Milton Orozco-Velasquez v. Attorney General United States
817 F.3d 78
| 3rd Cir. | 2016Background
- Milton Orozco-Velasquez, a Guatemalan national, entered the U.S. in 1998/1999 and sought cancellation of removal after more than 10 years continuous residence.
- DHS served an initial Notice to Appear (NTA) in May 2008 that named an immigration court but omitted the date and time of proceedings and listed an incorrect court location.
- DHS served a corrected NTA by mail and a Notice of Hearing (with date/time) in April 2010—after Orozco-Velasquez had accrued more than ten years of continuous residence.
- The IJ treated the April 2010 NTA as non-superseding and held the stop-time rule triggered earlier; the BIA affirmed, relying on its In re Camarillo precedent and a DOJ regulation permitting amendments to NTAs.
- Orozco-Velasquez petitioned for review arguing the initial defective NTA did not trigger the INA’s stop-time rule; the Third Circuit granted review and appointed amicus counsel.
- The Third Circuit concluded the statutory text requires an NTA served under 8 U.S.C. § 1229(a) to specify time and place to trigger the stop-time rule, vacated the BIA, and remanded for merits consideration of cancellation relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA that omits time/place (and gives a wrong court) triggers the INA stop-time rule | Orozco-Velasquez: a NTA must include statutorily required items (time/place) to be effective; the defective NTA did not stop accrual | Government/BIA: NTAs lacking date/time/place can still be effective; subsequent notices/amendments cure defects; Camarillo supports this | Held: An NTA stops continuous residence only when it complies with §1229(a)(1), including time and place; defective NTAs do not trigger stop-time until cured within the 10-year window |
| Whether Chevron deference saves the BIA’s interpretation | Orozco-Velasquez: statute is plain and mandatory; no deference for a contravening reading | Government/BIA: BIA expertise warrants Chevron deference to treat defective NTAs as effective | Held: Chevron not owed because BIA’s reading conflicts with the statute’s plain text ("shall" requires time/place) |
| Whether §1252(g) deprives court of jurisdiction to review termination denial | Orozco-Velasquez: §1252(g) does not bar review because claim challenges notice sufficiency, not commencement discretion | Government: argued lack of jurisdiction under Calix analogies | Held: §1252(g) inapplicable here; court has jurisdiction under §1252 to review the BIA order |
| Remedy on procedural posture | Orozco-Velasquez: vacatur and remand for merits of cancellation because stop-time not triggered until April 2010 | Government: removal order should stand because stop-time triggered earlier | Held: Petition granted; BIA order vacated; case remanded to BIA with instructions to remand to IJ to adjudicate cancellation on the merits |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (framework for judicial deference to agency statutory interpretations)
- Guaman-Yuqui v. Lynch, 786 F.3d 235 (2d Cir. 2015) (Second Circuit decision treating ambiguity in stop-time/NTA context)
- Guamanrrigra v. Holder, 670 F.3d 404 (2d Cir. 2012) (prior Second Circuit holding on when stop-time rule is triggered by corrective notices)
- Heckler v. Chaney, 470 U.S. 821 (1985) (agency prosecutorial discretion principle cited regarding commencement of proceedings)
- Ala. v. Bozeman, 533 U.S. 146 (2001) (interpretation of mandatory "shall" language)
- Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014) (court on limits of Chevron deference and statutory construction)
- Mudric v. Att’y Gen., 469 F.3d 94 (3d Cir. 2006) (due process and individualized determination in cancellation proceedings)