533 F. App'x 752
9th Cir.2013Background
- Marcos Ordaz-Gonzalez applied for cancellation of removal but IJ found him ineligible for failing to accrue 10 years’ continuous physical presence under 8 U.S.C. § 1229b(b)(1)(A).
- IJ concluded Ordaz began accruing presence in 1990 but that the "stop-time rule" ended accrual when he was served a 1998 notice to appear (NTA).
- Ordaz argued the 1998 NTA did not trigger the stop-time rule because it was not the operative charging document in the proceedings and lacked required hearing time/location information under 8 U.S.C. § 1229(a)(1).
- He relied on In re Cisneros-Gonzalez (BIA) and Garcia-Ramirez v. Gonzales for the proposition that only an NTA that is the charging document and contains required information (or is followed by a hearing notice) triggers stop-time.
- The BIA adopted the IJ’s decision; the Ninth Circuit granted review but remanded the case to the BIA for reconsideration in light of intervening authority and administrative interpretations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1998 NTA triggered the stop-time rule | 1998 NTA did not trigger stop-time because it was not the operative charging document and lacked §1229(a)(1) hearing details | Government maintained stop-time was triggered by service of the NTA | Court did not decide merits; remanded to BIA for reconsideration in light of intervening law |
| Whether an NTA lacking hearing time/location qualifies as service “under §1229(a)” | Ordaz: NTA lacking hearing info does not qualify until hearing notice is served | Gov: NTA service suffices to stop accrual (per later BIA interpretation) | Court declined to rule; remanded for BIA to address in light of Camarillo and other developments |
| Whether BIA should apply Chevron deference to its stop-time interpretation | Ordaz implicitly challenged BIA’s later Chevron-based construction | Government relied on BIA’s Chevron invocation (Matter of Camarillo) | Court remanded so BIA can reconsider these arguments under current precedent |
| Whether appeal dismissal and motion to reconsider decisions should stand | Ordaz sought reversal of BIA dismissal and reconsideration denial | BIA defended its dismissal and denial | Petition for review of dismissal granted; BIA order vacated and remanded; motion denial dismissed as moot |
Key Cases Cited
- Garcia-Ramirez v. Gonzales, 423 F.3d 935 (9th Cir. 2005) (stopped accrual when hearing notice specifying time/location was provided)
- Guamanrrigra v. Holder, 670 F.3d 404 (2d Cir. 2012) (treated stop-time as triggered by subsequent hearing notice rather than initial NTA lacking details)
- Moran-Enriquez v. INS, 884 F.2d 420 (9th Cir. 1989) (procedural mootness principles)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for agency deference)