FIGUEROA DIAZ v. GARLAND (2021)

Last year, this court denied a petition for review of the Board of Immigration Appeals’ decision to deny Figueroa-Diaz's motion to reopen. Figueroa-Diaz v. Barr, 812 F. App'x 278 (5th Cir. July 17, 2020).¹ We did so based on our then-existing precedent holding that the stop-time rule, which stops the clock on the period of physical presence required for cancellation of removal, could be triggered by multiple documents providing the required notice for a removal hearing. See id. at 279 (citing Yanez-Pena v. Barr, 952 F.3d 239, 241 (5th Cir. 2020), vacated sub nom. Yanez-Pena v. Garland, No. 19-1208, ––– U.S. ––––, ––– S.Ct. ––––, 209 L.Ed.2d 727 (U.S. May 3, 2021)). The Supreme Court has now rejected our rule, holding that a notice to appear sufficient to trigger the stop-time rule is a single document containing all the required information. See Niz-Chavez v. Garland, ––– U.S. ––––, 141 S. Ct. 1474, ––– L.Ed.2d –––– (2021).

In this case, the Supreme Court granted the petition for writ of certiorari, vacated our prior decision, and remanded for reconsideration in light of Niz-Chavez. Figueroa-Diaz v. Garland, No. 517, 2021 WL 1725148, ––– U.S. ––––, ––– S.Ct. ––––, 209 L.Ed.2d 728 (U.S. May 3, 2021). As a result, this matter is REMANDED to the Board of Immigration Appeals (BIA) in accordance with the judgment of the Supreme Court. Although the government asks us to affirm on alternative grounds, we think the best course is to remand to the BIA in light of Niz-Chavez. We in no way limit the issues the BIA may consider on remand. The mandate shall issue forthwith.

FOOTNOTES

FOOTNOTE.  

1.   We also dismissed for lack of jurisdiction Figueroa-Diaz's petition seeking review of the BIA's refusal to reopen the proceedings sua sponte. That aspect of this petition for review is not being remanded.

Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.