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United States Court of Appeals, Second Circuit.

XING YING CHEN, Petitioner, v. William P. BARR, United States Attorney General, Respondent.


Decided: December 22, 2020

PRESENT: JON O. NEWMAN, REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges. FOR PETITIONER: Richard Tarzia, Belle Mead, NJ. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Anthony C. Payne, Assistant Director; Judith R. O'Sullivan, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


Petitioner Xing Ying Chen, a native and citizen of the People's Republic of China, seeks review of an August 5, 2019, decision of the BIA denying his second motion to reopen. In re Xing Ying Chen, No. A076 506 357 (B.I.A. Aug. 5, 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 moved to reopen and terminate his removal proceedings, arguing that the time limit for filing his motion should be excused and that his notice to appear (“NTA”) was insufficient to commence removal proceedings under the Supreme Court's decision in Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), because it did not contain a hearing date or time.

It is undisputed that Chen's 2018 motion to reopen was untimely and number barred because it was his second motion filed more than 15 years after his removal order became final in 2003. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Chen argues that the BIA should have excused the time limit given the intervening decision in Pereira. Chen's Pereira argument is without merit, and the BIA did not err in declining either to excuse the time limitation based on that decision or to 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) (an untimely motion may be considered under the agency's sua sponte authority, but we lack jurisdiction to review such decision other than to remand if the agency misperceived the law).

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). Chen does not challenge his accrual of physical presence, but instead argues that his NTA, which omitted the hearing information, was insufficient to vest the immigration court with jurisdiction over his removal proceedings. We have rejected this argument. Pereira addresses a narrow question regarding the stop-time rule and does not “void jurisdiction in cases in which an NTA omits a hearing time or place.” Banegas Gomez v. Barr, 922 F.3d 101, 110 (2d Cir. 2019). The regulation vesting jurisdiction does not require an NTA to specify the time and date of the initial hearing, “at least so long as a notice of hearing specifying this information is later sent to the alien.” Id. at 112.

Although Chen's 2000 NTA did not specify the date and time of his initial hearing, he unquestionably received notice of his hearings at which he appeared. Therefore, Chen's argument is foreclosed by Banegas Gomez, 922 F.3d at 110, 112.

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

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