19-2658 Chen v. Barr BIA A076 506 357

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of December, two thousand twenty.

PRESENT: JON O. NEWMAN, REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

XING YING CHEN, Petitioner,

v. 19-2658 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Anthony C. Payne, Assistant Director; Judith R. O’Sullivan, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Xing Ying Chen, a native and citizen of the

People’s Republic of China, seeks review of an August 5, 2019,

decision of the BIA denying his second motion to reopen. In

re Xing Ying Chen, No. A076 506 357 (B.I.A. Aug. 5, 2019).

We assume the parties’ familiarity with the underlying facts

and procedural history.

We review the BIA’s denial of a motion to reopen for

abuse of discretion. See Jian Hui Shao v. Mukasey,

(2d Cir. 2008). Before the BIA, Chen moved to

reopen and terminate his removal proceedings, arguing that

the time limit for filing his motion should be excused and

that his notice to appear (“NTA”) was insufficient to commence

removal proceedings under the Supreme Court’s decision in

Pereira v. Sessions,

(2018), because it did

not contain a hearing date or time.

It is undisputed that Chen’s 2018 motion to reopen was

untimely and number barred because it was his second motion 2 filed more than 15 years after his removal order became final

in 2003. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i);

(c)(2). Chen argues that the BIA should have excused

the time limit given the intervening decision in Pereira.

Chen’s Pereira argument is without merit, and the BIA did not

err in declining either to excuse the time limitation based

on that decision or to exercise its authority to reopen sua

sponte. See

(c)(3) (listing exceptions to

the time limitation); Mahmood v. Holder,

(2d Cir. 2009) (an untimely motion may be considered under

the agency’s sua sponte authority, but we lack jurisdiction

to review such decision other than to remand if the agency

misperceived the law).

In Pereira, the Supreme Court held that the Immigration

and Nationality Act unambiguously requires an NTA to include

a hearing time and place to trigger the “stop-time rule,” 138

S. Ct. at 2113–20, which cuts off a noncitizen’s accrual of

physical presence or residence for the purposes of

cancellation of removal, see 8 U.S.C. § 1229b(a), (b),

(d)(1). Chen does not challenge his accrual of physical

presence, but instead argues that his NTA, which omitted the 3 hearing information, was insufficient to vest the immigration

court with jurisdiction over his removal proceedings. We

have rejected this argument. Pereira addresses a narrow

question regarding the stop-time rule and does not “void

jurisdiction in cases in which an NTA omits a hearing time or

place.” Banegas Gomez v. Barr,

(2d Cir.

2019). The regulation vesting jurisdiction does not require

an NTA to specify the time and date of the initial hearing,

“at least so long as a notice of hearing specifying this

information is later sent to the alien.”

.

Although Chen’s 2000 NTA did not specify the date and

time of his initial hearing, he unquestionably received

notice of his hearings at which he appeared. Therefore,

Chen’s argument is foreclosed by Banegas Gomez,

.

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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