ZHENG v. GARLAND (2021)

SUMMARY ORDER

Petitioner Hai Qin Zheng, a native and citizen of the People's Republic of China, seeks review of an August 29, 2019, decision of the BIA denying her motion to reopen and terminate her removal proceedings. In re Hai Qin Zheng, No. A XXX XX7 618 (B.I.A. Aug. 29, 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 Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir. 2007). The BIA abuses its discretion if its “decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (internal quotation marks omitted).

The BIA did not abuse its discretion here. Zheng argued that, under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 2114, 201 L.Ed.2d 433 (2018), the immigration court lacked jurisdiction over her removal proceedings because her notice to appear (“NTA”) did not include the date and time of her 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 proceeding 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, 209 L.Ed.2d 433 (2021) (holding that an NTA that omits statutorily required information is not cured for purposes of the stop-time rule by a subsequent notice that contains the missing information). Zheng did not apply for cancellation of removal, but instead argues that Pereira also renders such an NTA inadequate to vest jurisdiction in the immigration court. Zheng's argument is foreclosed by Banegas Gomez v. Barr, 922 F.3d 101 (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, id. at 110–12. See also Niz-Chavez, 141 S. Ct. at 1479–84 (like Pereira, addressing only the stop-time rule and not questioning the immigration court's jurisdiction over removal proceedings commenced by an incomplete NTA). Zheng received notice of her hearings and appeared at them.

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