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

(a)(1) that fail to provide time-and-place information for removal proceedings in a single document do not satisfy the statutory requirements in

(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,

(2021); Pereira v. Sessions,

(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

(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,

-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,

(2021); Pereira v. Sessions,

(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,

(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.,

(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

(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

(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,

; 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

note), Congress also

retroactively applied the IIRIRA’s stop-time rule upon service of

8 OTSCs issued before its enactment, IIRIRA § 309(c)(5),

-

627 (1996), amended by the Nicaraguan Adjustment and Central

American Relief Act of 1997 (“NACARA”),

Title

II,

, 2193-2201 (Nov. 19, 1997), further amended by

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,

. 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,

. 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,”

(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).”

.

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

(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,

(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,

(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.,

(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,

(quoting

(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

(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.”

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,

,

314 (9th Cir. 2021) (memorandum opinion); Perez-Perez v. Wilkinson,

(7th Cir. 2021); Carrias-Mayorga v. Barr,

,

956 (9th Cir. 2019) (memorandum opinion); Bilek v. U.S. Att’y Gen.,

, 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,

(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.,

(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)).

V.

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.

19