48 F.4th 374
5th Cir.2022Background
- Gemima Ivette Parada and her minor daughter, nationals of El Salvador, entered the U.S. on Sept. 6, 2006 without admission and were issued Notices to Appear (NTAs) that did not list a time or date for their removal hearing.
- Parada conceded removability; an Immigration Judge ordered removal on Oct. 31, 2008, and the BIA affirmed.
- In Sept. 2018 Parada moved to reopen under Pereira, arguing the defective NTAs did not trigger the stop-time rule, so she and her daughter accrued the 10 years continuous physical presence needed to apply for cancellation of removal.
- The BIA denied reopening, relying on Matter of Mendoza-Hernandez and on later Notices of Hearing (issued in 2007) that included time/date, reasoning those cured the defective NTAs and activated the stop-time rule.
- The Fifth Circuit reviewed for abuse of discretion and held the BIA erred: under Pereira and Niz-Chavez a single document containing time/place is required to trigger the stop-time rule; the Paradas’ NTAs were therefore ineffective to stop the clock.
- The court also held a final order of removal is not a statutory trigger for the stop-time rule and remanded to the BIA for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA that lacks time/place triggers the stop-time rule | Parada: defective NTA without time/place does not trigger stop-time; therefore she accrued 10 years | Gov: later Notices of Hearing (with time/date) cured the defect and thus stop-time was triggered | Court: NTA must be a single document with time/place; defective NTA did not trigger stop-time and later hearing notices cannot cure under Niz-Chavez |
| Whether a final removal order triggers the stop-time rule | Parada: final order is not one of the two statutory stop-time triggers | Gov: final removal order should stop the clock | Court: stop-time is triggered only by (1) service of a valid NTA under §1229(a) or (2) commission of enumerated offenses; a final order is not a trigger |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (Sup. Ct. 2018) (defective NTA lacking time/place does not trigger stop-time rule)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (Sup. Ct. 2021) (requires a single document NTA containing all hearing information to trigger stop-time)
- Quebrado Cantor v. Garland, 17 F.4th 869 (9th Cir. 2021) (holding final removal order is not a stop-time trigger)
- United States v. Johnson, 529 U.S. 53 (2000) (statutory exceptions are to be taken as listed; courts should not create additional exceptions)
- Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014) (standard for reviewing BIA denial of motion to reopen)