Eloy Meza Garcia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2021
• Docket: 20-71880
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELOY MEZA GARCIA, No. 20-71880

Petitioner, Agency No. A088-258-508

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted August 30, 2021 Seattle, Washington

Before: HAWKINS, McKEOWN, and GOULD, Circuit Judges.

Petitioner Eloy Meza Garcia seeks review of the decision by the Board of

Immigration Appeals (BIA) denying his motion to reopen his proceedings. Meza

asked the BIA to reopen his case using its sua sponte authority and remand to

allow him to apply for cancellation of removal under Section 240A(a) of the

Immigration & Nationality Act, 8 U.S.C § 1229b(a)(1–3).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Meza obtained lawful permanent resident status in 2008. Shortly thereafter,

the Department of Homeland Security (DHS) placed him in removal proceedings

and charged him with knowingly aiding and abetting the illegal entry of another

noncitizen into the United States. DHS alleges that after visiting family for a few

hours in Mexico, Meza drove his sister-in-law and niece through a vehicle

inspection point and claimed they were his wife and daughter, who are both lawful

permanent residents.

The BIA issued a final order of removal in 2013. After the Supreme Court

held a Notice to Appear (NTA) must contain a date and time to be valid, Pereira v.

Sessions, 138 S. Ct. 2105 (2018), Meza filed a motion with the BIA to reopen his

proceedings sua sponte. Because the NTA he received did not include this

information, he contends it did not stop the accrual of his continuous residence,

making him eligible for cancellation of removal. To be eligible, permanent

residents must have seven years of continuous residence, subject to a “stop-time”

rule specifying when the accrual of residence stops. 8 U.S.C § 1229b(d)(1).

The BIA denied Meza’s motion for two reasons, concluding that his

continuous residence ended either in 2008, when he received a subsequent Notice

of Hearing (NOH) with date and time information, or in 2013, when the BIA

issued a final order of removal. Both reasons are premised on legal error.

We have jurisdiction to review the denial of Meza’s motion under Bonilla v.

2 Lynch, 840 F.3d 575 (9th Cir. 2016). This Court generally lacks jurisdiction to

review the BIA’s discretionary denials of exercising its sua sponte authority, but

we retain limited jurisdiction to review when the denial rests on legal or

constitutional error. See id. at 581, 584. This limited jurisdiction allows us to

ensure that the BIA “made its discretionary decision on the correct understanding

of the applicable legal principles.” Id. at 584.

1. The BIA erred by concluding Meza’s defective NTA could be cured by a

subsequent NOH with the required information. Pursuant to Pereira v. Sessions,

138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the

government must supply all statutorily required information in a single document

to invoke the stop-time rule and end continuous residence (for permanent

residents) or continuous presence (for nonpermanent residents). The subsequent

NOH Meza received was insufficient to cure the defective NTA, and it did not stop

his continuous residence.

2. Nor is a final order of removal a valid basis for denying Meza’s motion

for sua sponte relief. The BIA reasoned that even if the NOH did not cure the

defective NTA, “an alien’s physical presence or residence only continues to accrue

until the entry of a final administrative decision of removal.” But a final removal

order does not trigger the stop-time rule; to hold otherwise would be at odds with

the rule’s unambiguous statutory text. Cantor v. Garland, 17 F.4th 869, 870 (9th

3 Cir. 2021).

Our review is limited to the reasons given on “the face of the BIA’s

decision.” Lona v. Barr, 958 F.3d 1225, 1234 (9th Cir. 2020). We may not supply

a different rationale for the BIA. Because both reasons given by the BIA rest on

legal error, we grant the petition and remand.

PETITION GRANTED AND REMANDED.