19

- 2180 Chen v. Garland BIA A 07 2 474 512



### 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**  **ELECTR ONIC 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**  1 **for the Second Circuit, held at the Thurgood Mar**  **shall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 6**  **t h**  **d a**  **y of M**  **a y**  **, two thousand twenty** 
**- one** 
**.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 **DENNY CHIN,** 8 **MICHAEL H. PARK,** 9 **Circuit Judges.** 10

**_____________________________________** 11 12 **YI GUO CHEN,**  13 **Petitioner ,**  14 15
**v. 19** 

**- 2180**  16 **NAC** 17 **M E**  **R R**  **I C**  **K B** 

**. G**  **A**

**R L**  **A N**  **D ,**  **UNITED** 18 **STATES ATTORNEY GENERAL**  **,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Jean Wang , Esq., Flushing , N Y

. 23 24 **FOR RESPONDENT:** Brian M. Boynton, Acting 25 Assistant Attorney General ; 26 Margaret Kuehne Taylor , Senior 27 Litigation Counsel ; Anthony O. 28 Pottinger , Trial Attorney , Office 29 of Immigration Litigation , United 30 States Department of Justice, 31 Washington, D C. 322 UPON DUE CONSIDERATION of this petition for review of a 1
Board of Immigration Appeals (“BIA”) decision, it is hereby 2
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 3

is DENIED

. 4

Petitioner Yi Gu o Chen , a native and citizen of the 5
People’s Republic of China , seek s review of a July 11 , 201 9 6
decision of the BIA denying his motion to reopen . In re Yi 7

Guo Chen , No. A 0 72 474 512 (B.I.A. July 11 , 2019 ). We assume 8
the parties’ familiarity with the underlying facts and 9
procedural history. 10
We review the BIA’s denial of a motion to reopen for 11

abuse of discretion. See Jian Hui Shao v. Mukasey , 546 F.3d 12
138, 16 8

- 6 9 (2d Cir. 2008). In his second motion to reopen 13
with the BIA, Chen argue d that the agency did not have 14
jurisdiction to commence removal proceedings and should have 15
permit ted him to apply for cancellation of removal

. He 16
argued that his notice to appear (“NTA”), which did not 17
contain a hearing date or time, was deficient under P ereira 18

v. Sessions , 138 S. Ct. 2105 (2018), and thus did not vest 19
jurisdiction with the immigration court or stop his accrual 20

of the physical presence required for cancellation

. 213 It is undisputed that Chen’s 2018 motion to reopen was 1

number barred because it was his second motion and untimely 2

because it was filed more than 1 5 years after his 2003 3

exclusion order

. See 8 U.S.C. § 1229a(c)(7) (A), (C)(i); 4

8 C.F.R. § 1003.2(c)(2). Chen argues that the BIA should 5

have excused the time limit and reopened sua sponte given the 6
intervening decision in Pereira

. 7

In Pereira , the Supreme Court held that the Immigration 8
and Nationality Act unambiguously requires an NTA to include 9
a hearing time and place to trigger the “stop

- time rule,” 138 10

S. Ct. at 2113

– 20, which cuts off a noncitizen’s accrual of 11
physical presence or residence for the purposes of qualifying 12
for cancellation of removal, see 8 U.S.C. § 1229b(a), (b), 13

(d)(1). T he BIA did not err in declining either to excuse 14

the time limitation ba sed on Pereira or exercise its authority 15

to reopen sua sponte because Pereira is inapplicable in Chen’s 16

case. Nor does the Supreme Court's recent decision in Niz

17

Chavez v. Garland , No. 19

- 863, 2021 WL 1676619 (Apr

. 29, 18
2021), which held that the required information must be set 19
forth in one NTA, require a different result. A lthough there 20
is an NTA in the record that does not include a hearing time 214 or place, that NTA was never filed or used to commence removal 1

proce edings. See Arenas

- Yepes v. Gonzales , 421 F.3d 111, 116 2
(2d Cir. 2005) (providing that immigration proceedings 3
commence when a charging document is filed with the 4
immigration court and that “it has never been the case . . . 5

that the mere issuance or servi ce on an alien of a charging 6
document ‘commenced’ immigration proceedings against the 7
alien”). Rather, Chen was placed in exclusion proceedings 8
by Notice to Applicant for Admission Deferred for Hearing 9
Before an Immigration Judge (Form I

- 122), which included a 10
hearing date, time, and place, and thus was sufficient to 11
commence those proceedings. See 8 C.F.R. § 1240.30 (“ An 12
exclusion proceeding is commenced by the filin g of Form I

– 13
122 with the Immigration Court .”) . Further, given that Chen 14
was in exclusion proceedings, he is not eligible for 15
cancellation of removal or its predecessor suspension of 16
deportation. See Patel v. McElroy , 143 F.3d 56, 60

– 61 (2d 17

Cir. 1998) (“[ S]uspension of deportation . . . is available 18
to aliens in deportation but not in exclusion proceedings.”). 19
For the foregoing reasons, the petition for review is 20

DENIED

. All pending motions and applications are DENIED and 215 stays VACATED. 1

FOR THE COURT: 2 Catherine O ’ Hagan Wolfe, 3 Clerk of Court 4