Chen v. Rosen

Opinion

19-3199 Chen v. Rosen BIA

A078 855 945

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 6th day of January, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 YONG CHEN, AKA XUE LING CHEN, 14 Petitioner, 15 16 v. 19-3199 17 NAC 18 JEFFREY A. ROSEN, ACTING UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Jean Wang, Esq., Flushing, NY. 24 25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 26 Assistant Attorney General;

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Jeffrey A. Rosen is automatically substituted for former Attorney General William P. Barr as Respondent.

1 Stephen J. Flynn, Assistant 2 Director; Lynda A. Do, Trial 3 Attorney, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a

9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED. 12 Petitioner Yong Chen, a native and citizen of the 13 People’s Republic of China, seeks review of a September 30, 14 2019, decision of the BIA denying his motion to reopen. In 15 re Yong Chen, No. A078 855 945 (B.I.A. Sept. 30, 2019). We 16 assume the parties’ familiarity with the underlying facts 17 and procedural history. 18 We review the BIA’s denial of a motion to reopen for 19 abuse of discretion. See Jian Hui Shao v. Mukasey, 546 20 F.3d 138, 168-69 (2d Cir. 2008). Before the BIA, Chen 21 argued that the agency did not have jurisdiction to 22 commence removal proceedings and that he was eligible for 23 cancellation of removal because his notice to appear 24 (“NTA”), which did not contain a hearing date or time, was

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1 deficient under Pereira v. Sessions, 138 S. Ct. 2105 2 (2018), and thus did not vest jurisdiction or stop time for 3 calculating the physical presence required for 4 cancellation. 5 It is undisputed that Chen’s 2018 motion to reopen was 6 untimely because it was filed more than 13 years after his 7 removal order became final in 2005. See 8 U.S.C. 8 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Chen argues 9 that the BIA should have excused the time limit and 10 reopened sua sponte given the intervening decision in 11 Pereira. Because Chen’s underlying arguments are without 12 merit, the BIA did not err in declining either to excuse 13 the time limitation based on Pereira or exercise its 14 authority to reopen sua sponte. See 8 C.F.R. 15 § 1003.2(c)(3) (listing exceptions to the time limitation); 16 Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) 17 (recognizing that BIA may reopen sua sponte, but explaining 18 that remand is appropriate where BIA misperceived the law 19 in declining to exercise that authority); see also INS v. 20 Abudu, 485 U.S. 94, 104 (1988) (motion to reopen may be 21 denied for failure to establish a prima facie case).

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1 In Pereira, the Supreme Court held that the Immigration 2 and Nationality Act unambiguously requires an NTA to 3 include a hearing time and place to trigger the “stop-time 4 rule,” 138 S. Ct. at 2113–20, which cuts off a noncitizen’s 5 accrual of physical presence or residence for the purposes 6 of cancellation of removal, see 8 U.S.C. § 1229b(a), (b), 7 (d)(1). We have rejected the argument that an NTA that 8 omits hearing information is insufficient to vest the 9 immigration court with jurisdiction over removal 10 proceedings “so long as a notice of hearing specifying this 11 information is later sent to the alien.” Banegas Gomez v. 12 Barr, 922 F.3d 101, 112 (2d Cir. 2019). Although Chen’s 13 2002 NTA did not specify the date and time of his initial 14 hearing, he unquestionably received notice of the hearings 15 at which he appeared and thus the BIA did not err in 16 rejecting his jurisdictional argument. 17 We likewise find no error in the BIA’s determination 18 that Chen failed to establish his prima facie eligibility 19 for cancellation of removal because he did not allege that 20 his removal would cause his U.S. citizen son, or another 21 qualifying relative, any specific hardship, much less

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1 “exceptional and extremely unusual hardship.” 8 U.S.C. 2 § 1229b(b)(1)(D); In re Monreal-Aguinaga, 23 I. & N. Dec. 3 56, 62 (BIA 2001) (requiring applicant to show hardship 4 “substantially beyond the ordinary hardship that would be 5 expected when a close family member leaves this country” 6 (internal quotation marks omitted)). Accordingly, we do 7 not reach Chen’s argument that his NTA was ineffective to 8 stop his accrual of physical presence. See INS v. 9 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule 10 courts and agencies are not required to make findings on 11 issues the decision of which is unnecessary to the results 12 they reach.”). 13 For the foregoing reasons, the petition for review is 14 DENIED. All pending motions and applications are DENIED 15 and stays VACATED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court