IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-60464

ERIKA JISELA YANEZ-PENA, also known as Erika Jisela Pena-Yanez, 

 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of Order of the 

Board of Immigration Appeals

Before WIENER, GRAVES, and WILLETT, Circuit Judges.

WIENER, Circuit Judge:

Petitioner Erika Jisela Yanez-Pena seeks review of an order of the Board 

of Immigration Appeals (“BIA”) denying her motion to reopen her removal 

proceedings. Yanez-Pena maintains that, in light of the Supreme Court’s

holding in Pereira v. Sessions,1 a notice to appear (“NTA”) is defective if it does 

not include the time and place of the initial hearing. She argues that the NTA 

she received was defective because it omitted the time and place of her initial 

removal hearing. Yanez-Pena further asserts that, because the NTA she 

received was defective, she is eligible for cancellation of removal or,

1 138 S. Ct. 2105 (2018).

United States Court of Appeals

Fifth Circuit

FILED

February 28, 2020

Lyle W. Cayce

Clerk

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2

alternatively, that the order removing her in absentia is invalid. We hold that

(1) the information statutorily required to be contained in an NTA may be 

supplied in more than one document, and (2) an NTA is perfected, and the stoptime rule is triggered, when the alien receives all required information, 

whether in one document or more.

I.

After being served with a deficient NTA, Yanez-Pena was subsequently 

mailed a “notice of hearing” that set forth the time and place of her initial 

removal hearing. This document (1) perfected her initial NTA by providing

proper notice of her removal hearing and (2) terminated her “continued 

presence” in the United States pursuant to the stop-time rule, precluding

Yanez-Pena’s eligibility for cancellation of removal.2 The BIA therefore did not 

abuse its discretion by failing to reopen Yanez-Pena’s removal proceedings to 

allow her to seek cancellation of removal or to rescind the in absentia order of 

removal. 

II.

Yanez-Pena is a native and citizen of Honduras who entered the United 

States on or about August 29, 2007 without inspection and admission by an 

immigration officer. On August 31, 2007, the Government initiated removal 

proceedings against Yanez-Pena by serving her personally with an NTA. The 

NTA ordered Yanez-Pena to appear at a removal hearing before an 

Immigration Judge at the address provided in the NTA at a time and date “to 

be set.” The NTA reflects that, at the time of service, Yanez-Pena was orally 

advised in Spanish of the consequences of failing to appear at her hearing. 

2 The stop-time rule serves to end an alien’s “continued presence” in the United States, 

see 8 U.S.C. § 1229b(d)(1)(A), which is required to seek cancellation of removal, see 8 U.S.C. 

§ 1229b(b)(1)(A).This rule is discussed in depth below.

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On September 10, 2007, the immigration court mailed a notice of hearing 

to the address provided by Yanez-Pena, specifying that her first hearing would 

take place at 9:30 a.m. on September 18, 2007. The immigration court mailed

two successive notices, both of which rescheduled the time and date of the 

hearing. The final hearing notice, mailed November 19, 2007, informed YanezPena that her initial removal hearing would take place at 9:00 a.m. on January 

28, 2008. Yanez-Pena failed to appear at that removal hearing, so the 

Immigration Judge ordered her removed in absentia on that date.

In February 2017, Yanez-Pena filed a motion to reopen her removal 

proceedings on the grounds that she had not received notice of her January 28, 

2008 hearing. The Immigration Judge denied the motion to reopen, concluding 

that Yanez-Pena failed to rebut the presumption of delivery by mail because it 

was “highly unlikely that none of the three pieces of correspondence was 

properly delivered by the United States Postal Service.”

III.

Yanez-Pena timely appealed the Immigration Judge’s denial of the 

motion to reopen to the BIA, but the BIA dismissed her appeal. The BIA also

denied Yanez-Pena’s motion to reconsider the dismissal of her appeal. YanezPena timely appealed the decisions of the BIA to this court,3 and we denied her

original petition for review.4 We concluded that (1) substantial evidence 

supported the BIA’s conclusion that Yanez-Pena received the notice of hearing,

and (2) the BIA did not abuse its discretion in denying both her motion to 

reopen and her motion to reconsider.5

3 See Yanez-Pena v. Sessions, 741 F. App’x 272 (5th Cir. 2018). 

4 See id. at 274. 5 Id.

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IV.

While Yanez-Pena’s case seeking to reopen her removal proceedings on 

the grounds that she did not receive the notice of hearing was pending before 

this court, the United States Supreme Court decided Pereira v. Sessions.6 In 

Pereira, the Court held that “[a] putative notice to appear that fails to 

designate the specific time or place of the noncitizen’s removal proceedings is 

not a ‘notice to appear under section 1229(a),’ and so does not trigger the stoptime rule.”7 Yanez Pena filed a second motion to reopen, asking the BIA to

reopen her removal proceeding in light of Pereira, (1) to allow her to seek 

cancellation of her removal because the deficient NTA she received did not 

trigger the “stop-time” rule and she is otherwise eligible for cancellation and 

(2) to rescind the in absentia order of removal because she did not receive

proper notice of the removal hearing.8

The BIA denied the second motion to reopen in June 2019, concluding 

that (1) Yanez-Pena failed to present prima facie evidence of her eligibility for 

cancellation because her continuous presence ended when she received the 

notice of hearing that specified the time and place of the hearing, thereby

perfecting the originally deficient NTA, and (2) rescission of the absentia order 

of removal is not required because the subsequent notice of hearing remedied 

the deficient NTA and provided Yanez-Pena with proper notice of the hearing.

Yanez-Pena timely appealed the decision of the BIA on the second motion to 

6 138 S. Ct. 2105.

7 Id. at 2113-14. 8 Before the BIA, Yanez-Pena also contended that (1) the defective NTA deprived the 

immigration judge of jurisdiction, (2) the defective NTA violated her due process rights, and

(3) the 90-day period to file a motion to reopen should be equitably tolled. Yanez-Pena does 

not raise these claims on appeal, so they are abandoned and waived. See, e.g., Thuri v. 

Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004) (holding that a claim not raised in a petition for 

review is waived). 

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reopen to this court. We now consider the merits of her second motion to 

reopen.

V.

We review the BIA’s denial of a motion to reopen “under a highly 

deferential abuse-of-discretion standard.”9 “The BIA’s ruling will stand, even 

if this court concludes it is erroneous, ‘so long as it is not capricious, racially 

invidious, utterly without foundation in the evidence, or otherwise so irrational 

that it is arbitrary rather than the result of any perceptible rational 

approach.’”10 We review the BIA’s conclusions of law de novo but we give 

deference “to the BIA’s interpretation of immigration regulations if that 

interpretation is reasonable.”11

VI.

Yanez-Pena first takes issue with the BIA’s conclusion that she is unable 

to demonstrate her prima facie eligibility for cancellation of removal because 

her continuous presence ended when she was mailed a notice of hearing that 

contained the time and place of her initial removal hearing. The Attorney 

General of the United States has discretion to “cancel removal” of “an alien 

who is inadmissible or deportable from the United States” and to “adjust [that 

person] to the status of an alien lawfully admitted for permanent residence” if

the person meets specified criteria.12 Relevant here, cancellation of removal 

and adjustment of status may occur if the alien “has been physically present 

in the United States for a continuous period of not less than 10 years.”13

9 Singh v. Lynch, 840 F.3d 220, 222 (5th Cir. 2016); Barrios-Cantarero v. Holder, 772 

F.3d 1019, 1021 (5th Cir. 2014). 10 Singh, 840 F.3d at 222 (quoting Zhao v. Gonzales, 404 F.3d 295, 303-04 (5th Cir. 

2005)).

11 Barrios-Cantarero, 772 F.3d at 1021. 

12 8 U.S.C. § 1229b(b). 

13 Id. § 1229b(b)(1)(A). The other requirements for cancellation of removal are that the 

alien: “[1] has been a person of good moral character during such period, [2] has not been 

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The so-called “stop-time” rule operates to end the alien’s requisite period 

of physical presence here. It is triggered “when the alien is served a notice to 

appear under section 1229(a).”14 Section 1229(a) provides, “[i]n removal 

proceedings . . . written notice (in this section referred to as a ‘notice to appear’) 

shall be given . . . to the alien . . . specifying [among other required items,] 

(G)(i) [t]he time and place at which the proceedings will be held.”15 Section

1229(a) also provides, “in the case of any change or postponement in the time 

and place of such proceedings, . . . a written notice shall be given . . . to the 

alien . . . specifying—(i) the new time or place of the proceedings.”16

In Pereira, the Supreme Court held that an NTA that does not specify 

the time and place at which the proceedings will be held does not trigger the 

stop-time rule.17 In reaching that conclusion, the Court did not resort to 

Chevron deference because the statutory text alone was sufficient to resolve 

the case.18 The alien in Pereira received an NTA that ordered him to appear 

before an Immigration Judge in Boston “on a date to be set at a time to be set” 

but otherwise included all information required under §1229(a)(1).19 The 

immigration court thereafter attempted to mail the alien a notice of hearing

that included the date and time of the initial hearing, but the notice was 

returned as undeliverable because it was not sent to the address that the alien 

had provided to the Department of Homeland Security.20 Because the alien did 

convicted of an offense . . . and [3] establishes that removal would result in exceptional and 

extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the 

United States or an alien lawfully admitted for permanent residence.” Id. § 1229b(d)(1)(B)-

(D).

14 Id. § 1229b(d)(1)(A).

15 Id. § 1229(a)(1).

16 Id. § 1229(a)(2).

17 138 S. Ct. at 2113-14. 

18 Id.

19 Id. at 2112. 20 Id.

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not receive the subsequent notice, which did include the time and place of the 

hearing, the Pereira Court did not reach the precise question at issue in this 

case: whether the subsequent mailing of a hearing notice that includes the time 

and place of the initial hearing cures an originally defective NTA and triggers 

the stop-time rule.21

After Pereira, the BIA squarely addressed the issue in this case in Matter 

of Mendoza-Hernandez,22 determining “that in cases 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, triggers the ‘stop-time’ rule, and ends the alien’s

period of continuous residence or physical presence in the United States.”23 In 

that case, the BIA concluded that the stop-time rule was triggered, and the 

aliens’ period of physical presence ended, on the date of mailing of the 

subsequent notice of hearing that included the time and place of the hearing.24

The BIA explained that, although § 1229(a) refers to “a notice to appear,” the 

statute does not necessarily require the “written notice” to be provided in a 

single document.25 “Rather, it may be provided in one or more documents—in 

a single or multiple mailings . . . so long as the essential information is 

conveyed in writing and fairly informs the alien of the time and place of the 

proceedings.”26

Post-Pereira, we addressed whether the immigration court had

jurisdiction over removal proceedings when the original NTA did not include 

21 See Pierre-Paul v. Barr, 930 F.3d 684, 690-91 (5th Cir.), petition for cert. filed (U.S. 

Dec. 16, 2019) (No. 19-779) (noting that Pereira “did not directly address whether a defective 

notice to appear may be cured by a subsequent notice of hearing”).

22 In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (BIA 2019) (en banc). 23 Id.

24 Id.

25 Id. at 531 (emphasis added). 26 Id.

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the time and place of the initial hearing but a subsequent notice of hearing did 

include that information.27 In Pierre-Paul v. Barr, we concluded that, to the 

extent the original NTA was defective, “the immigration court cured the defect 

by subsequently sending a notice of hearing that included the time and date of 

the hearing.”28 We reasoned that the “written notice,” referred to in § 1229(a) 

as “a notice to appear,”29 does not require that all the necessary items be 

contained in a single document, particularly since “words importing the 

singular include and apply to several persons, parties, or things.”30 We held 

that “a defective notice to appear may be cured with a subsequent notice of 

hearing,” reasoning that this “two-step process comports with relevant 

statutory language.”31

Other circuit courts to address the application of the stop-time rule when 

the alien is served with a defective NTA but is subsequently mailed a notice of 

hearing that includes the time and place of the hearing have reached 

conflicting results.32 The Sixth Circuit in Garcia-Romo v. Barr concluded that 

27 Pierre-Paul, 930 F.3d at 688; see also United States v. Pedroza-Rocha, 933 F.3d 490, 

497 (5th Cir. 2019) (relying on Pierre-Paul and holding that “any alleged defect [in the NTA 

that did not include the time and place of the hearing] was cured by the later service of a 

notice of hearing”).

28 Pierre-Paul, 930 F.3d at 689. In both Pereira and Pierre-Paul, the original NTA 

failed to specify the “date and time” of the initial hearing. See Pereira, 138 S. Ct. at 2112 

(“Critical here, the notice did not specify the date and time of Pereira’s removal hearing.”); 

Pierre-Paul, 930 F.3d at 691 (“Pereira was served with a notice to appear that omitted the 

date and time of his initial hearing.”). Section 1229(a)(1) requires notice of the “time and 

place.” In this case, the NTA Yanez-Pena received also failed to specify the “date and time” 

of her initial hearing but included the “place” of the hearing. We use “time and place” where 

practicable, as this is what the statute requires.

29 8 U.S.C. § 1229(a)(1) (emphasis added).

30 Pierre-Paul, 930 F.3d at 691 (citing 1 U.S.C. § 1). 

31 Id. at 690-91.

32 Compare Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019), reh’g en banc granted 2020 

WL 522150 (9th Cir. Jan. 23, 2019) (holding that this two-step process does not trigger the 

stop-time rule) and Guadalupe v. Attorney Gen. U.S., No. 19-2239, 2020 WL 913242 (3d Cir. 

Feb. 26, 2020) (rejecting the two-step notification process with respect to the stop-time rule)

with Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019) (holding that, after the receipt of a 

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“written communications to a noncitizen in multiple components or 

installments may collectively provide all the information necessary to 

constitute ‘a notice to appear’ under 8 U.S.C. § 1229b(d).”33 That court held 

that “the government triggers the stop-time rule when it sends a noncitizen all 

the required categories of information under § 1229(a)(1)(A)-(G) through one 

or multiple written communications.”34 In contrast, the Ninth Circuit, in 

prohibiting the two-step process in Lopez v. Barr, concluded that “any 

document containing less than the full set of requirements listed in Section 

1229(a)(1) is not a Notice to Appear within the meaning of the statute” and 

does not trigger the stop-time rule.35 That court reasoned that the use of the 

singular “a notice to appear” “indicates that [only the] service of a sing[le] 

document—not multiple [documents]—triggers the stop-time rule.”36 Recently, 

the Third Circuit rejected the two-step notification process, reasoning that 

Pereira establishes a “bright line rule” and that, for purposes of the stop-time 

rule, “a defective NTA may not be cured by a subsequent notice of hearing 

containing the omitted information.”37

We agree with the BIA’s determination that Yanez-Pena cannot

demonstrate her prima facie eligibility for cancellation. She cannot do so 

because the stop-time rule is triggered when an alien receives notice of all the 

information required under § 1229(a)(1)(A)-(G), whether that takes place in 

one or more communications. This conclusion extends our reasoning in PierrePaul that “a notice to appear” and “[t]he noun ‘written notice’ as used in 

deficient NTA that does not include the time and place of the original hearing, receipt of a 

subsequent notice of hearing containing that information triggers the stop-time rule). 

33 Garcia-Romo, 940 F.3d at 201.

34 Id.

35 Lopez, 925 F.3d at 400. 

36 Id. at 402. 

37 Guadalupe, 2020 WL 913242, at *2.

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1229(a) alone do[] not specify that all the required items must be contained in 

a single document.”38 It also aligns with the Sixth Circuit’s reasoning in 

Garcia-Romo that multiple documents may collectively provide the notice 

required under § 1229(a). The statute unambiguously leads us to this result. 

Our conclusion also aligns with the BIA’s interpretation of the statute as 

set forth in its en banc opinion in Mendoza-Hernandez.39 Even if we were to 

conclude that “written notice” and “a notice to appear” are ambiguous, we 

would defer to the BIA’s reasonable interpretation of the statute that “where a 

notice to appear does not specify the time and 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, satisfies the notice 

requirements . . . , and triggers the ‘stop-time’ rule.”40

We owe Chevron deference to the BIA’s interpretation of immigration 

law.41 “Under Chevron, the statute’s plain meaning controls, whatever the 

[BIA] might have to say. But if the law does not speak clearly to the question 

at issue, a court must defer to the [BIA]’s reasonable interpretation, rather 

than substitute its own reading.”42 Deferring to the BIA’s interpretation, we 

would reach the same result, because the subsequent notice of hearing 

delivered to Yanez-Pena, which included the time and place of the initial 

hearing, cured the defects in the original NTA and triggered the stop-time rule.

Yanez-Pena’s continuous presence ended not on August 31, 2007 when 

she was served with the defective NTA, but rather on September 10, 2007, 

when she was mailed the subsequent notice of hearing setting forth the time 

38 Pierre-Paul, 930 F.3d at 691.

39 See Mendoza-Hernandez, 27 I. & N. Dec. 520. 

40 Id. at 535.

41 Scialabba v. Cuellar de Osorio, 573 U.S. 41, 57 (2014); Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). 42 Scialabba, 573 U.S. at 57.

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and place of her initial removal hearing and received all of the information 

required under § 1229(a)(1)(A)-(G).43 Yanez-Pena entered the United States in 

August 2007, so she did not accrue the requisite ten years of presence to be 

eligible for cancellation of removal and is unable to demonstrate her prima 

facie eligibility for cancellation.44 The BIA did not abuse its discretion in

denying Yanez-Pena’s motion to reopen her removal proceedings to allow her

to seek cancellation of her removal. 

VII.

Yanez-Pena also takes issue with the BIA’s decision declining to reopen

her removal proceedings and rescind the in absentia order of removal. She 

maintains that, in light of Pereira, the NTA she received was defective and she 

did not receive proper notice of the hearing. An alien may be ordered removed 

in absentia if (1) she has been properly served with the “written notice required 

under paragraph (1) or (2) of section 1229(a),” and (2) the government

“establishes by clear, unequivocal, and convincing evidence that the written 

notice was so provided and that the alien is removable.”45

When we reviewed Yanez-Pena’s first motion to reopen, we determined 

that “[s]ubstantial evidence supports the BIA’s determination that the hearing 

notice was served on Yanez-Pena via regular mail to the admittedly correct 

address that she provided to the immigration court.”46 As a result, the only 

43 The BIA used November 19, 2007 as the date Yanez Pena’s continuous presence 

ended. This date corresponds with the final notice of hearing she received, rescheduling the 

hearing to January 28, 2008, the date on which the immigration judge ordered her removed 

in absentia. Because of our holding that the stop-time rule is triggered when the alien 

receives all of the information required under § 1229(a)(1)(A)-(G), regardless of whether that 

information is conveyed through one or multiple communications, the stop-time rule was 

triggered on September 10, 2007, when Yanez-Pena received the last of information required 

under § 1229(a)(1)(A)-(G), the time and place of her initial hearing. 

44 See 8 U.S.C. § 1229b(b).

45 Id. § 1229a(b)(5)(A). 46 Yanez-Pena, 741 F. App’x at 273.

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question that remains is whether Yanez-Pena received the “written notice 

required under paragraph (1) or (2) of section 1229(a).”47 Because we hold that 

the information in the written notice required under paragraph (1) of section 

1229(a), otherwise referred to as an NTA, may be contained in one or more 

documents, and because Yanez-Pena received all such information, the BIA did 

not abuse its discretion in declining to reopen and rescind her in absentia order 

of removal. 

VIII.

The petition for review is DENIED.

47 8 U.S.C. § 1229a(b)(5)(A).

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