16-3943 Rivadeneira Manosalvas v. Sessions BIA Straus, IJ A078 678 815 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 27th 4 day of July, two thousand eighteen. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 SUSAN L. CARNEY, 9 Circuit Judges, 10 EDWARD KORMAN, 11 District Judge. 12 _____________________________________ 13 14 MARIO BELFOR RIVADENEIRA 15 MANOSALVAS, AKA MISAEL GUTIERREZ 16 GARCIA, AKA MIGUEL GARCIA, 17 Petitioner, 18 19 v. 16-3943 20 21 JEFFERSON B. SESSIONS III, 22 UNITED STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Glenn L. Formica, Elyssa N. Williams, 27 Formica Williams, P.C., New Haven, CT. 28

 Judge Edward Korman, of the United States District Court for the Eastern District of New York, sitting by designation. 1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 2 Attorney General; Douglas E. Ginsburg, 3 Assistant Director; Jenny C. Lee, 4 Trial Attorney, Office of Immigration 5 Litigation, United States Department 6 of Justice, Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a Board

9 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

10 ADJUDGED, AND DECREED that the petition for review is GRANTED.

11 Petitioner Mario Belfor Rivadeneira Manosalvas

12 (“Rivadeneira”), a native and citizen of Ecuador, seeks review of

13 an October 27, 2016 decision of the BIA affirming a December 23,

14 2015 decision of an Immigration Judge ordering Rivadeneira’s

15 removal and denying his application for cancellation of removal.

16 In re Mario Belfor Rivadeneira Manosalvas, No. A 078 678 815

17 (B.I.A. Oct. 27, 2016), aff’g No. A 078 678 815 (Immig. Ct.

18 Hartford Dec. 23, 2015). We assume the parties’ familiarity with

19 the underlying facts and procedural history in this case.

20 Rivadeneira received a charging document entitled “Notice to

21 Appear” in 2000 and was ordered removed in absentia in 2001 under

22 an alias, but never departed the United States. In 2015, he was

23 served with another charging document, also entitled “Notice to

24 Appear,” and sought cancellation of removal. An alien like

25 Rivadeneira may establish eligibility for cancellation of removal

26 if he can demonstrate, among other requirements, that he “has been

27 physically present in the United States for a continuous period of

2 1 not less than 10 years immediately preceding the date of [his]

2 application.” 8 U.S.C. § 1229b(b)(1)(A). However, under the

3 stop-time rule, “any period of continuous residence or continuous

4 physical presence in the United States shall be deemed to end . .

5 . when the alien is served a notice to appear under” 8 U.S.C.

6 § 1229(a). Id. § 1229b(d)(1). The agency denied cancellation,

7 reasoning that the service of Rivadeneira’s 2000 charging document

8 prevented Rivadeneira from accruing the required ten years of

9 continuous physical presence in the United States.

10 We retain jurisdiction to consider the question of law at

11 issue in this case: whether the 2000 charging document stopped

12 Rivadeneira’s accrual of physical presence for cancellation of

13 removal. See id. §§ 1252(a)(2)(B), (D); Barco-Sandoval v.

14 Gonzales,

(2d Cir. 2008). For the reasons

15 discussed below, we vacate and remand due to an intervening Supreme

16 Court decision that calls into question whether the stop-time rule

17 was triggered in 2000 in Rivadeneira’s case. See Pereira v.

18 Sessions,

(2018).

19 As noted above, the BIA’s conclusion that Rivadeneira was

20 ineligible for cancellation of removal rested on a determination

21 that Rivadeneira’s 2000 charging document was sufficient to

22 trigger the stop-time rule. See, e.g., J.A. at 5 (“[T]he Notice

23 to Appear terminated [Rivadeneira’s] continuous physical presence

24 in 2000.”). The Government has produced a copy of Rivadeneira’s

3 1 2000 charging document in its supplemental brief on appeal.1 The

2 charging document does not list a hearing date.2 In Pereira, the

3 Supreme Court held that service of a charging document will not

4 trigger § 1229b(d)(1)’s stop-time rule unless the charging

5 document includes a hearing date. Pereira, 138 S. Ct. at 2113–

6 14. Pereira expressly abrogated this Court’s precedent, which had

7 deferred to the BIA’s position that a charging document stops the

8 time even if it does not list a hearing date. See id. & n.4;

9 Guaman-Yuqui v. Lynch,

(2d Cir. 2015) (per

10 curiam); Matter of Camarillo,

(B.I.A.

11 2011). Pereira also therefore implicitly overrode the BIA’s

12 determination that Rivadeneira’s 2000 charging document alone

13 triggered the stop-time rule. The BIA’s decision must therefore

14 be vacated.3

1We note that this document was not included in Rivadeneira’s Certified Administrative Record. We will therefore assume arguendo, and without making a factual determination, that this document accurately represents Rivadeneira’s 2000 charging document.

2 Incidentally, we note that Rivadeneira’s 2015 charging document does not appear to specify a hearing date either. See J.A. 360. 3 Although Rivadeneira did not challenge the adequacy of his 2000

charging document before the agency, his failure to exhaust is excused because our precedent at the time foreclosed his argument. See, e.g., Gucci Am., Inc. v. Weixing Li,

(2d Cir. 2014) (“[A] party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made.” (quoting Hawknet, Ltd. v. Overseas Shipping Agencies,

(2d Cir. 2009))).

4 1 The Government contends that any defect in Rivadeneira’s 2000

2 charging document was cured by service of a subsequent hearing

3 notice. See, e.g., Guamanrrigra v. Holder,

, 410–11

4 (2d Cir. 2012) (per curiam). This issue was not raised before the

5 BIA, and we decline to address it in the first instance on appeal.

6 Accordingly, we remand for the BIA to consider, in light of

7 Pereira, whether and when the stop-time rule was triggered in

8 Rivadeneira’s proceedings.

9 For the foregoing reasons, the petition for review is GRANTED,

10 the BIA’s decision is VACATED, and the case is REMANDED to the BIA

11 for further proceedings consistent with this order. Because we

12 have completed our review, Rivadeneira’s stay motion is DENIED as

13 moot.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe 16 Clerk of Court

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