Gonzalez-Cuevas v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 10, 2021
• Docket: 20-9567
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 10, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JOSE GONZALEZ-CUEVAS,

Petitioner,

v. No. 20-9567 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, Circuit Judge, LUCERO, Senior Circuit Judge, and MORITZ, Circuit Judge. _________________________________

Jose Gonzalez-Cuevas appeals an order from the Board of Immigration

Appeals upholding the denial of his motion to reopen removal proceedings and

consider an application for cancellation of removal. The Board determined that

Gonzalez-Cuevas was not eligible for cancellation of removal because he had not

been present in the United States for a “continuous period” of at least ten years. 8

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). U.S.C. § 1229b(b)(1)(A). Under the stop-time rule, the Board reasoned, Gonzalez-

Cuevas’s continuous-presence period ended when the government sent him a notice

to appear informing him of the removal proceedings, followed by another document a

few weeks later stating the date and time of a hearing.

In its response brief, the government acknowledged that the Board’s decision

conflicted with our decision in Banuelos-Galviz v. Barr, which held that “the stop-

time rule is triggered by one complete notice to appear rather than a combination of

documents.” 953 F.3d 1176, 1178 (10th Cir. 2020). As such, the government

“agree[d] that remand is appropriate.” Aplee. Br. 9.

We abated the appeal, however, pending the Supreme Court’s decision in a

case involving the same stop-time issue we faced in Banuelos-Galviz. The Supreme

Court has now decided that case, Niz-Chavez v. Garland, No. 19-863, 2021 WL

1676619 (Apr. 29, 2021), and the government recognizes that it “is in line with the

. . . holding in Banuelos-Galviz.” Resp’t Status Report 2, May 5, 2021.

Accordingly, we lift the abatement, grant Gonzalez-Cuevas’s petition for

review, and remand for further proceedings. See Artur v. Barr, 819 F. App’x 618, 621

(10th Cir. 2020) (unpublished) (“Because [the Board’s precedent] is no longer good

law in this circuit, we grant the petition for review and remand for the [Board] to

consider the motion to reopen in light of our decision in Banuelos-Galviz.”).

Entered for the Court

Nancy L. Moritz Circuit Judge 2