Jorge Gonzalez-Garcia v. Eric Holder, Jr.
770 F.3d 431
| 6th Cir. | 2014Background
- Jorge Alberto Gonzalez-Garcia, a Mexican national, entered the U.S. on a temporary-visitor visa on September 25, 1999.
- DHS served an I-862 "notice to appear" on June 22, 2009 — ~3 months before Gonzalez-Garcia would reach ten years' continuous physical presence.
- The I-862 listed statutory information but omitted the time and place of the initial hearing; the immigration court later provided those details on August 10, 2009.
- The original I-862 alleged illegal entry; after Gonzalez-Garcia produced his passport showing lawful admission, DHS filed an amended charge (I-261) in January 2011 alleging visa overstay.
- Gonzalez-Garcia applied for cancellation of removal (requires 10 years' continuous physical presence). The IJ and BIA held the June 2009 I-862 triggered the stop-time rule, so he fell short of the 10-year requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an I-862 lacking time/place is a valid "notice to appear" that triggers the stop-time rule under 8 U.S.C. § 1229b(d)(1) | The missing time/place means the I-862 is not a §1229(a) notice and thus does not stop accrual of continuous presence | The form is the statutorily prescribed notice; omissions of scheduling details do not defeat the stop-time trigger | Court upheld BIA: reasonable agency interpretation (Chevron) — an I-862 without time/place can stop the ten-year clock |
| Whether a notice alleging an unsustainable charge (illegal entry) but later amended to a sustainable charge (overstay) prevents the original notice from stopping the clock | The initial charge was unsustainable, so the later sustainable charge (filed after 10 years) should be treated as the operative notice | The stop-time rule is triggered by service of a notice to appear; subsequent failure to sustain original charge does not nullify that effect | Court held that the content's ultimate sustainability is irrelevant; the original notice still stopped accrual |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (agency deference framework for ambiguous statutes)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (recognizing BIA's delegated authority to interpret immigration statutes)
- Becker v. Montgomery, 532 U.S. 757 (2001) (some procedural defects are curable)
- Yi Di Wang v. Holder, 759 F.3d 670 (7th Cir. 2014) (defective notice to appear can trigger stop-time)
- Urbina v. Holder, 745 F.3d 736 (4th Cir. 2014) (same conclusion endorsing BIA’s Camarillo interpretation)
- Cheung v. Holder, 678 F.3d 66 (1st Cir. 2012) (stop-time focuses on receipt of cognizable notice, not on whether charge is sustained)