19-3811 Wong v. Garland BIA A029 835 206 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 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 1st day of October, two thousand twenty-one. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 DENNY CHIN, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 MING WONG, AKA HEE SUK CHU YANG, 14 AKA MING DI WANG, AKA KEE YOAN 15 YANG, 16 Petitioner, 17 18 v. 19-3811 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Stuart Altman, New York, NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Paul Forino, 29 Senior Litigation Counsel; Robert 1 D. Tennyson, Jr., Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

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

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Ming Wong, a native and citizen of China,

10 seeks review of a November 8, 2019, decision of the BIA

11 denying his motion to reopen. In re Ming Wong, No. A 029 835

12 206 (B.I.A. Nov. 8, 2019). We assume the parties’ familiarity

13 with the underlying facts and procedural history in this case.

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

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

(2d Cir. 2008). In his third motion to reopen

17 with the BIA, Wong argued that the agency did not have

18 jurisdiction to commence removal proceedings and should

19 permit him to apply for cancellation of removal because his

20 notice to appear (“NTA”), which did not contain a hearing

21 date or time, was deficient under Pereira v. Sessions, 138 S.

22 Ct. 2105 (2018), and thus did not vest jurisdiction with the

23 immigration court or stop his accrual of the physical presence

2 1 required for cancellation.

2 It is undisputed that Wong’s 2018 motion to reopen was

3 untimely and number barred because it was his third motion

4 and was filed more than 23 years after his 1994 exclusion

5 order. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

6 § 1003.2(c)(2). Wong argues that the BIA should have excused

7 the time limit and reopened sua sponte given the intervening

8 decision in Pereira. In Pereira, the Supreme Court held that

9 the Immigration and Nationality Act unambiguously requires an

10 NTA to include a hearing time and place to trigger the “stop-

11 time rule,” 138 S. Ct. at 2113–20, which cuts off a

12 noncitizen’s accrual of physical presence or residence for

13 the purposes of qualifying for cancellation of removal, see

14 8 U.S.C. § 1229b(a), (b), (d)(1). An NTA that does not

15 contain a hearing date and time as required by Pereira is not

16 cured for purposes of the stop-time rule by a subsequent

17 hearing notice that provides the missing information. See

18 Niz-Chavez v. Garland,

(2021). Nonetheless,

19 the BIA did not err in declining either to excuse the time

20 and number limitations on Wong’s motion based on Pereira or

21 to exercise its authority to reopen sua sponte because

3 1 Pereira, and the stop-time rule in general, is inapplicable

2 in Wong’s case.

3 Wong was placed in exclusion proceedings in 1994 by

4 Notice to Applicant for Admission Deferred for Hearing Before

5 an Immigration Judge (Form I-122). See

6 (“An exclusion proceeding is commenced by the filing of Form

7 I–122 with the Immigration Court.”). Pereira dealt only with

8 the requirements for an NTA in removal proceedings under 8

, a provision that was added to the INA by the

10 Illegal Immigration Reform and Immigrant Responsibility Act

11 of 1996 (“IIRIRA”). See Pereira, 138 S. Ct. at 2113–15; see

12 also

(a)(1)(G)(i) (1996) (requiring that a

13 notice to appear specify “[t]he time and place at which the

14 proceedings will be held”). As the Supreme Court in Pereira

15 acknowledged, pre-IIRIRA charging documents are materially

16 different from NTAs and have different requirements. See

17 Pereira, 138 S. Ct. at 2117 n.9 (recognizing that orders to

18 show cause (which commence deportation proceedings) were not

19 required to “include time-and-place information”); see also

20 8 U.S.C. § 1252b(a)(2)(A) (repealed 1996) (providing that

21 written notice of the hearing time and place be given “in the

4 1 order to show cause or otherwise” (emphasis added)). Further,

2 given that Wong was in exclusion proceedings, he is not

3 eligible for cancellation of removal. See Patel v. McElroy,

4

, 60–61 (2d Cir. 1998) (holding noncitizen in

5 exclusion proceedings ineligible for “suspension of

6 deportation,” which was the predecessor to cancellation of

7 removal). We lack jurisdiction to review the BIA’s “entirely

8 discretionary” decision not to exercise its authority to

9 reopen sua sponte. Ali v. Gonzales,

(2d

10 Cir. 2006).

11 For the foregoing reasons, the petition for review is

12 DENIED. All pending motions and applications are DENIED and

13 stays VACATED.

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

5