Figueroa-Diaz v. Garland

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 14, 2021
• Docket: 19-60319
• Status: Unpublished

Opinion

Case: 19-60319 Document: 00515938232 Page: 1 Date Filed: 07/14/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED July 14, 2021 No. 19-60319 Lyle W. Cayce Clerk Robert Noel Figueroa-Diaz,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A200 133 080

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before Wiener, Haynes, and Costa, Circuit Judges. Per Curiam:* Last year, this court denied a petition for review of the Board of Immigration Appeals’ decision to deny Figueroa-Diaz’s motion to reopen.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin- ion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60319 Document: 00515938232 Page: 2 Date Filed: 07/14/2021

No. 19-60319

Figueroa-Diaz v. Barr, 812 F. App’x 278 (5th Cir. July 17, 2020). 1 We did so based on our then-existing precedent holding that the stop-time rule, which stops the clock on the period of physical presence required for cancellation of removal, could be triggered by multiple documents providing the required notice for a removal hearing. See id. at 279 (citing Yanez-Pena v. Barr, 952 F.3d 239, 241 (5th Cir. 2020), vacated sub nom. Yanez-Pena v. Garland, No. 19-1208, 2021 WL 1725146 (U.S. May 3, 2021)). The Supreme Court has now rejected our rule, holding that a notice to appear sufficient to trigger the stop-time rule is a single document containing all the required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). In this case, the Supreme Court granted the petition for writ of certiorari, vacated our prior decision, and remanded for reconsideration in light of Niz-Chavez. Figueroa-Diaz v. Garland, No. 517, 2021 WL 1725148 (U.S. May 3, 2021). As a result, this matter is REMANDED to the Board of Immigration Appeals (BIA) in accordance with the judgment of the Supreme Court. Although the government asks us to affirm on alternative grounds, we think the best course is to remand to the BIA in light of Niz- Chavez. We in no way limit the issues the BIA may consider on remand. The mandate shall issue forthwith.

1 We also dismissed for lack of jurisdiction Figueroa-Diaz’s petition seeking review of the BIA’s refusal to reopen the proceedings sua sponte. That aspect of this petition for review is not being remanded.