XIAO v. GARLAND (2021)

SUMMARY ORDER

Petitioner Zha Bi Xiao, a native and citizen of the People's Republic of China, seeks review of a July 12, 2019, decision of the BIA denying Xiao's motion to reopen. In re Zha Bi Xiao, No. A XXX XX3 935 (B.I.A. July 12, 2019). We assume the parties’ familiarity with the underlying facts and procedural history.

We review the denial of a motion to reopen for abuse of discretion. Jian Hui Shao v. Mukasey, 546 F.3d 138, 173 (2d Cir. 2008). Xiao asked the BIA to reopen her proceedings to allow her to apply for cancellation of removal in light of Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). A non-permanent resident, like Xiao, may apply for cancellation if, among other requirements, she has accrued 10 years of physical presence in the United States. 8 U.S.C. § 1229b(b)(1)(A). The accrual of presence stops upon service of a notice to appear (“NTA”). Id. § 1229b(d)(1). 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 this stop-time rule. 138 S. Ct. at 2113–20. After Pereira, the BIA held that where an NTA omits the information, the accrual of time stops when the missing information is provided in a hearing notice. Matter of Mendoza-Hernandez & Capula-Cortes, 27 I. & N. Dec. 520 (B.I.A. 2019). The BIA relied on this decision to find the “stop-time rule” was not at issue in Xiao's case because her July 2001 NTA was perfected by a September 2001 hearing notice, which stopped her accrual of presence. The Supreme Court has since clarified that an NTA that does not contain a hearing date and time as required in 8 U.S.C. § 1229(a) is not cured for purposes of the stop-time rule by a subsequent notice of hearing that provides the missing information. See Niz-Chavez v. Garland, ––– U.S. ––––, 141 S. Ct. 1474, 1480-82, 209 L.Ed.2d 433 (2021). The Government's argument that Xiao's removal order stopped her accrual of presence is an issue for the BIA to address in the first instance because our review is limited to the reasons given by the BIA. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122 (2d Cir. 2007).

For the foregoing reasons, the petition for review is GRANTED, the BIA's decision is VACATED, and the case is REMANDED for further proceedings. All pending motions and applications are DENIED and stays VACATED.