Estrada-Cardona v. GarlandEstrada-Cardona v. Garland
Petition for Review of an Order from the Board of Immigration Appeals
Jennifer M. Smith of Jennifer Smith Law Office, Glenwood Spring, Colorado (Mark R. Barr of Lichter Immigration, Denver, Colorado, with her on the briefs), for Petitioner.
Keith McManus, Office of Immigration Litigation (Brian Boynton, Acting Assistant Attorney General, Civil Division; Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation; Spencer S. Shucard, Trial Attorney, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, D.C., for Respondent.
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses.
I.
In 2002, Petitioner Mayra V. Estrada-Cardona entered the United States on a tourist visa which she subsequently overstayed. She resided in the United States with her two United States citizen children: A.E. and L.E. A.E. suffers from mental and physical disabilities, some of which are likely to be lifelong. While in the United States, Petitioner played a key role in ensuring A.E. received physical therapy and special education support—both vital to A.E.‘s wellbeing and continued progress.
All was quiet until May 29, 2009, when police arrested Petitioner for driving without a license. She pleaded guilty and paid the associated fines. As a result of the traffic violation, Immigration and Customs Enforcement (“ICE“) detained Petitioner and began removal proceedings. Pursuant to the then-prevailing practice, the Government issued Petitioner a notice to appear ordering her to appear before an immigration judge on a date and time “to be set.” Five months later, the Government sent Petitioner a notice of hearing setting the date and time of her hearing.
At the hearing, Petitioner appeared unrepresented and conceded the charge contained in the notice to appear—rendering her removable. At the time, Petitioner was in the country for at most seven years, making her statutorily ineligible for any discretionary relief from removal. The immigration judge therefore ordered Petitioner to voluntarily depart the United States.
A month later, Petitioner filed a flurry of motions. One of these motions, a motion to stay the voluntary departure pending the resolution of her other motions, effectively converted her voluntary departure into a removal. See
In the period between the denial of Petitioner‘s request to stay removal and her removal, Petitioner filed two post-proceeding motions which set up the issue in this appeal. In what the parties call Motion II, Petitioner asked the BIA to reopen the removal proceedings pursuant to the then-recent Supreme Court case Pereira v. Sessions, 138 S. Ct. 2105 (2018). Based on Pereira, Petitioner continued to accrue presence for cancellation of removal—a form of discretionary relief the Attorney General can grant otherwise-removable aliens—even after receiving the notice to appear because it was not “a notice to appear under section 1229(a).”
The BIA‘s notice-by-installment theory was short-lived. In 2020, we held “the stop-time rule is not triggered by the combination of an incomplete notice to appear and a notice of hearing.” Banuelos-Galviz v. Barr, 953 F.3d 1176, 1184 (10th Cir. 2020). And in 2021, the Supreme Court agreed. Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). After our decision in Banuelos-Galviz, Petitioner filed another post-proceeding motion—which the parties call Motion III—arguing once again that the BIA should reopen her proceedings given her apparent eligibility for cancellation of removal.1 Dusting off its old precedent, the BIA invoked the so-called “final-order rule” to cut Petitioner‘s presence short. The stop-time rule‘s predecessor, the final-order rule cuts off presence when a final order of removal is issued. See Garcia, 24 I. & N. Dec. 179, 181 (B.I.A. 2007). Applying this rule, the BIA held Petitioner was not eligible for cancellation of removal because the immigration judge issued the order to voluntarily depart, which qualifies as a final order of removal, when Petitioner had accrued, at most, eight years of physical presence. Additionally, because Motion III was both time- and number-barred,
II.
We have statutory jurisdiction to review the BIA‘s denial of a motion to reopen under
We also have constitutional jurisdiction, but it demands a more detailed explanation. Article III limits the federal courts’ jurisdiction to certain “Cases” and “Controversies.” Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 408 (2013). One element of the case-or-controversy requirement is that plaintiffs must establish they have standing to sue. Id. “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Id. “To establish Article III standing, an injury
The cancellation of removal statute states: “The Attorney General may cancel removal of, . . . an alien who is inadmissible or deportable from the United States if the alien has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.”
At oral argument, Petitioner explained that if she successfully reopened her proceedings, she could ask the BIA to treat an application for cancellation of removal as if it were filed before Petitioner was removed. Oral Argument 4:20–5:24. See generally Edwards v. INS, 393 F.3d 299, 308–09 (2d Cir. 2004) (explaining the role of nunc pro tunc (literally “now for then“) in the field of immigration law). We have no occasion to consider the merit or appropriateness of such an argument, but we hold it is sufficient to establish Article III standing. If we decide this case in Petitioner‘s favor and remand, she can ask the BIA to treat any post-reopening application for cancellation of removal as if it were immediately preceded by 10 years of continuous physical presence in the United States—meaning a favorable decision by this Court could redress her injury. Petitioner has Article III standing.
The same line of reasoning leads us to conclude that Petitioner‘s removal does not moot this case. Petitioner can benefit from relief in this Court by pursuing her application for cancellation of removal on remand. Lopez v. Gonzales, 549 U.S. 47, 52 n.2 (2006). Having assured ourselves that Petitioner has standing, and her claim is not moot, we proceed to the merits.
III.
We review the BIA‘s denial of a motion to reopen for an abuse of discretion. Berdiev v. Garland, 13 F.4th 1125, 1130 (10th Cir. 2021). “The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Qiu v. Sessions, 870 F.3d 1200, 1202 (10th Cir. 2017) (quoting Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013)). If the BIA commits a legal error—a determination we make de novo—it necessarily follows that the BIA abused its discretion. See id.; Ferry v. Gonzales, 457 F.3d 1117, 1126 (10th Cir. 2006).
IV.
This petition for review represents the latest chapter in the Government‘s ongoing efforts to dig itself out of a hole it placed itself in. The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States.
For years, if not decades, the Government sent aliens “notices to appear” which failed to include all the information required by § 1229(a)—like the “time and place at which the proceedings will be held.”
But the Government quickly erected a new hurdle. The Government‘s new position was that it could trigger the stop-time rule by serving a second document, a notice of hearing, detailing the time and place of the proceedings. In its view, the notice of hearing cured the initially defective notice to appear. Criticizing the Government for continuing “down the same old path,” the Supreme Court once again rejected the Government‘s atextual interpretation. Niz-Chavez, 141 S. Ct. at 1479. The stop-time rule requires service of “a” notice to appear, and “‘a’ notice would seem to suggest just that: ‘a’ single document containing the required information, not a mishmash of pieces with some assembly required.” Id. at 1480.
This brings us to the present appeal, where the Government‘s flavor-of-the-day is the final-order rule. The Government argues the final-order rule—which ends continuous physical presence when the immigration judge issues a final order of removal—operates in cases where the stop-time rule was never triggered. The narrow issue before us is whether the text of the stop-time rule can support such a reading. Our analysis proceeds in two steps. First, considering “all the textual and structural clues” bearing on the meaning of the statutory stop-time rule, id., we conclude the stop-time rule replaced the final-order rule. Second, we remand for the BIA to reconsider whether to reopen sua sponte or apply equitable tolling.
Congress enacted the stop-time rule as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546. Before the stop-time rule, the final-order rule controlled when the period of continuous physical presence was deemed to end. See Garcia, 24 I. & N. Dec. at 181. Even though the statutory stop-time rule makes no mention of the final-order rule, the Government asserts we must give Chevron deference to the BIA‘s interpretation that the final-order rule not only survived the enactment of the stop-time rule but operates in cancellation cases where the stop-time rule is never triggered.
The Government skips a step: we cannot defer to an agency‘s interpretation of a statute until we exhaust all the textual and structural clues bearing on the meaning of that statute and conclude Congress has not addressed the question at issue. Niz-Chavez, 141 S. Ct. at 1480; Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 843 n.9 (1984). If, after employing traditional tools of statutory construction, we resolve the interpretive question put before us, “our sole function is to apply the law as we find it, not defer to some conflicting reading the government might advance.” Niz-Chavez, 141 S. Ct. at 1480 (cleaned up). “[A]n agency‘s interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear.” MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994).
We need not go further than the statute‘s text to conclude the stop-time rule supplanted, rather than supplemented, the final-order rule. The stop-time rule reads:
For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) . . ., when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed [certain removable offenses], whichever is earliest.
“Straining to inject ambiguity into the statute,” Pereira, 138 S. Ct. at 2116, the Government asserts that Congress was “silent” on the question of whether the final-order rule survived the enactment of the stop-time rule and operates in cancellation cases where the stop-time rule is not triggered. Congress was “silent” in the sense it did not say: “The final-order rule no longer ends the period of continuous physical presence.” But Congress can specifically address an issue without speaking explicitly. For example, even though Congress never explicitly told the FDA it did not have authority to regulate nicotine under the Food, Drug, and Cosmetic Act, the Supreme Court nevertheless held Congress directly spoke to that issue and “precluded the FDA‘s jurisdiction to regulate tobacco products.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000).
Three clauses in the stop-time rule require us to hold Congress replaced, rather than supplemented, the final-order rule. First, the statute‘s use of the word any means the stop-time rule controls the calculation
Second, the stop-time rule provides an exhaustive list of events sufficient to end the period of continuous physical presence and the issuance of a final order of removal is not one of them. The statute states that every period of continuous physical presence shall end “(A) . . ., when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed [certain removeable offenses], whichever is earliest.”
The Government would effectively have us revise the statute so that there is a third trigger: (C) the issuance of a final order of removal. In the Government‘s view, we must adopt such a reading to carry out the spirit, but not the text, of the law. When adopting the stop-time rule, the Government continues, Congress could never have contemplated a situation like Petitioner‘s where aliens were in the throes of removal proceedings—or even already ordered removed—but were still accruing presence. “The question, however, is not what Congress ‘would have wanted’ but what Congress enacted.” Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 618 (1992). Congress knew about the final-order rule and could have included it in the statute as a third basis for stopping the clock. See H.R. Rep. No. 104-469, at 122 (1996) (explaining, in the context of justifying the proposed stop-time rule, that aliens “often
Third, the statute‘s mandatory language leads to the inescapable conclusion that the final-order rule cannot end the period of continuous physical presence. The statute commands that any period of continuous physical presence ”shall be deemed to end” when the alien is served a notice to appear or commits a qualifying crime.
Putting these clauses together, the stop-time rule applies to every calculation of continuous physical presence and requires the occurrence of one of only two possible events to stop the clock. We cannot say Congress was “silent” or “ambiguous” about the question of whether a third, extra-statutory event was sufficient to stop the clock—an ordinary reader would understand it is not. Chevron, 467 U.S. at 843; Niz-Chavez, 141 S. Ct. at 1480. “Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident‘s period of continuous physical presence and settled, in its legislative judgment, on only two.” Quebrado Cantor, 17 F.4th at 874.
The Government can only fall back to legislative history and policy arguments to support its atextual reading of the stop-time rule. Correctly noting the stop-time rule was passed to remove the alien‘s incentive to delay removal proceedings by moving the stop-time trigger from the end of the proceedings to the beginning, the Government argues that our reading of the statute is wrong because it “thwarts the purpose of IIRIRA by not only incentivizing delay but exacerbating the issue, encouraging noncitizens with final, active removal orders to remain in the United States as long as possible.” Br. for Resp‘t 18–19 (cleaned up). But this perverse incentive is entirely of the Government‘s own making. The Government could have stopped the accumulation of continuous physical presence by issuing a proper notice to appear, see Quebrado Cantor, 17 F.4th at 874, or by executing the immigration judge‘s order and removing Petitioner, see
After years of statutory short-circuiting, the Government finds itself in the uncomfortable position of being wrong. To stop the clock, all the Government had to do was serve an alien with a statutorily compliant notice to appear.
“At the end of the day, given the clarity of the plain language, we apply the statute as written” and hold a final order of removal is insufficient to stop the clock. Pereira, 138 S. Ct. at 2119–20 (quotation omitted); see Quebrado Cantor, 17 F.4th at 874. Because Congress unambiguously replaced the final-order rule with the stop-time rule, the BIA‘s application of the final-order rule was legal error. Petitioner continued to accrue continuous physical presence after the immigration judge issued the order to voluntarily depart.
B.
Having concluded the BIA‘s decision rests on legal error, the remaining question is whether to remand. The BIA relied on two independent and sufficient grounds to deny Petitioner‘s motion to reopen: (1) Petitioner‘s motion was untimely and the BIA declined to reopen the proceedings sua sponte or equitably toll the deadline; and (2) even if Petitioner‘s motion was timely, the final-order rule prevented her from satisfying the presence requirement for cancellation of removal. Even after resolving the second issue in favor of Petitioner, we can only remand if there is reason to believe the erroneous final-order rule analysis may have infected the BIA‘s decision to not reopen the proceedings sua sponte, Berdiev, 13 F.4th at 1130, or if the BIA‘s equitable tolling analysis is “devoid of any reasoning, or contains only summary or conclusory statements.” Qiu, 870 F.3d at 1202 (quoting Maatougui, 738 F.3d at 1239). We take each in turn and conclude remand is appropriate.
In the exercise of its discretion, the BIA may overlook the untimeliness of a motion to reopen by reopening the proceedings sua sponte. We generally lack jurisdiction to review the BIA‘s refusal to reopen sua sponte, “because there are no standards by which to judge the agency‘s exercise of discretion.” Berdiev, 13 F.4th at 1130 (quoting Jimenez v. Sessions, 893 F.3d 704, 708–09 (10th Cir. 2018)). But where the BIA “may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (cleaned up), we may exercise limited jurisdiction to “remand to the BIA so it may exercise its [sua sponte] authority against the correct legal background.” Pllumi v. Attorney Gen., 642 F.3d 155, 160 (3d Cir. 2011) (quotation omitted); see Reyes-Vargas v. Barr, 958 F.3d 1295, 1300 (10th Cir. 2020).
After erroneously concluding Petitioner was not eligible for cancellation of removal based on the final-order rule, the BIA concluded by saying: “Finally, we decline to exercise our discretionary sua sponte authority to reopen these proceedings for the [Petitioner] to apply for cancellation of removal.” Given this sentence follows the BIA‘s comparatively in-depth application of the final-order rule (two paragraphs versus one sentence), we cannot discern whether the BIA declined to exercise its sua sponte authority based on an erroneous view of the law. In light of
As an alternative basis for excusing her motion‘s lateness, Petitioner argued she was entitled to equitable tolling.3 Equitable tolling is appropriate where the movant shows (1) that she has been pursuing her rights diligently, and (2) that some extraordinary circumstance stood in her way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). In rejecting Petitioner‘s equitable tolling arguments, the full extent of the BIA‘s analysis was “we find no extraordinary circumstance which would warrant equitable tolling of the [Petitioner]‘s motion” with a general cite to Holland—a prisoner habeas corpus case. Our only concern is whether this analysis was so cursory or conclusory that it constitutes an abuse of discretion. Qiu, 870 F.3d at 1202. We do not, in any way, prejudge whether Petitioner is entitled to equitable tolling.
The Government argues the BIA‘s analysis could not be too cursory because Petitioner‘s equitable tolling argument before the BIA was itself cursory. (By limiting its present discussion of sua sponte reopening and equitable tolling to one footnote, the Government is doing the same thing.) In her motion to reopen, Petitioner argued Pereira and Banuelos-Galviz “constitute[d] an extraordinary circumstance” preventing her timely filing.4 Equitable tolling claims “based on changes in the law are not unheard of.” Lona v. Barr, 958 F.3d 1225, 1230–31 (9th Cir. 2020). The Fifth Circuit, for example, remanded for the BIA to consider a change-in-the-law equitable tolling claim in Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016). And on remand, the BIA accepted that the change in law justified equitable tolling. Lugo-Resendez, 2017 WL 8787197, at *3 (B.I.A. Dec. 28, 2017).
Based on our research, the closest we came to recognizing such a claim was in an unpublished decision: Olivas-Melendez v. Wilkinson, 845 F. App‘x 721 (10th Cir. 2021). There, the petitioner argued the lateness of his motion to reopen “should be subject to equitable tolling because upon learning of a fundamental change in the law he acted with due diligence.” Id. at 727 (cleaned up). We ultimately affirmed the BIA‘s decision denying equitable tolling, but we said nothing about whether changes in the law can serve as a basis for equitable tolling. Because it is unnecessary to answer that question today, we do not. Instead, we hold that because the BIA seems to have considered change-in-the-law equitable tolling arguments before, the
One sentence, devoid of any analysis, concluding there was no extraordinary circumstance which would warrant equitable tolling is insufficient for us to perceive the BIA reasoned at all—at least when the sentence appears in the wake of a more analytically substantial but erroneous application of the final-order rule. See Qiu, 870 F.3d at 1202. There are, in these circumstances, too many “danger signals” suggesting the BIA “has not genuinely engaged in reasoned decision-making.” Greater Bos. Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970). We cannot discern why the BIA found no extraordinary circumstance which would warrant equitable tolling, so the BIA abused its discretion. This is not to say that the BIA cannot once again conclude Petitioner is ineligible for equitable tolling. Instead, we narrowly conclude the BIA‘s equitable tolling analysis was too perfunctory for judicial review, meaning remand is appropriate. See Qiu, 870 F.3d at 1202, 1206.
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Nothing in this opinion should be read to express a view on the ultimate merits of Petitioner‘s case. On remand, the Government is free to argue that Petitioner should not be granted sua sponte reopening or equitable tolling. This opinion is expressly limited to two conclusions. First, the BIA‘s application of the final-order rule was legal error. Second, the BIA‘s explanations for denying sua sponte reopening and equitable tolling constituted, as a procedural matter, an abuse of discretion.
For the reasons stated herein, we GRANT the petition for review and REMAND to the BIA for further proceedings not inconsistent with this opinion.