Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 17, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
MAYRA VERONICA ESTRADA- CARDONA,
Petitioner,
v. No. 21-9562
MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
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. _________________________________
BALDOCK, Circuit Judge. _________________________________ Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 2
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. 8 U.S.C. § 1229b(d)(1). Nothing more,
nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the
Government asks us to hold that the issuance of a final order of removal is a third,
extra-statutory event sufficient to stop the clock. The plain language of the statute
supports no such conclusion. Declining to read ambiguity into a statute where none
exists, we hold a final order of removal does not stop the accrual of continuous physical
presence.
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
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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 8 C.F.R.
§ 1240.26(b)(3)(iii), (e)(1). Petitioner’s other motions were denied by the BIA on
January 23, 2013. Every year—from 2013 to 2017—Petitioner requested a stay of
removal, and every year ICE approved her request. That is, until ICE denied her most
recent request on December 28, 2017. ICE did not take any immediate action to
remove Petitioner from the United States, only requiring her to attend regular check-
ins at the local ICE office. ICE finally detained Petitioner and initiated removal on
September 30, 2020.
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
3 Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 4
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).” 8 U.S.C.
§ 1229b(d)(1)(A). The notice to appear failed to specify the “time and place at which
the proceedings will be held.” Id. § 1229(a)(1)(G)(i). Because the notice to appear
did not stop the clock, Petitioner insisted that she had the requisite presence to be
eligible for cancellation of removal because she had been in the country for 16 years.
See § 1229b(b)(1)(A) (requiring 10 years of continuous physical presence in United
States to be eligible for cancellation of removal). The BIA, recognizing the force of
Petitioner’s argument, found a new reason to cut Petitioner’s presence short: the
Government’s subsequent notice of hearing detailing the time and place of the hearing
“perfected” the initially defective notice to appear triggering the stop-time rule. See
Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (B.I.A. 2019). Because the notice of
hearing “perfected” the notice to appear on October 28, 2009—seven years after
Petitioner entered the United States—she was not, according to the BIA, eligible for
cancellation of removal.
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.
4 Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 5
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, 8 C.F.R. § 1003.2(c)(2) (limiting aliens to one
motion to reopen filed no later than 90 days after the final administrative decision), the
BIA concluded by declining to exercise sua sponte authority to reopen the proceedings
and holding there were no extraordinary circumstances which would warrant equitable
tolling. This petition for review followed.
II.
We have statutory jurisdiction to review the BIA’s denial of a motion to reopen
under 8 U.S.C. § 1252(a)(1) and 28 U.S.C. § 2342. Mata v. Lynch, 576 U.S. 143, 147
(2015). Our statutory jurisdiction, however, is limited to reviewing constitutional or
1 Motion III asked the BIA to “reconsider and reopen the proceedings.” Throughout the opinion, we refer to Motion III as a motion to reopen but it might also be properly characterized as a motion to reconsider.
5 Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 6
legal questions. See 8 U.S.C. § 1252(a)(2)(B), (D); Patel v. Garland, 142 S. Ct. 1614,
1627 (2022).
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
must be ‘concrete, particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling.’” Id. at 409 (quoting
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)); see also Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “The federal courts are under an
independent obligation to examine their own jurisdiction, and standing is perhaps the
most important of the jurisdictional doctrines.” FW/PBS, Inc. v. City of Dall., 493 U.S.
215, 231 (1990) (cleaned up) (quotation omitted). Because of the statutory language
at issue and Petitioner’s removal to Mexico, it has become necessary to assure
ourselves that Petitioner has standing—specifically, we must decide whether a
determination in Petitioner’s favor would likely redress her injury.2 Lujan, 504 U.S.
at 561; see also Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
2 As best we understand it, Petitioner was removed to Mexico despite the Government’s repeated assertion that she was removed to Honduras. 6 Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 7
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.” 8 U.S.C.
§ 1229b(b)(1) (emphasis added). If Petitioner was not removed and still in the United
States, a determination in her favor would clearly enable her to return to the BIA and
ask for reopening so that she can make an application for cancellation of removal. See
id. But Petitioner’s removal complicates this matter. If we decide in Petitioner’s favor
and remand to the BIA, the statutory language suggests she cannot meet the eligibility
requirements for cancellation of removal because any application filed after the BIA’s
reopening would not be immediately preceded by 10 years of continuous presence “in
the United States.” Id. In this situation, any determination in favor of Petitioner would
be unlikely to redress her injury.
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
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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. 8 U.S.C.
8 Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 9
§ 1229b(b)(1)(A). Continuous physical presence accrues under the stop-time rule until
(A) an “alien is served a notice to appear under section 1229(a),” or (B) the alien
commits certain criminal offenses. Id. § 1229b(d)(1). This seemingly simple rule “has
generated outsized controversy,” Niz-Chavez, 141 S. Ct. at 1479, and all of it stems
from the Government’s failure to serve—as required by the statute—“a notice to appear
under section 1229(a).” § 1229b(d)(1).
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.” 8 U.S.C. § 1229(a)(1)(G)(i). For countless aliens,
the only obstacle to being eligible for cancellation of removal was the Government’s
position that a time-and-place-to-be-set notice to appear still triggers the stop-time
rule. In Pereira, the Supreme Court rejected the Government’s atextual interpretation
and held a “putative notice to appear that fails to designate the specific time or place
of the [alien]’s removal proceedings is not a ‘notice to appear under section 1229(a),’
and so does not trigger the stop-time rule.” 138 S. Ct. at 2113–14. In one fell swoop,
the Supreme Court cleared the way for many aliens, like Petitioner, to seek cancellation
of removal.
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
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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.
A.
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.
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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.
8 U.S.C. § 1229b(d)(1). Based on this language, “time will stop accruing when the
alien was (1) served with a notice to appear, or (2) when the alien committed certain
removable offenses.” Torres de la Cruz v. Maurer, 483 F.3d 1013, 1020 (10th Cir.
2007); see Quebrado Cantor v. Garland, 17 F.4th 869, 874 (9th Cir. 2021). The final-
order rule is absent.
“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-
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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 of every period of continuous physical
presence. The statute says “any period of . . . continuous physical presence in the
United States shall be deemed to end” when the stop-time rule applies. 8 U.S.C.
§ 1229b(d)(1) (emphasis added). When used in this context, any means every.
Webster’s Third New International Dictionary 97 (Philip Babcock Gove ed., 1961)
(defining any as “one, no matter what one: every”); 1 The Oxford English Dictionary
539 (J. A. Simpson & E. S. C. Weiner eds., 2d ed. 1989) (“In affirmative sentences it
[i.e., any] asserts concerning a being or thing of the sort named, without limitation as
to which, and thus constructively of every one of them, since every one may in turn be
taken as a representative.”); see Novartis Pharma AG v. Incyte Corp., 520 F. Supp. 3d
514, 527–28 (S.D.N.Y. 2021). Thus, the statute says every period of continuous
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physical presence shall be deemed to end when the stop-time rule applies, leaving no
periods of continuous physical presence to be controlled by the final-order rule. Any
can sometimes mean some, but as it is used in § 1229b(d)(1) the only acceptable
reading is any means every. We must therefore give any its operative meaning and
hold the stop-time rule controls every calculation of continuous physical presence. See
United States v. Butler, 297 U.S. 1, 65 (1936) (“These words cannot be meaningless,
else they would not have been used.”).
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.” § 1229b(d)(1) (emphasis added). When unaccompanied by
words signifying enlargement—like including—the use of the word or creates an
exhaustive list of events sufficient to stop the clock. See Webster’s Third New
International Dictionary, supra, at 1585 (defining or as a “choice between alternative
things”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 132 (2012) (“[T]he word include does not ordinarily introduce an exhaustive
list.”). This means an unenumerated event—like the issuance of a final order of
removal—cannot stop the clock. See United States v. Giordano, 416 U.S. 505, 513
(1974) (holding an executive assistant does not have the power to authorize a wiretap
application under a statute granting that power to the “Attorney General, or any
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Assistant Attorney General specifically designated”). This conclusion is only
bolstered by the statute’s inclusion of the phrase 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 abused” the final-
order rule by “seeking to delay proceedings” until the requisite time had accrued).
Congress’ failure to do so does not “justify judicial legislation.” Ebert v. Poston, 266
U.S. 548, 554 (1925). “[I]f the Congress intended to provide additional exceptions, it
would have done so in clear language.” Petteys v. Butler, 367 F.2d 528, 538 (8th Cir.
1966) (Blackmun, J., dissenting).
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. 8 U.S.C.
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§ 1229b(d)(1) (emphasis added). By using the term shall, instead of may, Congress
made the issuance of a notice to appear or commission of a qualifying crime a
prerequisite for stopping the clock. See Kingdom Techs., Inc. v. United States, 579
U.S. 162, 171–72 (2016) (“Unlike the word ‘may,’ which implies discretion, the word
‘shall’ usually connotes a requirement.”). An extra-statutory event like the issuance
of a final order of removal is insufficient to stop the clock.
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
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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 8 U.S.C. § 1229b(b)(1)(A) (requiring 10 years of continuous
physical presence “in the United States”). We do not have the power to depart from
the statute’s clear text to cure the ills of government inaction. See Niz-Chavez, 141 S.
Ct. at 1485; Pereira, 138 S. Ct. at 2118.
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. 8 U.S.C.
§ 1229b(d)(1)(A). It did not and now countless aliens might be eligible for cancellation
of removal. Instead of accepting its mistake or focusing its energies on Congress (who
might be able to bail it out), the Government has chosen to “continue down the same
old path,” Niz-Chavez, 141 S. Ct. at 1479, asking us to ignore the clear statutory text
in favor of its preferred interpretation. “What the government asks is not a construction
of a statute, but, in effect, an enlargement of it by the court, so that what was omitted,
presumably by inadvertence, may be included within its scope. To supply omissions
transcends the judicial function.” Iselin v. United States, 270 U.S. 245, 251 (1926).
“An omission at the time of enactment, whether careless or calculated, cannot be
judicially supplied however much later wisdom may recommend the inclusion.” Felix
Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 534
(1947).
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“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
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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 this uncertainty,
we must remand to the BIA so that it can reconsider whether to reopen sua sponte
against the correct legal background. Berdiev, 13 F.4th at 1138; see Zzyym v. Pompeo,
958 F.3d 1014, 1033 (10th Cir. 2020) (“If we can’t determine whether the agency
necessarily relied on deficient reasons, it would make little sense to uphold the
agency’s action. In these cases, remand is appropriate.”). On remand, the BIA is free
18 Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 19
to deny or grant reopening sua sponte, and we have no jurisdiction to review such a
decision. Pllumi, 642 F.3d at 160; see Berdiev, 13 F.4th at 1130.
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
3 Petitioner’s motion to reopen was both time- and number-barred. 8 C.F.R. § 1003.2(c)(2). The parties seem to implicitly agree that equitable tolling may excuse both the lateness and duplicity of Petitioner’s motion to reopen. We assume, without deciding, the parties are correct. “We question, however, whether equitable tolling is the appropriate framework for analyzing whether a second motion to [reopen] may be considered, as there is no clock to toll with a number bar.” Omar v. Lynch, 814 F.3d 565, 569 n.1 (1st Cir. 2016). 19 Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 20
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 BIA abused its
discretion in this case by failing to “announce its decision in terms sufficient to enable
a reviewing court to perceive that it has heard and thought and not merely reacted.”
Ismaiel v. Mukasey, 516 F.3d 1198, 1207 (10th Cir. 2008) (quoting Becerra-Jimenez
v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)).
4 Petitioner raised other arguments for equitable tolling, but it is unnecessary to consider these arguments at this stage. 20 Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 21
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.
* * *
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.