Roberto Maldonado Galvan v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2018
• Docket: 15-73625
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 18 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO MALDONADO No. 15-73625 MALDONADO GALVAN, AKA Sergio Galvan Maldonado, Agency No. A072-294-892

Petitioner, MEMORANDUM* v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 11, 2018** Seattle, Washington

Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PAYNE,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert E. Payne, United States District Judge for the Eastern District of Virginia, sitting by designation. Maldonado Galvan (“Maldonado”) petitions for review the decision of the

Board of Immigration Appeals (“BIA”) affirming immigration judge’s denial of

his application for cancellation of removal. The BIA denied Maldonado’s

application for cancellation of removal, because he failed to establish the requisite

seven years of continuous residence. We have jurisdiction under 8 U.S.C. § 1252,

in light of the Supreme Court’s recent decision in Pereira v. Sessions, 138 S. Ct.

2105 (2018), and we grant the petition and remand for the BIA for further

proceedings.

1. The Supreme Court’s decision in Pereira held that a notice to appear

(“NTA”) that failed to designate the specific time, place, or date of an alien’s

removal proceedings does not trigger the stop-time rule ending the alien’s accrual

of continuous presence. Id. at 2114. In this case, the NTA failed to include a

place, date, and time for a hearing. Thus, it suffers from the same flaws as the

NTA in Pereira. As a result, we cannot determine whether the stop-time rule

ending the period of continuous presence in the United States was triggered.

Therefore, we grant the petition for review and remand to the agency for further

proceedings to determine whether, under Pereira, Maldonado has met his seven

years of continuous residency, making him eligible for cancellation of removal.

2 2. Nevertheless, Maldonado challenges the constitutionality of the issuance of

the NTA on appeal, we address that question. (1) Maldonado failed to raise this

issue to the immigration judge, thus the BIA determined that the issue was waived.

See Matter of Jimenez-Santillano, 21 I. & N. Dec. 567, 570 n.2 (BIA 1996).

However, the BIA also concluded that there was no sufficient basis to conclude

that the NTA was invalid. Thus, the issue was exhausted. See Vizcarra-Ayala v.

Mukasey, 514 F.3d 870, 874 (9th Cir. 2008). (2) We find no merit to Maldonado’s

claim that the government was precluded from initiating removal proceedings. The

fact that Maldonado disclosed that he was arrested in 1994, prior to his grant of

legal permanent residency status, does not estop the government from initiating

removal proceedings based on a subsequent conviction for that charge, which

occurred three years after he was granted such status. See Perez-Mejia v. Holder,

663 F.3d 403, 417-18 (9th Cir. 2011); see also 8 U.S.C. § 1227(a)(2)(B)(i)

(requiring a conviction for a controlled substance before an alien is deportable).

The parties shall bear their own costs on appeal.

PETITION FOR REVIEW GRANTED IN PART; DENIED IN PART;

AND REMANDED.