952 F.3d 239
5th Cir.2020Background
- Yanez-Pena (Honduran) entered without inspection in Aug. 2007 and was personally served an NTA on Aug. 31, 2007 that omitted the time/date of the initial hearing (stated “time and date to be set”) but listed the place and included oral Spanish advisals.
- The immigration court mailed a notice of hearing on Sept. 10, 2007 specifying 9:30 a.m. on Sept. 18, 2007; subsequent notices rescheduled the hearing, with a final notice mailed Nov. 19, 2007 setting the hearing for Jan. 28, 2008.
- Yanez-Pena did not appear on Jan. 28, 2008 and was ordered removed in absentia; she later moved to reopen claiming she did not receive the hearing notice; the IJ and BIA denied reopening and the Fifth Circuit initially upheld those denials.
- After the Supreme Court decided Pereira v. Sessions (holding an NTA that omits time/place does not trigger the stop-time rule), Yanez-Pena moved again to reopen, arguing the original defective NTA did not trigger the stop-time rule and she is eligible for cancellation of removal and/or rescission of the in absentia order.
- The BIA denied the second motion, holding that the later-mailed notice of hearing containing time/place “perfected” the defective NTA and triggered the stop-time rule; the Fifth Circuit agreed and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA that omits time/place can be cured by a later notice of hearing such that the stop-time rule is triggered | NTA that omits time/place is not a §1229(a) notice and thus does not trigger stop-time (Pereira); later notice cannot retroactively make her eligible for cancellation | The required information under §1229(a) may be provided in more than one document; receipt of all required info (even across documents) triggers stop-time | The court held the stop-time rule is triggered when the alien receives all information required by §1229(a), whether in one document or multiple communications; the later notice cured the defect |
| Whether the in absentia removal should be rescinded because the original NTA was defective | Because the original NTA lacked time/place, she did not receive the written notice required and the in absentia order must be rescinded | The later notice of hearing cured the defective NTA and satisfies the §1229(a) written-notice requirement; service by mail was established | The court held rescission is not required because the subsequent notice provided the missing time/place and constituted the required written notice |
| Whether Yanez-Pena demonstrated prima facie eligibility for cancellation of removal | She argued the defective NTA did not trigger stop-time, so she accrued 10 years' continuous presence | Government argued stop-time was triggered when she received the later hearing notice, so she lacked 10 years’ continuous presence | The court held her continuous presence ended when she received the later notice (Sept. 10, 2007), so she did not meet the 10‑year requirement |
| Whether other claims (jurisdiction, due process, equitable tolling) remain | Raised before BIA | Government disputed | Court treated those claims as abandoned on appeal and did not decide them |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (an NTA that omits the time/place is not a §1229(a) notice and does not trigger stop-time)
- Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) (a subsequent notice of hearing can cure a defective NTA and supply missing time/date)
- Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019) (multiple written communications can collectively satisfy §1229(a) and trigger stop-time)
- Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019) (rejected the two-step cure; a single document containing all §1229(a) items is required to trigger stop-time)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) (framework for deferring to reasonable agency interpretations)