FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL POSOS-SANCHEZ, AKA Elias 

Avalos Fonseca, AKA Angel 

Figueroa Martinez, AKA Pedro 

Soto-Hernandez,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 17-72002

Agency No.

A092-724-951

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 7, 2021

Pasadena, California

Filed July 7, 2021

Before: Kim McLane Wardlaw, Ronald M. Gould, and 

John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw
2 POSOS-SANCHEZ V. GARLAND

SUMMARY*

Immigration

Denying in part and granting in part Angel PososSanchez’s petition for review of a decision of the Board of 

Immigration Appeals, and remanding, the panel held that: 

1) the agency correctly concluded that Posos had not been 

“admitted” to the United States and was therefore removable 

and ineligible to adjust his status; and 2) in light of Pereira 

v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. 

Garland, 141 S. Ct. 1474 (2021), the Notice to Appear 

(NTA) served on Posos – which lacked the time and date of 

his removal proceedings – did not terminate his period of 

physical presence in the United States and, as a result, the 

agency erred in finding him ineligible for voluntary 

departure on the ground that he had not been physically 

present for a year before service his NTA.

The panel concluded that the IJ correctly concluded that 

Posos had not been “admitted” as required by 8 U.S.C. 

§ 1182(a)(6)(A)(i) (removability ground based on lack of 

admission) and 8 U.S.C. § 1255(a) (adjustment of status). 

The panel explained that 8 U.S.C. § 1101(a)(13)(A) defines 

“admission” and “admitted” as “the lawful entry of the alien 

into the United States after inspection and authorization by 

an immigration officer,” and that, based on this court’s 

precedent, unless an immigration official has inspected a 

noncitizen at a port of entry and then granted that noncitizen 

permission to enter the United States, that noncitizen has not 

been “admitted.” Accordingly, the panel concluded that 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
POSOS-SANCHEZ V. GARLAND 3

Posos had not been admitted when agents at a border patrol 

checkpoint in San Clemente, California, apprehended and 

released him after he showed them his then-valid temporary 

resident card. The panel assumed that these actions could 

amount to “inspection and authorization,” but explained the 

event did not take place at a “port of entry,” as the checkpoint 

sits well within the United States. Noting that the court has 

read the term “admitted” more broadly when statutory 

context demanded, the panel found no factual or legal 

ground to do so here.

The panel observed that the BIA had reached the same 

result as the IJ, but concluded that the BIA erred in 

concluding that INS’s ultimate decision to deny Posos 

temporary resident status would have undone any 

hypothetical admission at the checkpoint. The panel 

concluded that the BIA’s reasoning turned on an erroneous 

interpretation of United States v. Hernandez-Arias, 757 F.3d 

874 (9th Cir. 2014), explaining that, under Hernandez-Arias, 

noncitizens factually admitted at a U.S. port of entry while 

they hold temporary resident status do not magically become 

unadmitted once their temporary resident status ends. 

Nevertheless, because the IJ’s legal analysis was sound, the 

panel affirmed the agency’s conclusion that Posos was 

removable and ineligible to adjust status.

As to the denial of voluntary departure under 8 U.S.C. 

§ 1229c, the panel concluded that the agency erred in 

concluding that Posos lacked the requisite period of physical 

presence prior to service of his NTA. Under 

§ 1229c(b)(1)(A), an IJ must find, among other things, that 

the noncitizen “has been physically present in the United 

States for a period of at least one year immediately preceding 

the date the notice to appear was served under section 

1229(a).” The panel explained that, unlike the agency at the 
4 POSOS-SANCHEZ V. GARLAND

time of Posos’s proceedings, it had the benefit of the 

Supreme Court’s decisions in Pereira and Niz-Chavez. In 

light of those rulings, the panel concluded that: 1) 

§ 1229c(b)(1)(A) unambiguously requires that the NTA, if it 

is to stop a noncitizen from earning physical-presence time 

for voluntary departure, must comply with § 1229(a), which 

includes the requirement that the NTA include the time of 

removal proceedings; and 2) § 1229c(b)(1)(A) 

unambiguously envisions a § 1229(a) NTA as being a single 

document. Bringing these two principles together, the panel 

concluded: a noncitizen builds up physical-presence time 

under § 1229c(b)(1)(A) from the moment he enters the 

United States until the moment he receives a single 

document that provides him with all the information listed in 

§ 1229(a). Explaining that this conclusion flows from the 

statute’s unambiguous text, structure, and history, the panel 

concluded it had no need to defer to any previous 

interpretation advanced by the BIA.

Applying these principles to Posos’s case, the panel 

concluded that he never received the NTA that 

§ 1229c(b)(1)(A) demands because his NTA lacked the time 

and date of his hearing and, as a result, Posos continued to 

accrue physical-presence time ever since he entered the 

country in March 2011. Because Posos had over five years 

of physical-presence when the IJ ordered him removed, and 

thus indisputably satisfied § 1229c(b)(1)(A)’s physicalpresence requirement, the panel concluded that the agency 

wrongly found Posos ineligible for voluntary departure. The 

panel remanded to the agency to make further findings and 

conclusions about Posos’s eligibility for voluntary 

departure.
POSOS-SANCHEZ V. GARLAND 5

COUNSEL

Michael J. Selph (argued), Law Offices of Michael J. Selph,

North Hollywood, California, for Petitioner.

Rachel L. Browning (argued), Trial Attorney; Keith I. 

McManus, Assistant Director; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.

OPINION

WARDLAW, Circuit Judge

In September 1990, United States Border Patrol agents 

stopped Angel Posos-Sanchez at a border patrol checkpoint 

in San Clemente, California. They examined his 

immigration papers—which at the time authorized him to 

work and reside in the United States—and then let him go 

on his way. This incident became important decades later, 

when Posos faced removal proceedings. At that time, he 

applied to adjust his status and contested his removal from 

the United States because he claimed that the officials in San 

Clemente had “admitted” him to the United States. See 

8 U.S.C. §§ 1101(a)(13)(A), 1182(a)(6)(A)(i), 1255(a).

Posos also applied for voluntary departure at the end of 

his removal proceedings, so that he could leave the United 

States on his terms. See id. § 1229c. He made that request 

even though he had not been physically present within the 

United States for a year before the Department of Homeland 

Security (DHS) served him with the operative Notice to 

Appear (NTA). At the time, he thus appeared ineligible for 

voluntary departure. See id. § 1229c(b)(1)(A). Yet his NTA 
6 POSOS-SANCHEZ V. GARLAND

did not state the time or date of Posos’s removal 

proceedings—a fact that now sets off alarm bells given the 

Supreme Court’s groundbreaking decisions in Pereira v. 

Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. 

Garland, 141 S. Ct. 1474 (2021).

Though Posos lost on both fronts before the Immigration 

Judge (IJ) and the Board of Immigration Appeals (BIA) 

(collectively “the agency”), we render a mixed verdict here. 

On the one hand, the agency properly found that immigration 

officials did not “admit” Posos to the United States when 

they allowed him to pass through the San Clemente 

checkpoint in 1990. He is therefore removable and ineligible 

to adjust his status. On the other hand, the agency erred in 

finding him ineligible for voluntary departure under 

§ 1229c(b)(1)(A). The missing date-and-time information 

on Posos’s NTA means that DHS never served him with the 

kind of NTA that § 1229c(b)(1)(A) demands. Accordingly, 

that NTA did not stop the clock for purposes of computing 

the time during which he was physically present in the 

United States under § 1229c(b)(1)(A). And as a result, 

Posos had racked up five years of physical presence when 

the IJ ordered him removed, and he was therefore eligible 

for voluntary departure if he satisfied the other statutory 

conditions.

We thus deny in part and grant in part Posos’s petition 

and remand for further consideration of his application for 

voluntary departure.

I.

A.

Posos was born in Zacatepec, Mexico, and at age 17, he 

set out on foot for the United States. At some point in 1980, 
POSOS-SANCHEZ V. GARLAND 7

he crossed the southern border of the United States without 

encountering American immigration authorities. He has 

lived, worked, and built a family here ever since.

During the first decade that Posos lived in the country, 

Congress passed the Immigration Reform and Control Act 

(IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (1986), and the 

amnesty provisions therein, see 8 U.S.C. § 1255a. These 

amnesty provisions provided a path to permanent resident 

status for noncitizens who had resided unlawfully and been 

physically present in the United States since January 1, 1982. 

See Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1134 (9th 

Cir. 1999). Qualifying noncitizens who wished to take 

advantage of this system applied “first for lawful temporary 

resident status, and then, after a one-year wait, for permanent 

residency.” Id.

Posos applied for temporary resident status under this 

law, but, because of the law’s confidentiality provisions, we 

aren’t privy to every detail about that application. See 

8 U.S.C. § 1255a(c)(5). Still, we know that, on May 4, 1988, 

the Immigration and Naturalization Service (INS) issued 

Posos a temporary resident card (Form I-688) that expired 

on November 30, 1990. This card stated that Posos could 

legally “reside and work in U.S. until [the] card expires.” 

Then, on August 24, 1993, the INS informed Posos that his 

“application for the benefit of temporary resident status must 

be and is hereby denied.” Nothing in the record suggests that 

Posos ever held either temporary or permanent resident 

status after August 24, 1993.

Yet his temporary resident card remained valid when 

immigration officials stopped him at the border patrol 

checkpoint in San Clemente, California on September 24, 

1990. See generally 8 U.S.C. § 1357(a); 8 C.F.R. § 287.1(a). 

Posos lived in Riverside, California at the time, and had 
8 POSOS-SANCHEZ V. GARLAND

traveled to San Diego for recreational purposes. On Posos’s 

way back home, the border patrol agent manning the San 

Clemente checkpoint stopped Posos and his passengers and 

asked them about their citizenship status. Posos stated that 

he was a Mexican citizen and presented the border patrol 

agent with his valid temporary resident card. As a result, the 

border patrol agents released Posos on his own 

recognizance; his passengers, who were undocumented 

Mexican citizens, voluntarily elected to return to Mexico 

rather than face deportation proceedings.

After the INS denied his application for temporary 

resident status in 1993, Posos continued to live and work in 

the United States. However, in either 2010 or 2011, 

Immigration and Customs Enforcement removed Posos to 

Mexico (the record does not explain how or why this 

removal came about).

Seeking to reunite with his family, Posos tried to reenter 

the United States at the San Ysidro Port of Entry on March 

9, 2011. There, immigration officials stopped the vehicle 

bringing him into the country and found him hiding in the 

trunk of the car. Posos admitted to these officials that he 

lacked the necessary documentation to enter or remain in the 

United States. They therefore detained him and referred him 

to the Immigration Court for removal proceedings.1 

Importantly for our purposes here, these immigration 

officials did not give Posos written, verbal, or nonverbal 

authorization to enter the United States, and Posos has never 

received such permission.

1 Posos was released on bond on May 16, 2011.
POSOS-SANCHEZ V. GARLAND 9

B.

On May 2, 2011, DHS filed an NTA, alleging that Posos 

was removable as a native and citizen of Mexico, who had 

entered the United States without being admitted or paroled 

after inspection. This NTA failed to state the date and time 

of Posos’s removal proceedings. Later on, however, DHS 

sent Posos notices of hearing containing that missing 

information.

Before the IJ, Posos conceded most of the allegations in 

the NTA, denying only the allegation that an immigration 

official had not “admitted” him to the United States. He also 

applied for affirmative immigration relief, including 

adjustment of status under 8 U.S.C. § 1255(a), cancellation 

of removal under 8 U.S.C. § 1229b, and voluntary departure 

under 8 U.S.C. § 1229c. In filing his application to adjust 

his status, Posos maintained that immigration officials had 

“admitted” him to the United States.

Posos offered two theories for his “admission” into the 

country. First, he argued that he had been admitted when he 

received temporary resident status. Second, he claimed that 

immigration officials had admitted him into the United 

States on September 24, 1990, when the border patrol agents 

at the San Clemente checkpoint apprehended and released 

him after he showed them his temporary resident card.

The IJ overseeing Posos’s case rejected both arguments, 

thereby finding Posos removable and ineligible to adjust his 

status. The IJ further denied Posos’s application for 

cancellation of removal because Posos lacked a qualifying 

relative, and found Posos ineligible for voluntary departure 

because he had last entered the United States less than a year 

before DHS served him with the operative NTA.
10 POSOS-SANCHEZ V. GARLAND

On appeal before the BIA, Posos contested the IJ’s 

decision as to his lack of an “admission” to the United States 

(based solely on the events at the San Clemente checkpoint) 

and the IJ’s finding that he was ineligible for voluntary 

departure.2 Citing Matter of Burbano, 20 I. & N. Dec. 872, 

874 (B.I.A. 1994), the BIA adopted and affirmed the IJ’s 

decision, adding only that INS’s ultimate decision to deny 

Posos temporary resident status would have undone any 

hypothetical admission at the San Clemente checkpoint. 

Posos timely petitioned for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(1) and 

§ 1252(a)(2)(D).3 Because the BIA cited Matter of Burbano

and also provided its own analysis in this case, we review 

both the BIA and IJ’s decisions. Cordoba v. Barr, 962 F.3d 

479, 481 (9th Cir. 2020). We review the agency’s legal 

conclusions de novo and review its factual findings for 

substantial evidence. Bringas-Rodriguez v. Sessions, 

850 F.3d 1051, 1059 (9th Cir. 2017) (en banc).

2 Posos did not pursue his earlier argument that he was still 

“admitted” to the United States based on his prior temporary resident 

status. Nor has he ever argued that immigration officials “paroled” him 

into the United States under 8 U.S.C. § 1182(a)(6)(A)(i) or § 1255(a). 

We thus lack jurisdiction to consider these issues. Barron v. Ashcroft, 

358 F.3d 674, 678 (9th Cir. 2004).

3 While we cannot review a discretionary denial of voluntary 

departure, 8 U.S.C. § 1252(a)(2)(B)(i), we have jurisdiction to correct 

erroneous interpretations of 8 U.S.C. § 1229c, see id. § 1252(a)(2)(D); 

Corro-Barragan v. Holder, 718 F.3d 1174, 1177 (9th Cir. 2013).
POSOS-SANCHEZ V. GARLAND 11

III.

We first examine whether immigration officials 

“admitted” Posos to the United States at the San Clemente 

checkpoint on September 24, 1990—as Posos’s 

removability and application to adjust his status both turn on 

the answer to that question. See 8 U.S.C. 

§§ 1182(a)(6)(A)(i), 1255(a).

A.

The INA generally defines the words “admission” and 

“admitted” as “the lawful entry of the alien into the United 

States after inspection and authorization by an immigration 

officer.” Id. § 1101(a)(13)(A); accord Sanchez v. Mayorkas, 

2021 WL 2301964, at *2 (U.S. June 7, 2021). We have 

explained that this “definition refers expressly to entry into

the United States, denoting by its plain terms passage into 

the country from abroad at a port of entry.” NegreteRamirez v. Holder, 741 F.3d 1047, 1051 (9th Cir. 2014); see 

also Torres v. Barr, 976 F.3d 918, 924 (9th Cir. 2020) (en 

banc) (“[A]lthough the INA does not currently define the 

term ‘entry,’ we have long understood this term to refer to 

‘coming from outside’ into the United States.” (citation 

omitted)). Put otherwise, unless an immigration official has 

inspected a noncitizen at a port of entry and then granted that 

noncitizen permission to enter the United States, that 

noncitizen has not been “admitted” under § 1101(a)(13)(A). 

See United States v. Hernandez-Arias, 757 F.3d 874, 880 

(9th Cir. 2014).

Accordingly, immigration officials have not “admitted” 

Posos to the United States under § 1101(a)(13)(A). Though 

these officials have detained and inspected Posos multiple 

times at a U.S. port of entry, he concedes that they have 

never granted him permission to enter the United States.
12 POSOS-SANCHEZ V. GARLAND

The border patrol’s September 1990 apprehension, 

interrogation, and release of Posos at a checkpoint in San 

Clemente, California does not change this calculus. We 

assume that these actions could theoretically amount to an 

“inspection and authorization” under § 1101(a)(13)(A). 

Even so, that inspection and authorization did not take place 

at a “port of entry”; the San Clemente checkpoint sits well 

within the United States. Posos thus cannot have lawfully 

entered “the United States after [this] inspection and 

authorization.” 8 U.S.C. § 1101(a)(13)(A) (emphasis 

added).

Still, § 1101(a)(13)(A)’s definition is just a default, and, 

when statutory context has demanded, we have read the term 

“admitted” more broadly than the “strict definition” in 

§ 1101(a)(13)(A). Hernandez-Arias, 757 F.3d at 880 

(quoting Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1015 

(9th Cir. 2006)). But the Supreme Court recently 

emphasized that “[s]ection 1255 generally requires a lawful 

admission” of the kind described in § 1101(a)(13)(A) 

“before a person can obtain” lawful permanent-resident 

status. Sanchez, 2021 WL 2301964 at *5; see also id. at *2. 

And we have found no factual or legal ground that would 

justify reading the word “admitted” in either 

§ 1182(a)(6)(A)(i) or § 1255(a) to encompass Posos’s 

interaction with officials at the San Clemente checkpoint. 

The IJ therefore correctly concluded that Posos had not been 

“admitted” to the United States as required under 

§ 1182(a)(6)(A)(i) or § 1255(a).

B.

The BIA reached the same result, but its route there 

turned on an erroneous interpretation of our decision in 

Hernandez-Arias. We take this opportunity to correct the 

BIA’s reasoning.
POSOS-SANCHEZ V. GARLAND 13

Hernandez-Arias assumed that a noncitizen with 

temporary resident status under IRCA’s amnesty provisions 

(8 U.S.C. § 1255a(a)) had received a fictional admission to 

the United States. 757 F.3d at 881. But even so, the 

government’s decision to terminate that status under 

8 C.F.R. § 245a.2(u)(4) fully unwound that “statutory 

fiction.” Id. By contrast, we never suggested that 

terminating a noncitizen’s temporary resident status would 

negate a noncitizen’s “factual admission that occurs during 

a period of time that the alien is legally entitled to exit and 

reenter the United States.” Gomez v. Lynch, 831 F.3d 652, 

662 (5th Cir. 2016). We instead cut off that argument, 

stating that “our review . . . [was] confined to the operation 

of IRCA and its unique implementing regulations” and 

“limit[ing] the effect of our holding and our discussion . . .

to those admissions arising under . . . 8 U.S.C. § 1255a(a).” 

Hernandez-Arias, 757 F.3d at 881 n.3.

The BIA thus stretched Hernandez-Arias beyond that 

decision’s limits when it concluded that the INS’s revocation 

of Posos’s temporary resident status in 1993 undid any 

theoretical “factual admission” at the San Clemente 

checkpoint in 1990. Noncitizens factually admitted to the 

United States at a U.S. port of entry while they hold 

temporary resident status under § 1255a(a) do not magically 

become unadmitted once their temporary resident status 

ends. See id. They have, after all, still been “inspected” and 

“authorized” to enter the United States at a port of entry. 

8 U.S.C. § 1101(a)(13)(A).

***

Because the IJ’s legal analysis was sound, we affirm the 

agency’s conclusion that Posos was removable under 

§ 1182(a)(6)(A)(i) and ineligible to adjust his status under 

§ 1255(a) and deny his petition on this point.
14 POSOS-SANCHEZ V. GARLAND

IV.

That leaves the question of whether the agency correctly 

denied Posos’s application for voluntary departure because 

he had not been physically present in the United States for at 

least one year before DHS served him with the NTA in this 

case. See 8 U.S.C. § 1229c(b)(1)(A). Unlike the agency, we 

have the benefit of the Supreme Court’s decisions in Pereira

and Niz-Chavez, and, given those rulings, we grant Posos’s

petition on this front and return the case to the agency to reexamine his application for voluntary departure.

A.

After ordering a noncitizen removed from the United 

States, an IJ may permit that noncitizen to leave the country 

voluntarily and at his own expense, rather than being 

deported by the government. See 8 U.S.C. § 1229c(b). The 

IJ must, however, make certain findings before authorizing 

that discretionary relief. See id. § 1229c(b)(1). Among 

other things and at issue here, the IJ must find that the 

noncitizen “has been physically present in the United States 

for a period of at least one year immediately preceding the 

date the notice to appear was served under section 1229(a).” 

Id. § 1229c(b)(1)(A).

Whether a noncitizen meets this physical-presence 

requirement appears, at first glance, a simple enough 

question. Once DHS serves a noncitizen with an NTA 

“under section 1229(a),” that noncitizen ordinarily stops 

accruing physical-presence time. Id. An IJ need then only 

determine the date of service, the date the noncitizen last 

entered the United States, and how much time passed 

between the two. If more than a year has elapsed, the 

noncitizen may merit voluntary departure.
POSOS-SANCHEZ V. GARLAND 15

But in immigration law, provisions that seem simple 

require delicate parsing. And here, the phrase “the date the 

notice to appear was served under section 1229(a)” plays a 

critical role in calculating a noncitizen’s physical-presence 

time. Id. § 1229c(b)(1)(A). It does so in two ways.

First, this phrase unambiguously requires that the NTA, 

if it is to stop a noncitizen from earning physical-presence 

time, must comply with § 1229(a)’s requirements. To start, 

the statute expressly references “section 1229(a),” telling a 

reader “where to look to find out what ‘notice to appear’ 

means.” Pereira, 138 S. Ct. at 2114. It also demands 

immigration officials serve the NTA “under section 

1229(a).” And while the word “under” can have many 

meanings, we think Pereira compels the conclusion here that 

it signifies “‘in accordance with’ or ‘according to.’” Id.

(citations omitted). After all, serving a § 1229(a) NTA plays 

the same role in both § 1229b(d)(1)’s stop-time rule (at issue 

in Pereira) and § 1229c(b)(1)(A)’s physical-presence 

requirement (at issue here). It marks the end of the temporal 

period that determines, in part, a noncitizen’s eligibility for 

voluntary departure or cancellation of removal.

Moreover, because the Supreme Court has already told 

us what Congress meant by “under section 1229(a)” when 

Congress used this phrase in § 1229b(d)(1)(A), this reading 

should come as no surprise. For § 1229c(b)(1)(A) uses the 

exact same language, and interpreting that phrase differently 

would contravene the “normal rule of statutory construction 

that identical words used in different parts of the same act 

are intended to have the same meaning.” Pereira, 138 S. Ct. 

at 2115 (citation omitted); see generally Corro-Barragan, 

718 F.3d at 1178 (explaining that both provisions came into 

being when Congress overhauled immigration law through 

the Illegal Immigration Reform and Immigrant 
16 POSOS-SANCHEZ V. GARLAND

Responsibility Act of 1996 (IIRIRA)). For these reasons, 

§ 1229c(b)(1)(A) requires DHS to provide a noncitizen with 

an NTA containing all the information that Congress listed 

in § 1229(a). See Niz-Chavez, 141 S. Ct. at 1480; Pereira, 

138 S. Ct. at 2114.

Section 1229c(b)(1)(A)’s second subtlety is that it 

unambiguously envisions a § 1229(a) NTA as being a single 

document. The statute speaks of “the notice to appear.” 

8 U.S.C. § 1229c(b)(1)(A) (emphasis added). It thus joins 

the article “the” with the singular noun “notice to appear”—

“a combination that . . . seems to suggest a discrete 

document.” Niz-Chavez, 141 S. Ct. at 1483. Note also that 

Congress ended § 1229c(b)(1)(A)’s physical-presence 

period on “the date” the government serves a noncitizen with 

a § 1229(a) NTA. 8 U.S.C. § 1229c(b)(1)(A) (emphasis 

added). That language “equate[s] servi[ng]” a § 1229(a) 

NTA “with a discrete moment, not an ongoing endeavor.” 

Niz-Chavez, 141 S. Ct. at 1483. Add to this Niz-Chavez’s 

extended and pertinent discussion of IIRIRA’s statutory 

structure and history, see id. at 1482–84, and we have no 

doubt that § 1229c(b)(1)(A)’s physical-presence period ends 

only once a noncitizen receives a single document 

containing the information required by § 1229(a).

Bringing these two principles together: a noncitizen 

builds up physical-presence time under § 1229c(b)(1)(A) 

from the moment he enters the United States until the 

moment he receives a single document that provides him 

with all the information Congress listed in 8 U.S.C. 

§ 1229(a)—i.e., a § 1229(a) NTA. This conclusion flows 

from IIRIRA’s unambiguous text, structure, and history. We 

thus have no need to defer to any previous interpretation 

advanced by the BIA. See Niz-Chavez, 141 S. Ct. at 1480; 

Pereira, 138 S. Ct. at 2113–14.
POSOS-SANCHEZ V. GARLAND 17

B.

These principles make resolving Posos’s case 

straightforward. He received an NTA that omitted “[t]he 

time . . . at which” his removal “proceedings [would] be 

held,” as 8 U.S.C. § 1229(a)(1)(G)(i) requires. He then 

received various notices of hearing, which provided that 

missing information, but otherwise lacked the information 

listed in § 1229(a)(1). He thus never received “the notice to 

appear . . . served under section 1229(a)” that 

§ 1229c(b)(1)(A) demands.

As a result, Posos has continued to accrue physicalpresence time ever since he entered the country in March 

2011. This means he had over five years of physicalpresence time when the IJ ordered him removed, and he

indisputably satisfied § 1229c(b)(1)(A)’s physical-presence 

requirement. The agency therefore wrongly (though at the 

time, understandably) found Posos ineligible for voluntary 

departure. Because both the IJ and the BIA denied Posos’s 

application for voluntary departure solely on the basis of 

inadequate physical presence, we leave it to the IJ to 

consider whether Posos satisfies § 1229c(b)’s other 

requirements.

V.

For these reasons, we grant in part and deny in part 

Posos’s petition for review and remand to the agency to 

make further findings and conclusions about his eligibility 

for voluntary departure.
18 POSOS-SANCHEZ V. GARLAND

PETITION GRANTED IN PART AND DENIED IN 

PART; REMANDED.4

4 In accordance with Federal Rule of Appellate Procedure 39(a)(4), 

we award costs to Posos.