Edwin Castro v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 1, 2021
• Docket: 19-3654
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0305n.06

Case No. 19-3654

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 01, 2021 DEBORAH S. HUNT, Clerk EDWIN CASTRO, ) ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) ) APPEALS MERRICK B. GARLAND, Attorney General, ) Respondent. ) OPINION

BEFORE: MOORE, KETHLEDGE, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. Gilberto Garcia-Romo is a noncitizen from El Salvador.

In his immigration proceedings, Castro sought cancellation of removal under 8 U.S.C. § 1229b(b).

To qualify for cancellation of removal, a noncitizen must have been physically present in the U.S.

for the ten years preceding his cancellation-of-removal application. 8 U.S.C. § 1229b(b)(1)(A).

But that physical-presence period is deemed to stop when a noncitizen receives a proper notice to

appear for his immigration proceeding. Id. § 1229b(d)(1). That statutory cutoff is called the “stop-

time rule.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1479 (2021).

Castro received a purported notice to appear in two parts: first, he received a document

entitled “Notice to Appear” that charged him as subject to removal; then, a month later, he received

a second document providing the date and time of his hearing. Castro v. Barr, 795 F. App’x 446,

447 (6th Cir. 2020). The first time this case came before us, our precedent dictated that the Case No. 19-3654, Castro v. Garland

combination of those two documents sufficed to stop Castro’s physical-presence period, which

meant that he had not reached the ten-year requirement. Id. 447–48 (citing Garcia-Romo v. Barr,

940 F.3d 192, 201 (6th Cir. 2019), vacated, 2021 WL 1725158 (U.S.)). In Niz-Chavez v. Garland,

the Supreme Court reached the opposite conclusion for a petitioner who received a combination

of documents similar to those that Castro received. 141 S. Ct. at 1486. The Court held that the

government must provide a single document containing all of the information required by 8 U.S.C.

§ 1229(a) for the document to be a notice to appear and thus stop a noncitizen’s physical-presence

period. Id. So the Court vacated our decision in Castro’s case and remanded it to us. Garcia-

Romo v. Garland, No. 19-1316, 2021 WL 1725158 (U.S. May 3, 2021).

Niz-Chavez makes clear that the combination of the two documents Castro received did not

trigger the stop-time rule. 141 S. Ct. at 1486. Because that was the basis for the Board of

Immigration Appeals’s decision below, we grant Castro’s petition for review, vacate the BIA’s

decision, and remand for proceedings consistent with Niz-Chavez.

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