19-1911

Jiang v. Garland

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2021

No. 19-1911

NAIZHU JIANG,

Petitioner,

v.

MERRICK B. GARLAND,

UNITED STATES ATTORNEY GENERAL,

Respondent.

∗

On Appeal from the Board of Immigration Appeals

SUBMITTED: NOVEMBER 8, 2021

DECIDED: NOVEMBER 24, 2021

∗ The Clerk of Court is directed to amend the caption as above. 

See Fed. R. App. P. 43(c)(2). 
2

Before: LEVAL, CABRANES, and CHIN, Circuit Judges.

Petitioner Naizhu Jiang petitions for review of a May 30, 2019 

decision of the Board of Immigration Appeals denying his motion to 

reopen proceedings. Recent Supreme Court jurisprudence has 

established that Notices to Appear issued under 8 U.S.C. § 1229(a)(1) 

that fail to provide time-and-place information for removal 

proceedings in a single document do not satisfy the statutory 

requirements in 8 U.S.C. § 1229(a)(1), and thus do not cut off the alien’s 

time of continuous presence in the United States needed for 

discretionary relief from removal. See Niz-Chavez v. Garland, 141 S. Ct. 

1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). The question 

presented in this case is whether an Order to Show Cause, an older 

version of a charging document issued pursuant to 8 U.S.C. § 

1252b(a)(1) (1994) prior to the enactment of 8 U.S.C. § 1229(a)(1), need 

also provide that information in a single document in order to cut off 

the alien’s continuous presence in the United States. We answer “no,”

and accordingly DENY Jiang’s petition for review.

Meer M. M. Rahman, New York, NY, for 

Petitioner.

Joseph H. Hunt, Assistant Attorney General; 

Leslie McKay & Margot L. Carter, Senior 

Litigation Counsel, Office of Immigration 

Litigation, United States Department of 

Justice, Washington, DC, for Respondent.
3

PER CURIAM:

Congress has long afforded the Executive Branch discretion to 

allow otherwise removable aliens to remain in the United States. To 

be eligible for certain forms of this discretionary relief from removal, 

an alien must show that he or she has maintained a “continuous 

physical presence” in the United States for a specified number of years

(the “residency” requirement). In 1996, Congress passed a statute —

the Illegal Immigration Reform and Immigrant Responsibility Act 

(“IIRIRA”), Pub. L. No. 104–208, 110 Stat. 3009-546 — which, among 

other things, stopped an alien’s residency clock once the alien received

a charging document that thereby commences the alien’s removal 

proceedings; in other words, any time the alien would spend in the 

United States after receiving the charging document would not be 

credited towards the residency requirement. Congress made this socalled stop-time rule applicable not only to the new charging 

documents to be issued under the IIRIRA — which are designated by 
4

the statute as “Notice[s] to Appear” (“NTAs”) — but also retroactively 

applied the stop-time rule to older charging documents issued under 

the previous statute, which were designated as Orders to Show Cause 

(“OTSCs”). Recent Supreme Court cases have held that, in order to 

trigger the stop-time rule, the time and place of the alien’s removal 

hearing must be included in a single NTA. Niz-Chavez v. Garland, 141 

S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). The 

question presented in this case is whether the same requirement 

applies to the older OTSCs issued to aliens prior to the IIRIRA. We 

hold that it does not.

I.

Petitioner Naizhu Jiang is a native and citizen of China. He 

entered the United States on September 19, 1994, without inspection, 

and was served the next day with an OTSC alleging that he was subject 

to deportation pursuant to Section 241(a)(1)(B) of the Immigration and 

Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (1994). In the section of the 
5

OTSC — issued by the Immigration and Naturalization Service —

ordering him to appear before an immigration judge (“IJ”), instead of 

specifying a time and place, the OTSC stated that the hearing was “[t]o 

be calendared and notice [would be] provided by the office of the [IJ]” 

by subsequent mailing. Certified Administrative Record at 166. That 

subsequent notice was mailed to Jiang on February 15, 1995, informing 

him that a hearing before the immigration court had been scheduled 

on March 22, 1995. 

After a series of further notices rescheduling the hearing, as well 

as Jiang’s successful motion to transfer venue from Buffalo to the New 

York City immigration court, Jiang attended his first hearing before an 

IJ on August 31, 1995. Through counsel, he submitted an application 

for asylum and withholding of deportation, or — in the alternative —

requested voluntary departure. At a hearing held on April 8, 1996, a 

different IJ did not find Jiang’s testimony to be credible and denied his 

application for asylum and for withholding of deportation; she did, 
6

however, grant Jiang’s request for voluntary departure. Jiang 

appealed to the Board of Immigration Appeals (“BIA”), which 

summarily dismissed his appeal. In re Naizhu Jiang, No. A 073 200 066 

(B.I.A. Jan. 16, 1997). 

Jiang, however, declined to leave the United States, and has 

remained here since then. In the intervening years, he has fathered

two children, both of whom are American citizens, and he has had no 

criminal record or criminal proceedings initiated against him. And on 

September 17, 2018 — more than twenty years after the BIA summarily 

dismissed his original appeal — he moved before the BIA to reopen 

his case. Since his first appeal was dismissed by the BIA two decades 

ago, a number of important changes took place to the immigration 

laws.
7

First, Congress passed the IIRIRA,1 which “established several 

new terms of art in immigration law.” Rojas-Reyes v. I.N.S., 235 F.3d 

115, 120 (2d Cir. 2000). For example, the IIRIRA created a new type of 

charging document to be served on aliens — the NTA — which 

replaced the older OTSC. Compare 8 U.S.C. § 1252b(a)(1) (1994) 

(describing the OTSC) with 8 U.S.C. § 1229(a)(1) (describing the NTA). 

The law also replaced an older type of discretionary relief, “suspension 

of deportation,” with a new form of relief, “cancellation of removal.” 

To qualify for cancellation of removal under the IIRIRA, aliens were 

required to satisfy stricter eligibility requirements, including a longer 

period of residence in the United States: ten years of continuous 

physical presence in the country in most cases for cancellation-ofremoval eligibility, as opposed to seven years for the older 

“suspension of deportation.” Compare 8 U.S.C. § 1254(a)(1) (1994) 

1 The IIRIRA, though signed into law on September 30, 1996,

went into effect on April 1, 1997, i.e., after Jiang’s initial appeal was 

decided by the BIA.
8

(describing suspension-of-deportation eligibility) with 8 U.S.C. § 

1229b(b)(1) (describing cancellation-of-removal eligibility).

Apart from increasing the amount of time an alien had to be 

physically present in the United States in order to be eligible for 

discretionary relief, the IIRIRA also created a new method for 

calculating that time. The IIRIRA introduced the stop-time rule, a 

provision that “terminates an alien’s accrual of time-in-residence upon 

the service of the charging document that initiates removal 

proceedings.” Rojas-Reyes, 235 F.3d at 120; see 8 U.S.C. § 1229b(d)(1)

(“[A]ny period of continuous residence or continuous physical 

presence in the United States shall be deemed to end . . . when the alien 

is served a notice to appear under section 1229(a).”). And while the 

IIRIRA generally applies only to proceedings initiated on or after the 

statute’s effective date of April 1, 1997, see IIRIRA § 309(c)(1), 110 Stat. 

at 3009-625 (codified at 8 U.S.C. § 1101 note), Congress also 

retroactively applied the IIRIRA’s stop-time rule upon service of 
9

OTSCs issued before its enactment, IIRIRA § 309(c)(5), 110 Stat. 3009-

627 (1996), amended by the Nicaraguan Adjustment and Central 

American Relief Act of 1997 (“NACARA”), Pub. L. No. 105-100, Title 

II, 111 Stat. 2160, 2193-2201 (Nov. 19, 1997), further amended by Pub. L. 

No. 105-139, 111 Stat. 2644 (Dec. 2, 1997).2 

Next, in 2018, the Supreme Court held that an NTA failing to 

designate the specific time or place of an alien’s removal proceedings 

was insufficient to fulfill the IIRIRA’s statutory requirements and was 

therefore ineligible to trigger the stop-time rule. Pereira, 138 S. Ct. at

2114. In Pereira, the petitioner received a putative NTA that did not 

2 The IIRIRA originally contained transitional rules providing 

that the stop-time rule would apply to NTAs “issued before, on, or 

after” the date of the IIRIRA’s enactment. IIRIRA § 309(c)(5), 110 Stat. 

at 3009-627. This language caused understandable confusion since no 

NTAs could have been issued before the IIRIRA’s enactment as the 

statute itself created this novel charging document. See Rojas Reyes, 

235 F.3d at 120. Recognizing this confusion, Congress subsequently 

passed the NACARA, which — among other things — replaced the 

words “notices to appear” with “orders to show cause” in the relevant 

IIRIRA transitional rule. 
10

specify the date and time of his removal hearing. Construing Section 

1229(a)(1)’s instruction that an NTA should “specif[y]” — among 

other things — “[t]he time and place at which the proceedings will be 

held,” 8 U.S.C. § 1229(a)(1)(G)(i), the Court found that the putative 

NTA issued to the petitioner did not meet the statutory requirements 

of Section 1229(a)(1)(G)(i) and could not, therefore, trigger Section 

1229b(d)(1)’s stop-time rule, which only applies “when the alien is 

served a notice to appear under section 1229(a).” 138 S. Ct. at 2114. 

In September 2018, shortly after that case was decided, and 

relying on its holding, Jiang moved the BIA to reopen his case. He 

pointed to the fact that the original OTSC he received on September 

20, 1994, did not specify the time or place of his deportation 

proceedings and argued on the basis of Pereira that the stop-time rule 

had not been triggered in his case. Consequently, he argued, he had 

been continuously present in the United States for more than ten years 
11

and was thus eligible for relief under the IIRIRA’s cancellation-ofremoval provisions, 8 U.S.C. § 1229b(b)(1). 

The BIA denied Jiang’s motion. First, it noted that motions to 

reopen must generally be filed “within 90 days of the date of entry of 

a final administrative order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i); 

see also 8 C.F.R. § 1003.2(c)(2), and that Jiang’s motion was therefore 

untimely.3 Next, the BIA found that — even if it were to equitably toll 

the 90-day deadline — the fact that Jiang had been issued a subsequent 

notice on February 15, 1995, containing the time and location for his 

initial hearing meant that his continuous physical presence ended on 

that day pursuant to the stop-time rule. In re Naizhu Jiang, No. A 073 

200 066 (B.I.A. May 30, 2019) (citing In re Mendoza-Hernandez & CapulaCortes, 27 I. & N. Dec. 520, 529 (B.I.A. 2019)). Jiang timely filed before 

this Court a petition for review of the BIA’s decision.

3 Jiang’s removal order became final on January 16, 1997, when 

the BIA summarily dismissed his appeal of the IJ’s order. His motion 

to reopen was filed on September 17, 2018.
12

While this matter was pending before this Court and after the 

parties submitted their briefs, the Supreme Court decided another case 

concerning NTAs that fail to include the statutorily required time and 

place of hearing. In Niz-Chavez v. Garland, the petitioner there received 

a putative NTA containing the charges against him, but which did not 

specify the time or place of his hearing. 141 S. Ct. at 1479. Two months 

later, the Government sent the petitioner a second document 

containing the time and place of his hearing. Id. The Government 

conceded that, under Pereira, the first document was insufficient to 

trigger the stop-time rule, but argued that upon receipt of the second 

document, all the information statutorily required under Section 

1229(a)(1) had been provided and that the stop-time rule should have 

triggered. Id. The Supreme Court rejected the Government’s position, 

and instead clarified that Section 1229(a)(1) — which describes the 

information required in “a ‘notice to appear’” (emphasis added) —

demands that the information be provided in a single NTA. Id. at 1480.
13

We now consider in this appeal whether the holdings in Pereira 

and Niz-Chavez concerning the requirement that time and place of 

hearing be specified in a single NTA in order to successfully trigger 

the stop-time rule applies also to OTSCs issued prior to the IIRIRA. 

We conclude that they do not.

II.

When considering a petition for review of an order denying a

statutory motion to reopen, we review the BIA’s conclusions of law de 

novo. Luna v. Holder, 637 F.3d 85, 102 (2d Cir. 2011). “When the BIA 

has applied the correct law, its decision to deny a motion to reopen 

deportation proceedings is reviewed to determine whether the 

decision was arbitrary, capricious, an abuse of discretion or otherwise 

not in accordance with the law.” Iavorski v. U.S. I.N.S., 232 F.3d 124, 

128 (2d Cir. 2000) (internal quotation marks omitted). 

III.
14

Admittedly, the situation in Niz-Chavez appears to be

remarkably similar to the one presented here: Jiang too received a 

charging document that omitted the time and place of his relevant 

proceedings. He too then received subsequent notice of the time and 

place by separate document, and now similarly protests the BIA’s 

conclusion that the stop-time rule was triggered on February 15, 1995 

— the date on which he received the second notice. 

Jiang’s situation differs, however, from Niz-Chavez in one crucial 

respect: Jiang was charged with a pre-IIRIRA document, an OTSC, 

while the relevant charging document in Niz-Chavez was a postIIRIRA NTA. This difference is dispositive.

Niz-Chavez, along with Pereira before it, were cases of statutory 

interpretation; they interpreted and applied the requirements imposed 

on NTAs by the IIRIRA. On the basis of Section 1229(a)(1), the 

Supreme Court held first that an NTA sufficient to trigger the stoptime rule must “specif[y] . . . [t]he time and place at which the 
15

proceedings will be held,” Pereira, 138 S. Ct. at 2114 (quoting 8 U.S.C. 

§ 1229(a)(1)(G)(i)) (second alteration in original), and next that all the 

information specified by the statute must be contained in “a” single 

NTA document, Niz-Chavez, 141 S. Ct. at 1480 (quoting 8 U.S.C. § 

1229(a)(1)). The problem for Jiang is that his charging document — an 

OTSC — is a creature not of Section 1229(a)(1), but rather, of a 

completely separate statutory provision: the since-repealed Section 

1252b(a)(1). In other words, Niz-Chavez and Pereira are not controlling 

in his case.

Moreover, the statutory provisions describing what information 

pre-IIRIRA OTSCs (as opposed to NTAs) must include further belie 

Jiang’s argument that the OTSC he received was insufficient to trigger 

the stop-time rule. Unlike the IIRIRA’s NTA provisions, the older 

OTSC statutory provisions do not list the time and place of the 

proceedings as required information to be included in the OTSC. See 

8 U.S.C. § 1252b(a)(1) (1994) (listing the information to be included in 
16

an OTSC); see also Niz-Chavez, 141 S. Ct. at 1482 n.2 (“[E]ach caseinitiating document must contain the catalogue of information 

Congress has said the . . . respondent is entitled to receive in that 

document.”). To the contrary, the OTSC statute explicitly stated that 

in a “deportation proceeding[]” like that to which Jiang was subject 

when he first entered the United States, “written notice . . . of . . . the 

time and place at which the proceedings will be held” “shall be given 

. . . in the order to show cause or otherwise.” 8 U.S.C. § 1252b(a)(2) 

(1994) (emphasis added). In other words, the OTSC statute explicitly 

acknowledged the permissibility of giving an alien in deportation 

proceedings notice of the time and place of the hearing by separate 

document. 

The Supreme Court had acknowledged as much when it noted 

in Pereira that NTAs and OTSCs are “entirely different document[s],” 

and that unlike NTAs, “orders to show cause did not necessarily 

include time-and-place information.” 138 S. Ct. at 2117 n.9. And in 
17

holding that Niz-Chavez and Pereira do not render OTSCs insufficient 

to trigger the stop-time rule if they omit the date or place of the 

hearing, today we join a number of other courts that have reached the 

same conclusion. See Gonzalez-Rodriguez v. Wilkinson, 838 F. App’x 312, 

314 (9th Cir. 2021) (memorandum opinion); Perez-Perez v. Wilkinson, 988 

F.3d 371, 375 (7th Cir. 2021); Carrias-Mayorga v. Barr, 787 F. App’x 955, 

956 (9th Cir. 2019) (memorandum opinion); Bilek v. U.S. Att’y Gen., 793 

F. App’x 929, 933 n.1 (11th Cir. 2019) (per curiam). 

IV.

We note that in denying Jiang’s motion to reopen, the BIA 

erroneously concluded that “‘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,’” thus “‘trigger[ing] the stoptime rule’” and making him “[in]eligible for cancellation of removal.” 

In re Jiang, No. A 073 200 066 (B.I.A. May 30, 2109) (quoting Mendoza-
18

Hernandez, 27 I. & N. Dec. at 529 (internal quotation marks omitted)). 

The BIA’s reasoning is flawed. First, as a threshold matter, the BIA 

failed to distinguish between the type of charging document issued to 

Jiang in this case — a pre-IIRIRA OTSC — and the post-IIRIRA NTAs 

which were at the center of Pereira and Mendoza-Hernandez.

Additionally, the Supreme Court has since expressly rejected the BIA’s 

position as to the ability of a subsequent notice furnishing the time and 

place of hearing to cure an otherwise defective NTA such that the stoptime rule would be triggered, making clear, instead, that Section 

1229(a)(1) does not permit this type of piecemeal “notice-byinstallment.” See Niz-Chavez, 141 S. Ct. at 1479-80. 

Still, while the BIA’s reasoning was flawed, we agree with its 

ultimate conclusion: that Jiang’s motion to reopen was untimely and 

that, in any event, he is ineligible for cancellation-of-removal relief. 

Thus, notwithstanding the errors in the BIA’s reasoning, we conclude 

that remand would be futile and decline to prolong this litigation any 
19

further. See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 

(2d Cir. 2007) (“This Court will decline a remand as futile if we can 

confidently predict that the agency would reach the same decision 

absent the errors that were made.” (internal quotation marks 

omitted)). 

V.

In sum, we hold that unlike an NTA issued under the IIRIRA, a 

pre-IIRIRA OTSC need not have included time-and-place information 

to trigger the stop-time rule under 8 U.S.C. § 1229b(d)(1)(A), see supra, 

Op. at 8. 

We have considered all of Jiang’s remaining arguments and find 

them to be without merit. Accordingly, Jiang’s petition for review of 

the BIA’s May 30, 2019 decision is hereby DENIED. All pending 

motions and applications are also DENIED, and all stays are 

VACATED.