Edwin Nunez Castro v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 25, 2020
• Docket: 19-3654
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0119n.06

Case No. 19-3654

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 25, 2020 EDWIN DOLORES NUNEZ CASTRO, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. )

BEFORE: MOORE, KETHLEDGE and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. This appeal presents the same issue that was decided in

Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019): may “a notice to appear” for a removal

proceeding under 8 U.S.C. §§ 1229(a), 1229b(d)(1) be served upon a noncitizen using multiple

installments? Petitioner, Edwin Dolores Nunez Castro, a noncitizen, says no. We said yes in

Garcia-Romo. 940 F.3d at 201. We have no license to overturn Garcia-Romo, Salmi v. Sec’y of

Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), and Castro does not even ask us to do

so. We thus DENY Castro’s petition for review.

I.

Castro is a Salvadoran national who entered the United States without inspection in 2007,

at the age of eighteen. In 2010, he was arrested by Ohio police in connection with a vehicle

accident, and following his incarceration, he was turned over to the Department of Homeland Case No. 19-3654, Castro v. Barr

Security (DHS), which initiated removal proceedings. In the proceedings before the immigration

judge, Castro conceded that he was inadmissible as charged. He sought asylum, withholding of

removal, and relief under the Convention Against Torture. The immigration judge denied Castro’s

application, and the Board of Immigration Appeals affirmed. Castro asked for and was granted

the privilege of voluntary departure.

Castro did not depart as agreed. Instead, in 2018, he filed a motion with the Board to

reconsider its previous removal order, and he sought cancellation of removal, a form of

discretionary relief that the Attorney General may grant to noncitizens to allow them to remain in

the United States if they meet certain eligibility requirements under 8 U.S.C. § 1229b(b)(1). One

of those requirements is that 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.”

8 U.S.C. § 1229b(b)(1)(A). There is no dispute that, at the time Castro filed his motion for

reconsideration and for cancellation of removal, he had been physically present in the United States

since 2007.

However, under the “stop-time” rule established by Congress, the accrual period of

continuous physical presence is “deemed to end . . . when the alien is served a notice to appear

under section 1229(a).” Id. § 1229b(d)(1). A “Notice to Appear,” as defined and referred to in

§ 1229(a)(1), specifies that the noncitizen must be provided with written notice of several different

categories of information, described in subsections (A)-(G) of that statutory provision. One of

those categories is “[t]he time and place at which the [removal] proceedings will be held.” Id.

§ 1229(a)(1)(G)(i).

In January 2010, Castro received a “Notice to Appear” document from DHS that contained

all of the required information under § 1229(a)(1)(A)-(G) except for the time and date of the

2 Case No. 19-3654, Castro v. Barr

removal proceedings. The next month, the Immigration Court sent Castro a document entitled

“Notice of Hearing,” which provided the required time-and-date information.

Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Castro argued to the Board in his

motion for reconsideration that the stop-time rule was never triggered in his removal proceedings

because he never received a single document that contained the information for all requisite

categories. Thus, he argued, he continued to accrue continuous physical presence even after he

received his “Notice to Appear” and “Notice of Hearing.” The Board denied the motion as

untimely, and further found that Castro’s period of continuous physical presence had ended in

2010 when he received a “Notice of Hearing” containing the time-and-date information. The

Board observed that “a [‘Notice to Appear’] that does not include the time and place of an alien’s

initial removal hearing is perfected by the subsequent service of a Notice of Hearing . . . specifying

that missing information.” (R. 7-2 at PageID 7) This petition for review followed.

II.

In his petition, Castro argues that the government is required to satisfy the requirements of

8 U.S.C. § 1229(a)(1)(A)-(G) in a single document, rather than in multiple installments, in order

to serve as “a notice to appear” as used in § 1229b(d)(1) and thus trigger the stop-time rule in that

latter statutory provision. Castro further argues that Pereira v. Sessions dictates this result in his

favor.

But Castro’s argument is foreclosed by our recent decision in Garcia-Romo v. Barr. There,

we held that “written communications to a noncitizen in multiple components or installments may

collectively provide all the information necessary to constitute ‘a notice to appear’ under 8 U.S.C.

§ 1229b(d).” Garcia-Romo, 940 F.3d at 201. We also considered and rejected Castro’s argument

that Pereira dictates the opposite result. Id. at 201, 203 (“Pereira v. Sessions . . . does not compel

3 Case No. 19-3654, Castro v. Barr

a different interpretation than the ordinary meaning applied above. . . . In fact, our holding is

entirely consistent with Pereira.”). The material facts in Garcia-Romo were nearly identical to

those in this case, and Castro does not attempt to distinguish it. Although we decided Garcia-

Romo two days after he filed his opening appellate brief, Castro does not address Garcia-Romo in

a reply brief of otherwise. That case controls and is fatal to his claim.

III.

For the foregoing reasons, we DENY the petition for review.