Gilberto Garcia-Romo v. Merrick B. Garland

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0294n.06

Case No. 18-3857

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 21, 2021 DEBORAH S. HUNT, Clerk ) GILBERTO GARCIA-ROMO, ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) ) APPEALS MERRICK B. GARLAND, Attorney General, ) Respondent. ) OPINION )

BEFORE: ROGERS, BUSH, and LARSEN, Circuit Judges.

JOHN K. BUSH, Circuit Judge. Gilberto Garcia-Romo is a noncitizen from Mexico. In

his immigration proceedings Garcia-Romo conceded his removability, but he applied for

discretionary 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).

Garcia-Romo received a purported notice to appear in two parts: he received a document

entitled “Notice to Appear” that charged him as subject to removal; then, two months later, he

received a second document providing the date and time of his hearing. Garcia-Romo v. Barr,

940 F.3d 192, 197 (6th Cir. 2019). The first time this case came before us, we held that the Case No. 18-3857, Garcia-Romo v. Garland

combination of those two documents sufficed to stop Garcia-Romo’s physical-presence period,

which meant that he had not reached the ten-year requirement. Id. at 201, 205. 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 Garcia-Romo received. 141 S. Ct. 1474, 1486

(2021). 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 Garcia-Romo’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 Garcia-Romo received

did not trigger the stop-time rule. 141 S. Ct. at 1486. Because that was the basis for the decision

of the Board of Immigration Appeals below, we grant Garcia-Romo’s petition for review, vacate

the BIA’s decision, and remand for proceedings consistent with Niz-Chavez.

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