RIVERA LOPES v. GARLAND (2021)

SUMMARY ORDER

Petitioner Juan Isac Rivera-Lopes seeks review of a July 17, 2019, decision of the BIA denying his motion to reconsider, reopen, and terminate his order of removal to Guatemala or to reopen and remand for him to apply for cancellation of removal. In re Juan Isac Rivera-Lopes, No. A 077 698 905 (B.I.A. July 17, 2019). We assume the parties’ familiarity with the underlying facts and procedural history.

The BIA did not abuse its discretion by declining to reconsider or reopen. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69, 173 (2d Cir. 2008) (reviewing motions to reconsider and reopen for abuse of discretion). Rivera-Lopes argues that, under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 2113–20, 201 L.Ed.2d 433 (2018), the immigration court lacked jurisdiction over his removal proceedings because his notice to appear (“NTA”) did not include the date and time of his initial hearing.^* In Pereira, the Supreme Court held that an NTA that fails to designate the time or place of an initial hearing in removal proceedings does not trigger the stop-time rule ending the noncitizen's period of continuous presence for purposes of cancellation of removal. 138 S. Ct. at 2113–20; see also Niz-Chavez v. Garland, ––– U.S. ––––, 141 S. Ct. 1474, 1480–86, 209 L.Ed.2d 433 (2021). Rivera-Lopes's argument is foreclosed by Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019), which holds that an NTA that omits the date and time of the hearing is adequate to vest jurisdiction in the immigration court if the noncitizen was sent a subsequent hearing notice with the missing information. Rivera-Lopes and his counsel were served with notices of his hearings.

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

FOOTNOTES

FOOTNOTE.   Rivera-Lopes does not challenge the BIA's decision not to reopen sua sponte for him to apply for cancellation of removal.