19-1911 Jiang v. Garland
In the United States Court of Appeals for the Second Circuit
AUGUST TERM 2021
No. 19-1911
NAIZHU JIANG, Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. ∗
On Appeal from the Board of Immigration Appeals
SUBMITTED: NOVEMBER 8, 2021 DECIDED: NOVEMBER 24, 2021
The Clerk of Court is directed to amend the caption as above. ∗
See Fed. R. App. P. 43(c)(2). Before: LEVAL, CABRANES, and CHIN, Circuit Judges.
Petitioner Naizhu Jiang petitions for review of a May 30, 2019 decision of the Board of Immigration Appeals denying his motion to reopen proceedings. Recent Supreme Court jurisprudence has established that Notices to Appear issued under 8 U.S.C. § 1229(a)(1) that fail to provide time-and-place information for removal proceedings in a single document do not satisfy the statutory requirements in 8 U.S.C. § 1229(a)(1), and thus do not cut off the alien’s time of continuous presence in the United States needed for discretionary relief from removal. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). The question presented in this case is whether an Order to Show Cause, an older version of a charging document issued pursuant to 8 U.S.C. § 1252b(a)(1) (1994) prior to the enactment of 8 U.S.C. § 1229(a)(1), need also provide that information in a single document in order to cut off the alien’s continuous presence in the United States. We answer “no,” and accordingly DENY Jiang’s petition for review.
Meer M. M. Rahman, New York, NY, for Petitioner.
Joseph H. Hunt, Assistant Attorney General; Leslie McKay & Margot L. Carter, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.
2 PER CURIAM:
Congress has long afforded the Executive Branch discretion to
allow otherwise removable aliens to remain in the United States. To
be eligible for certain forms of this discretionary relief from removal,
an alien must show that he or she has maintained a “continuous
physical presence” in the United States for a specified number of years
(the “residency” requirement). In 1996, Congress passed a statute —
the Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), Pub. L. No. 104–208, 110 Stat. 3009-546 — which, among
other things, stopped an alien’s residency clock once the alien received
a charging document that thereby commences the alien’s removal
proceedings; in other words, any time the alien would spend in the
United States after receiving the charging document would not be
credited towards the residency requirement. Congress made this so-
called stop-time rule applicable not only to the new charging
documents to be issued under the IIRIRA — which are designated by
3 the statute as “Notice[s] to Appear” (“NTAs”) — but also retroactively
applied the stop-time rule to older charging documents issued under
the previous statute, which were designated as Orders to Show Cause
(“OTSCs”). Recent Supreme Court cases have held that, in order to
trigger the stop-time rule, the time and place of the alien’s removal
hearing must be included in a single NTA. Niz-Chavez v. Garland, 141
S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). The
question presented in this case is whether the same requirement
applies to the older OTSCs issued to aliens prior to the IIRIRA. We
hold that it does not.
I.
Petitioner Naizhu Jiang is a native and citizen of China. He
entered the United States on September 19, 1994, without inspection,
and was served the next day with an OTSC alleging that he was subject
to deportation pursuant to Section 241(a)(1)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (1994). In the section of the
4 OTSC — issued by the Immigration and Naturalization Service —
ordering him to appear before an immigration judge (“IJ”), instead of
specifying a time and place, the OTSC stated that the hearing was “[t]o
be calendared and notice [would be] provided by the office of the [IJ]”
by subsequent mailing. Certified Administrative Record at 166. That
subsequent notice was mailed to Jiang on February 15, 1995, informing
him that a hearing before the immigration court had been scheduled
on March 22, 1995.
After a series of further notices rescheduling the hearing, as well
as Jiang’s successful motion to transfer venue from Buffalo to the New
York City immigration court, Jiang attended his first hearing before an
IJ on August 31, 1995. Through counsel, he submitted an application
for asylum and withholding of deportation, or — in the alternative —
requested voluntary departure. At a hearing held on April 8, 1996, a
different IJ did not find Jiang’s testimony to be credible and denied his
application for asylum and for withholding of deportation; she did,
5 however, grant Jiang’s request for voluntary departure. Jiang
appealed to the Board of Immigration Appeals (“BIA”), which
summarily dismissed his appeal. In re Naizhu Jiang, No. A 073 200 066
(B.I.A. Jan. 16, 1997).
Jiang, however, declined to leave the United States, and has
remained here since then. In the intervening years, he has fathered
two children, both of whom are American citizens, and he has had no
criminal record or criminal proceedings initiated against him. And on
September 17, 2018 — more than twenty years after the BIA summarily
dismissed his original appeal — he moved before the BIA to reopen
his case. Since his first appeal was dismissed by the BIA two decades
ago, a number of important changes took place to the immigration
laws.
6 First, Congress passed the IIRIRA, 1 which “established several
new terms of art in immigration law.” Rojas-Reyes v. I.N.S., 235 F.3d
115, 120 (2d Cir. 2000). For example, the IIRIRA created a new type of
charging document to be served on aliens — the NTA — which
replaced the older OTSC. Compare 8 U.S.C. § 1252b(a)(1) (1994)
(describing the OTSC) with 8 U.S.C. § 1229(a)(1) (describing the NTA).
The law also replaced an older type of discretionary relief, “suspension
of deportation,” with a new form of relief, “cancellation of removal.”
To qualify for cancellation of removal under the IIRIRA, aliens were
required to satisfy stricter eligibility requirements, including a longer
period of residence in the United States: ten years of continuous
physical presence in the country in most cases for cancellation-of-
removal eligibility, as opposed to seven years for the older
“suspension of deportation.” Compare 8 U.S.C. § 1254(a)(1) (1994)
1The IIRIRA, though signed into law on September 30, 1996, went into effect on April 1, 1997, i.e., after Jiang’s initial appeal was decided by the BIA.
7 (describing suspension-of-deportation eligibility) with 8 U.S.C. §
1229b(b)(1) (describing cancellation-of-removal eligibility).
Apart from increasing the amount of time an alien had to be
physically present in the United States in order to be eligible for
discretionary relief, the IIRIRA also created a new method for
calculating that time. The IIRIRA introduced the stop-time rule, a
provision that “terminates an alien’s accrual of time-in-residence upon
the service of the charging document that initiates removal
proceedings.” Rojas-Reyes, 235 F.3d at 120; see 8 U.S.C. § 1229b(d)(1)
(“[A]ny period of continuous residence or continuous physical
presence in the United States shall be deemed to end . . . when the alien
is served a notice to appear under section 1229(a).”). And while the
IIRIRA generally applies only to proceedings initiated on or after the
statute’s effective date of April 1, 1997, see IIRIRA § 309(c)(1), 110 Stat.
at 3009-625 (codified at 8 U.S.C. § 1101 note), Congress also
retroactively applied the IIRIRA’s stop-time rule upon service of
8 OTSCs issued before its enactment, IIRIRA § 309(c)(5), 110 Stat. 3009-
627 (1996), amended by the Nicaraguan Adjustment and Central
American Relief Act of 1997 (“NACARA”), Pub. L. No. 105-100, Title
II, 111 Stat. 2160, 2193-2201 (Nov. 19, 1997), further amended by Pub. L.
No. 105-139, 111 Stat. 2644 (Dec. 2, 1997). 2
Next, in 2018, the Supreme Court held that an NTA failing to
designate the specific time or place of an alien’s removal proceedings
was insufficient to fulfill the IIRIRA’s statutory requirements and was
therefore ineligible to trigger the stop-time rule. Pereira, 138 S. Ct. at
2114. In Pereira, the petitioner received a putative NTA that did not
2 The IIRIRA originally contained transitional rules providing that the stop-time rule would apply to NTAs “issued before, on, or after” the date of the IIRIRA’s enactment. IIRIRA § 309(c)(5), 110 Stat. at 3009-627. This language caused understandable confusion since no NTAs could have been issued before the IIRIRA’s enactment as the statute itself created this novel charging document. See Rojas Reyes, 235 F.3d at 120. Recognizing this confusion, Congress subsequently passed the NACARA, which — among other things — replaced the words “notices to appear” with “orders to show cause” in the relevant IIRIRA transitional rule.
9 specify the date and time of his removal hearing. Construing Section
1229(a)(1)’s instruction that an NTA should “specif[y]” — among
other things — “[t]he time and place at which the proceedings will be
held,” 8 U.S.C. § 1229(a)(1)(G)(i), the Court found that the putative
NTA issued to the petitioner did not meet the statutory requirements
of Section 1229(a)(1)(G)(i) and could not, therefore, trigger Section
1229b(d)(1)’s stop-time rule, which only applies “when the alien is
served a notice to appear under section 1229(a).” 138 S. Ct. at 2114.
In September 2018, shortly after that case was decided, and
relying on its holding, Jiang moved the BIA to reopen his case. He
pointed to the fact that the original OTSC he received on September
20, 1994, did not specify the time or place of his deportation
proceedings and argued on the basis of Pereira that the stop-time rule
had not been triggered in his case. Consequently, he argued, he had
been continuously present in the United States for more than ten years
10 and was thus eligible for relief under the IIRIRA’s cancellation-of-
removal provisions, 8 U.S.C. § 1229b(b)(1).
The BIA denied Jiang’s motion. First, it noted that motions to
reopen must generally be filed “within 90 days of the date of entry of
a final administrative order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i);
see also 8 C.F.R. § 1003.2(c)(2), and that Jiang’s motion was therefore
untimely. 3 Next, the BIA found that — even if it were to equitably toll
the 90-day deadline — the fact that Jiang had been issued a subsequent
notice on February 15, 1995, containing the time and location for his
initial hearing meant that his continuous physical presence ended on
that day pursuant to the stop-time rule. In re Naizhu Jiang, No. A 073
200 066 (B.I.A. May 30, 2019) (citing In re Mendoza-Hernandez & Capula-
Cortes, 27 I. & N. Dec. 520, 529 (B.I.A. 2019)). Jiang timely filed before
this Court a petition for review of the BIA’s decision.
3Jiang’s removal order became final on January 16, 1997, when the BIA summarily dismissed his appeal of the IJ’s order. His motion to reopen was filed on September 17, 2018.
11 While this matter was pending before this Court and after the
parties submitted their briefs, the Supreme Court decided another case
concerning NTAs that fail to include the statutorily required time and
place of hearing. In Niz-Chavez v. Garland, the petitioner there received
a putative NTA containing the charges against him, but which did not
specify the time or place of his hearing. 141 S. Ct. at 1479. Two months
later, the Government sent the petitioner a second document
containing the time and place of his hearing. Id. The Government
conceded that, under Pereira, the first document was insufficient to
trigger the stop-time rule, but argued that upon receipt of the second
document, all the information statutorily required under Section
1229(a)(1) had been provided and that the stop-time rule should have
triggered. Id. The Supreme Court rejected the Government’s position,
and instead clarified that Section 1229(a)(1) — which describes the
information required in “a ‘notice to appear’” (emphasis added) —
demands that the information be provided in a single NTA. Id. at 1480.
12 We now consider in this appeal whether the holdings in Pereira
and Niz-Chavez concerning the requirement that time and place of
hearing be specified in a single NTA in order to successfully trigger
the stop-time rule applies also to OTSCs issued prior to the IIRIRA.
We conclude that they do not.
II.
When considering a petition for review of an order denying a
statutory motion to reopen, we review the BIA’s conclusions of law de
novo. Luna v. Holder, 637 F.3d 85, 102 (2d Cir. 2011). “When the BIA
has applied the correct law, its decision to deny a motion to reopen
deportation proceedings is reviewed to determine whether the
decision was arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with the law.” Iavorski v. U.S. I.N.S., 232 F.3d 124,
128 (2d Cir. 2000) (internal quotation marks omitted).
III.
13 Admittedly, the situation in Niz-Chavez appears to be
remarkably similar to the one presented here: Jiang too received a
charging document that omitted the time and place of his relevant
proceedings. He too then received subsequent notice of the time and
place by separate document, and now similarly protests the BIA’s
conclusion that the stop-time rule was triggered on February 15, 1995
— the date on which he received the second notice.
Jiang’s situation differs, however, from Niz-Chavez in one crucial
respect: Jiang was charged with a pre-IIRIRA document, an OTSC,
while the relevant charging document in Niz-Chavez was a post-
IIRIRA NTA. This difference is dispositive.
Niz-Chavez, along with Pereira before it, were cases of statutory
interpretation; they interpreted and applied the requirements imposed
on NTAs by the IIRIRA. On the basis of Section 1229(a)(1), the
Supreme Court held first that an NTA sufficient to trigger the stop-
time rule must “specif[y] . . . [t]he time and place at which the
14 proceedings will be held,” Pereira, 138 S. Ct. at 2114 (quoting 8 U.S.C.
§ 1229(a)(1)(G)(i)) (second alteration in original), and next that all the
information specified by the statute must be contained in “a” single
NTA document, Niz-Chavez, 141 S. Ct. at 1480 (quoting 8 U.S.C. §
1229(a)(1)). The problem for Jiang is that his charging document — an
OTSC — is a creature not of Section 1229(a)(1), but rather, of a
completely separate statutory provision: the since-repealed Section
1252b(a)(1). In other words, Niz-Chavez and Pereira are not controlling
in his case.
Moreover, the statutory provisions describing what information
pre-IIRIRA OTSCs (as opposed to NTAs) must include further belie
Jiang’s argument that the OTSC he received was insufficient to trigger
the stop-time rule. Unlike the IIRIRA’s NTA provisions, the older
OTSC statutory provisions do not list the time and place of the
proceedings as required information to be included in the OTSC. See
8 U.S.C. § 1252b(a)(1) (1994) (listing the information to be included in
15 an OTSC); see also Niz-Chavez, 141 S. Ct. at 1482 n.2 (“[E]ach case-
initiating document must contain the catalogue of information
Congress has said the . . . respondent is entitled to receive in that
document.”). To the contrary, the OTSC statute explicitly stated that
in a “deportation proceeding[]” like that to which Jiang was subject
when he first entered the United States, “written notice . . . of . . . the
time and place at which the proceedings will be held” “shall be given
. . . in the order to show cause or otherwise.” 8 U.S.C. § 1252b(a)(2)
(1994) (emphasis added). In other words, the OTSC statute explicitly
acknowledged the permissibility of giving an alien in deportation
proceedings notice of the time and place of the hearing by separate
document.
The Supreme Court had acknowledged as much when it noted
in Pereira that NTAs and OTSCs are “entirely different document[s],”
and that unlike NTAs, “orders to show cause did not necessarily
include time-and-place information.” 138 S. Ct. at 2117 n.9. And in
16 holding that Niz-Chavez and Pereira do not render OTSCs insufficient
to trigger the stop-time rule if they omit the date or place of the
hearing, today we join a number of other courts that have reached the
same conclusion. See Gonzalez-Rodriguez v. Wilkinson, 838 F. App’x 312,
314 (9th Cir. 2021) (memorandum opinion); Perez-Perez v. Wilkinson, 988
F.3d 371, 375 (7th Cir. 2021); Carrias-Mayorga v. Barr, 787 F. App’x 955,
956 (9th Cir. 2019) (memorandum opinion); Bilek v. U.S. Att’y Gen., 793
F. App’x 929, 933 n.1 (11th Cir. 2019) (per curiam).
IV.
We note that in denying Jiang’s motion to reopen, the BIA
erroneously concluded that “‘where a notice to appear does not
specify the time or place of an alien’s initial removal hearing, the
subsequent service of a notice of hearing containing that information
perfects the deficient notice to appear,’” thus “‘trigger[ing] the stop-
time rule’” and making him “[in]eligible for cancellation of removal.”
In re Jiang, No. A 073 200 066 (B.I.A. May 30, 2109) (quoting Mendoza-
17 Hernandez, 27 I. & N. Dec. at 529 (internal quotation marks omitted)).
The BIA’s reasoning is flawed. First, as a threshold matter, the BIA
failed to distinguish between the type of charging document issued to
Jiang in this case — a pre-IIRIRA OTSC — and the post-IIRIRA NTAs
which were at the center of Pereira and Mendoza-Hernandez.
Additionally, the Supreme Court has since expressly rejected the BIA’s
position as to the ability of a subsequent notice furnishing the time and
place of hearing to cure an otherwise defective NTA such that the stop-
time rule would be triggered, making clear, instead, that Section
1229(a)(1) does not permit this type of piecemeal “notice-by-
installment.” See Niz-Chavez, 141 S. Ct. at 1479-80.
Still, while the BIA’s reasoning was flawed, we agree with its
ultimate conclusion: that Jiang’s motion to reopen was untimely and
that, in any event, he is ineligible for cancellation-of-removal relief.
Thus, notwithstanding the errors in the BIA’s reasoning, we conclude
that remand would be futile and decline to prolong this litigation any
18 further. See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289
(2d Cir. 2007) (“This Court will decline a remand as futile if we can
confidently predict that the agency would reach the same decision
absent the errors that were made.” (internal quotation marks
omitted)).
In sum, we hold that unlike an NTA issued under the IIRIRA, a
pre-IIRIRA OTSC need not have included time-and-place information
to trigger the stop-time rule under 8 U.S.C. § 1229b(d)(1)(A), see supra,
Op. at 8.
We have considered all of Jiang’s remaining arguments and find
them to be without merit. Accordingly, Jiang’s petition for review of
the BIA’s May 30, 2019 decision is hereby DENIED. All pending
motions and applications are also DENIED, and all stays are
VACATED.