Banuelos-Galviz v. Barr
953 F.3d 1176
| 10th Cir. | 2020Background:
- Eduardo Banuelos entered the U.S. in 2006 and was later served an "Notice to Appear" (NTA) that omitted the hearing date and time.
- The immigration court subsequently served a separate notice of hearing that supplied the missing date/time.
- Banuelos applied for asylum, withholding, and CAT relief; the IJ denied relief and he appealed to the BIA.
- While the appeal was pending, the Supreme Court decided Pereira v. Sessions holding that an NTA missing the time does not trigger the stop-time rule.
- The BIA treated the defective NTA plus the later notice of hearing as equivalent to one complete NTA and concluded the stop-time rule was triggered, denying remand for cancellation-of-removal consideration.
- The Tenth Circuit reviewed the BIA’s denial for abuse of discretion (legal questions reviewed as errors of law) and held the stop-time rule is not triggered by a combination of documents; the petition for review was granted and the case remanded.
Issues:
| Issue | Banuelos' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the stop-time rule is triggered by a defective NTA plus a later notice of hearing | A defective NTA lacking date/time is not a §1229(a) "notice to appear," and a later hearing notice cannot cure it | The two documents together satisfy §1229(a) and therefore trigger the stop-time rule | The stop-time rule requires one complete §1229(a) NTA; the combination does not trigger the rule |
| Whether the BIA’s interpretation of §1229 is entitled to Chevron deference | The statute is unambiguous; Chevron deference is unnecessary and inappropriate | The BIA’s longstanding interpretation is reasonable and should be deferred to | Chevron does not apply because statutory text is unambiguous; court resolves the question itself |
| Whether Pereira controls this context (NTA followed by hearing notice) | Pereira’s statutory reasoning extends: omission of time means no §1229(a) NTA, even if a hearing notice later supplies time | Pereira is factually distinguishable (no later hearing notice) and thus does not control here | Pereira’s interpretation of the statutory phrase applies; subsequent hearing notice does not cure the defective NTA |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (holding an NTA that omits the time is not a §1229(a) "notice to appear" and thus does not trigger the stop-time rule)
- Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019) (panel holding substantive defects in an NTA cannot be cured by a later notice of hearing)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (pre-Pereira precedent treating combined documents as satisfying §1229(a))
- United States v. Hayes, 555 U.S. 415 (2009) (interpretive guidance that singular article ordinarily denotes a single item)
- Stone v. INS, 514 U.S. 386 (1995) (presumption that statutory amendments have real effect)
- Neri-Garcia v. Holder, 696 F.3d 1003 (10th Cir. 2012) (standard: denial of remand reviewed for abuse of discretion)