Liao v. Garland
19-3819
2d Cir.Nov 22, 2021Background
- Petitioner Guo Mei Liao, a Chinese national, received a removal order in 2002 and filed a motion to reconsider/reopen in 2018 (over 16 years later).
- Liao’s May 30, 2001 notice to appear (NTA) omitted the hearing date and time; a June 25, 2001 notice later supplied that information.
- Liao sought cancellation of removal for non-permanent residents, which requires 10 years of continuous physical presence; the stop-time rule can halt accrual when a statutorily sufficient NTA is served.
- The BIA denied Liao’s untimely motion, concluding she failed to show prima facie eligibility for cancellation and that her removal order ended accrual; it also declined sua sponte reopening.
- The Second Circuit reviewed for abuse of discretion, found the BIA erred in its accrual analysis (especially in light of Niz-Chavez), held the BIA cited no authority for treating a removal order as stopping accrual, and granted the petition; the jurisdictional challenge was foreclosed by Banegas Gomez.
Issues
| Issue | Plaintiff's Argument (Liao) | Defendant's Argument (Garland/BIA) | Held |
|---|---|---|---|
| Whether Pereira / defective NTA excuses untimely motion and affects stop-time | NTA missing date/time did not trigger stop-time; motion should be considered | Motion untimely; no exceptional circumstances to excuse | Court: Niz-Chavez makes clear a defective single NTA is not cured by a later notice; BIA erred in its accrual analysis and denial on that basis |
| Whether a later notice of hearing cures a defective NTA for stop-time | Later notice cannot cure the original defective NTA | BIA previously applied a curative rule (but denied relief here) | Supreme Court rule in Niz-Chavez forbids curing by separate document; later notice insufficient |
| Whether a removal order ends accrual of continuous physical presence | Accrual ends only on service of a statutorily sufficient NTA or certain convictions; removal order does not stop accrual | BIA concluded removal order ended accrual | Court: Statute identifies only NTA service or specified convictions; BIA cited no binding authority for treating a removal order as stopping accrual; BIA erred |
| Whether agency lacked jurisdiction over proceedings due to defective NTA | Defective NTA voids IJ jurisdiction | Government: Pereira/Niz-Chavez do not void IJ jurisdiction; Banegas Gomez forecloses that claim | Court: Jurisdiction argument is foreclosed by Banegas Gomez; Pereira/Niz-Chavez address stop-time, not IJ jurisdiction |
Key Cases Cited
- Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (abuse-of-discretion review for motions to reopen/reconsider and standards)
- INS v. Abudu, 485 U.S. 94 (1988) (motions to reopen may be denied for failure to show prima facie eligibility)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA must include time and place to trigger stop-time rule)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (Government must issue a single NTA containing all statutorily required information; separate notices cannot cure defects)
- Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019) (Pereira addresses stop-time only and does not void IJ jurisdiction)