Gilberto Garcia-Romo v. William P. Barr
940 F.3d 192
| 6th Cir. | 2019Background
- Gilberto Garcia-Romo, a Guatemalan national, entered the U.S. in 2002; DHS served a "Notice to Appear" (NTA) on Feb. 29, 2012 that omitted time/date and a separate "Notice of Hearing" with time/date was mailed Apr. 30, 2012.
- Garcia-Romo applied for cancellation of removal (requires 10 years continuous physical presence) in Feb. 2014; IJ denied relief based on evidence he left in April 2005 and on the stop-time rule.
- The stop-time rule in 8 U.S.C. § 1229b(d)(1) provides that continuous presence ends when the alien "is served a notice to appear under section 1229(a)." Section 1229(a)(1)(A)-(G) lists required categories of information including time and place.
- The BIA dismissed Garcia-Romo’s appeal, concluding the Feb. 29 NTA combined with the Apr. 30 Notice of Hearing terminated accrual; it raised this issue sua sponte.
- Garcia-Romo petitioned for review, arguing Pereira v. Sessions requires that all §1229(a)(1) information appear in a single document to trigger stop-time.
Issues
| Issue | Plaintiff's Argument (Garcia-Romo) | Defendant's Argument (Government/BIA) | Held |
|---|---|---|---|
| Whether a "notice to appear" under §1229(a) must be contained in a single document to trigger the stop-time rule in §1229b(d)(1) | The statute requires service of a singular, compliant document containing all §1229(a)(1)(A)-(G) information; multiple instalments cannot constitute "a notice to appear." | Stop-time is triggered when the alien has received all required categories in §1229(a)(1)(A)-(G), whether delivered in one document or several written communications. | The court held that receiving all required categories, even via multiple written communications, triggers the stop-time rule; denied the petition. |
| Jurisdiction / exhaustion of administrative remedies | (implicit) Garcia-Romo did not explicitly brief the single-document argument to the BIA. | Government argued Garcia-Romo failed to exhaust administrative remedies. | Court held BIA raised the issue sua sponte (thereby waiving exhaustion), so the court has jurisdiction to review the issue. |
| Deference to the BIA under Chevron if statute ambiguous | Garcia-Romo urged interpretation favoring single-document requirement. | Government and BIA maintain their interpretation is reasonable and entitled to Chevron deference. | Court found the statutory text unambiguous in ordinary meaning but held that even if ambiguous, the BIA’s interpretation (that a subsequent hearing notice can perfect an NTA) is permissible under Chevron. |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court held an NTA that omits time/place does not trigger the stop-time rule)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (Established the two-step framework for judicial deference to reasonable agency statutory interpretations)
- Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019) (Ninth Circuit held stop-time requires a single document containing all §1229(a)(1) information)
- Negusie v. Holder, 555 U.S. 511 (2009) (Confirmed that BIA interpretations may be eligible for Chevron deference)