United States Court of Appeals

for the Fifth Circuit

No. 19-60808

Summary Calendar

Pedro Penaloza-Fuentes, also known as Jorge Castillo,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A 200 968 217

Before Owen, Chief Judge, and Dennis and Ho, Circuit Judges.

Per Curiam:*

Pedro Penaloza-Fuentes, a native and citizen of Mexico, seeks review 

of a Board of Immigration Appeals (BIA) decision denying his motion to 

reconsider or reopen. The petition for review is GRANTED in part, and 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 19, 2022

Lyle W. Cayce

Clerk

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No. 19-60808

2

this case is hereby REMANDED to the BIA for consideration under NizChavez v. Garland, 141 S. Ct. 1474 (2021).

This court reviews the denial of motions to reopen and for 

reconsideration under a highly deferential abuse-of-discretion standard. 

Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The Attorney General 

has discretion to cancel the removal of “an alien who is inadmissible or 

deportable from the United States” if the person meets specified criteria. 8 

U.S.C. § 1229b(b). To qualify, an alien must have been “physically present 

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

§ 1229b(b)(1)(A). The stop-time rule ends the alien’s requisite period of 

physical presence in the United States “when the alien is served a notice to 

appear under section 1229(a).” § 1229b(d)(1)(A).

A notice to appear (NTA) must contain, inter alia, the time and place 

at which removal proceedings will be held. § 1229(a)(1)(G)(i). In NizChavez, the Supreme Court held that an NTA sufficient to trigger the stoptime rule must be a “single document containing all the information an 

individual needs to know about his removal hearing” specified in 

§ 1229(a)(1). 141 S. Ct. at 1478. Thus, under Niz-Chavez, an NTA sufficient 

to trigger the stop-time rule must be a single document containing “the 

nature of the proceedings against the alien, the legal authority for the 

proceedings, the charges against the alien, the fact that the alien may be 

represented by counsel, the time and place at which the proceedings will 

be held, and the consequences of failing to appear.” Id. at 1479 (emphasis 

added); see also 8 U.S.C. § 1229(a)(1). 

The Supreme Court rejected the two-step notice procedure for stoptime purposes, stating that Congress contemplated that an NTA would be a 

single document. Niz-Chavez, 141 S. Ct. at 1480. Under Niz-Chavez, 

Penaloza-Fuentes’s NTA did not contain the information required to trigger 

the stop-time rule. Accordingly, this petition for review is remanded to the 

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BIA for consideration under Niz-Chavez. As to Penaloza-Fuentes’s claim 

that the BIA abused its discretion by refusing to remand his case for 

consideration of his spouse’s pending immediate relative I-130 petition, the 

petition for review is denied.

* * *

The petition for review is GRANTED in part and DENIED in part.

This matter is hereby REMANDED to the BIA.

Case: 19-60808 Document: 00516172338 Page: 3 Date Filed: 01/19/2022