19-2180

Chen v. Garland

BIA

A072 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 

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 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 6th 4 day of May, two thousand twenty-one.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 DENNY CHIN,

9 MICHAEL H. PARK,

10 Circuit Judges.

11 _____________________________________

12

13 YI GUO CHEN,

14 Petitioner,

15

16 v. 19-2180

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Jean Wang, Esq., Flushing, NY.

24

25 FOR RESPONDENT: Brian M. Boynton, Acting 

26 Assistant Attorney General;

27 Margaret Kuehne Taylor, Senior 

28 Litigation Counsel; Anthony O. 

29 Pottinger, Trial Attorney, Office 

30 of Immigration Litigation, United 

31 States Department of Justice, 

32 Washington, DC.
2

1 UPON DUE CONSIDERATION of this petition for review of a 

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

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

4 is DENIED.

5 Petitioner Yi Guo Chen, a native and citizen of the 

6 People’s Republic of China, seeks review of a July 11, 2019

7 decision of the BIA denying his motion to reopen. In re Yi 

8 Guo Chen, No. A072 474 512 (B.I.A. July 11, 2019). We assume 

9 the parties’ familiarity with the underlying facts and 

10 procedural history.

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

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

13 138, 168-69 (2d Cir. 2008). In his second motion to reopen 

14 with the BIA, Chen argued that the agency did not have 

15 jurisdiction to commence removal proceedings and should have 

16 permitted him to apply for cancellation of removal. He 

17 argued that his notice to appear (“NTA”), which did not 

18 contain a hearing date or time, was deficient under Pereira 

19 v. Sessions, 138 S. Ct. 2105 (2018), and thus did not vest 

20 jurisdiction with the immigration court or stop his accrual 

21 of the physical presence required for cancellation.
3

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

2 number barred because it was his second motion and untimely 

3 because it was filed more than 15 years after his 2003 

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

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

6 have excused the time limit and reopened sua sponte given the 

7 intervening decision in Pereira. 

8 In Pereira, the Supreme Court held that the Immigration 

9 and Nationality Act unambiguously requires an NTA to include 

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

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

12 physical presence or residence for the purposes of qualifying 

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

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

15 the time limitation based on Pereira or exercise its authority 

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

17 case. Nor does the Supreme Court's recent decision in Niz18 Chavez v. Garland, No. 19-863, 2021 WL 1676619 (Apr. 29, 

19 2021), which held that the required information must be set 

20 forth in one NTA, require a different result. Although there 

21 is an NTA in the record that does not include a hearing time 
4

1 or place, that NTA was never filed or used to commence removal 

2 proceedings. See Arenas-Yepes v. Gonzales, 421 F.3d 111, 116 

3 (2d Cir. 2005) (providing that immigration proceedings 

4 commence when a charging document is filed with the 

5 immigration court and that “it has never been the case . . . 

6 that the mere issuance or service on an alien of a charging 

7 document ‘commenced’ immigration proceedings against the 

8 alien”). Rather, Chen was placed in exclusion proceedings

9 by Notice to Applicant for Admission Deferred for Hearing 

10 Before an Immigration Judge (Form I-122), which included a 

11 hearing date, time, and place, and thus was sufficient to 

12 commence those proceedings. See 8 C.F.R. § 1240.30 (“An 

13 exclusion proceeding is commenced by the filing of Form I–

14 122 with the Immigration Court.”). Further, given that Chen 

15 was in exclusion proceedings, he is not eligible for 

16 cancellation of removal or its predecessor suspension of 

17 deportation. See Patel v. McElroy, 143 F.3d 56, 60–61 (2d 

18 Cir. 1998) (“[S]uspension of deportation . . . is available 

19 to aliens in deportation but not in exclusion proceedings.”).

20 For the foregoing reasons, the petition for review is 

21 DENIED. All pending motions and applications are DENIED and 
5

1 stays VACATED.

2 FOR THE COURT: 

3 Catherine O’Hagan Wolfe, 

4 Clerk of Court