Jorge Moscoso-Castellanos v. Loretta E. Lynch
2015 U.S. App. LEXIS 17778
| 9th Cir. | 2015Background
- Petitioner Jorge Mario Moscoso-Castellanos, a Guatemalan national, entered the U.S. circa 1997 and sought cancellation of removal in 2011, which requires 10 years continuous physical presence.
- DHS served an NTA on Petitioner on April 7, 2005; that NTA omitted the date/time/place of the hearing and stated the hearing would be set later.
- On April 14, 2005 Petitioner received a separate hearing notice with the specific date/time and appeared at the April 20, 2005 hearing.
- Petitioner had accumulated only eight years of presence by April 7, 2005; he argued the stop-time rule should not have been triggered until he received a document specifying the hearing date/time/location.
- The IJ and the BIA found the April 7 NTA triggered the stop-time rule, rendering Petitioner ineligible for cancellation; the Ninth Circuit reviewed the BIA’s interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA that omits hearing date/time/place triggers the stop-time rule under 8 U.S.C. § 1229b(d)(1) | Moscoso: stop-time is triggered only when the alien receives notice that includes the hearing date/time/place (per Garcia-Ramirez) | BIA/Lynch: an NTA as served by DHS (even without date/time/place) triggers stop-time; hearing notices from the court are separate | The court upheld the BIA: the statute is ambiguous and the BIA’s reasonable interpretation that the April 7 NTA triggered stop-time is entitled to Chevron deference; petition denied |
Key Cases Cited
- Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (discusses deference to agency interpretations when courts have previously construed statute)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (framework for judicial deference to agency interpretations of ambiguous statutes)
- Garcia-Ramirez v. Gonzales, 423 F.3d 935 (9th Cir.) (interpreted that stop-time did not occur until notice included hearing date/location)
- Popa v. Holder, 571 F.3d 890 (9th Cir.) (approved two-step notice procedure as complying with statute)
- Guaman-Yuqui v. Lynch, 786 F.3d 235 (2d Cir.) (joined BIA view that NTA alone can trigger stop-time)
- Gonzalez-Garcia v. Holder, 770 F.3d 431 (6th Cir.) (same)
- Yi Di Wang v. Holder, 759 F.3d 670 (7th Cir.) (same)
- Urbina v. Holder, 745 F.3d 736 (4th Cir.) (same)