In Pereira, the Supreme Court held that the Immigration and Nationality Act unambiguously requires an NTA to include a hearing time and place to trigger the “stop-time rule,” 138 S. Ct. at 2113–20, which cuts off a noncitizen's accrual of physical presence or residence for the purposes of cancellation of removal, see 8 U.S.C. § 1229b(a), (b), (d)(1). We have rejected the argument that an NTA that omits hearing information is insufficient to vest the immigration court with jurisdiction over removal proceedings “so long as a notice of hearing specifying this information is later sent to the alien.” Banegas Gomez v. Barr, 922 F.3d 101, 112 (2d Cir. 2019). Although Chen's 2002 NTA did not specify the date and time of his initial hearing, he unquestionably received notice of the hearings at which he appeared and thus the BIA did not err in rejecting his jurisdictional argument.

We likewise find no error in the BIA's determination that Chen failed to establish his prima facie eligibility for cancellation of removal because he did not allege that his removal would cause his U.S. citizen son, or another qualifying relative, any specific hardship, much less “exceptional and extremely unusual hardship.” 8 U.S.C. § 1229b(b)(1)(D); In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (BIA 2001) (requiring applicant to show hardship “substantially beyond the ordinary hardship that would be expected when a close family member leaves this country” (internal quotation marks omitted)). Accordingly, we do not reach Chen's argument that his NTA was ineffective to stop his accrual of physical presence. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.

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Docket No: 19-3199

Decided: January 06, 2021

Court: United States Court of Appeals, Second Circuit.

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