NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0078n.06

Case No. 19-3476

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BUN CCHAY CHEAT, 

Petitioner-Appellant,

v.

WILLIAM P. BARR, Attorney General,

Respondent-Appellee,

)

)

)

)

)

)

)

)

)

)

ON PETITION FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS

O P I N I O N

BEFORE: MERRITT, CLAY, and GRIFFIN, Circuit Judges. 

CLAY, Circuit Judge. Petitioner Bun Cchay Cheat, a noncitizen, appeals an order of the 

Board of Immigration Appeals (BIA), dated May 15, 2019, denying his motion to reopen removal 

proceedings. Cheat sought to reopen removal proceedings because the Notice to Appear that 

initiated proceedings against him in November 2009 was defective because it did not include the 

date and time of his hearing. Cheat argues that the Supreme Court’s decision in Pereira v. Sessions,

— U.S. —, 138 S. Ct. 2105 (2018), prevents the BIA from curing its defective Notice to Appear 

with a subsequent Notice of Hearing. However, in Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 

2019), we held precisely the opposite. Because this Court has already rejected the narrow legal 

ground that Cheat claims justifies reversing the BIA’s order, a point acknowledged by Cheat in his 

reply brief, we DENY Cheat’s petition for review. 
Case No. 19-3476, Cheat v. Barr

- 2 -

I. BACKGROUND

Petitioner Bun Cchay Cheat is a native and citizen of Cambodia. On August 21, 2001, he

entered the United States on a C1 visa as a nonimmigrant in transit. He was permitted to remain in 

the United States until September 28, 2002. He failed to leave by that time. However, it was not 

until November 2009, that the Department of Homeland Security (DHS) issued a Notice to Appear 

(NTA) to Cheat, thereby initiating removal proceedings against him. The NTA asserted that Cheat 

had sought to obtain permanent resident status via fraud or material misrepresentation. 

Importantly, the NTA did not specify a date or time for a removal hearing. This was rectified on 

November 13, 2009, when the Immigration Court sent Cheat a Notice of Hearing, directing him 

to appear on April 21, 2010. 

On that date, the Immigration Court sent Cheat another notice, this one informing him that 

he must appear on June 23, 2010 for a hearing. In response, Cheat denied that he was subject to 

removability based upon the grounds alleged in the NTA. On April 26, 2010, DHS amended the 

NTA to withdraw the fraud charge and add a charge that Cheat was subject to removal because he 

had remained in the United States longer than permitted by his visa. At the June 23 hearing, Cheat, 

through counsel, conceded that he was subject to removal. The Immigration Judge presiding over 

the hearing issued a removal order. Cheat did not appeal this order. 

Cheat filed his first motion to reopen with the Immigration Court on January 16, 2014. He

alleged that changed country conditions in Cambodia made Cheat eligible for asylum and 

withholding of removal. On March 31, 2014, the Immigration Court denied his motion to reopen. 

Cheat filed an appeal with the BIA, which the BIA dismissed on May 27, 2015. This Court 

subsequently denied Cheat’s petition for review of the BIA’s dismissal order. Cheat v. Lynch, No. 

15-3678 (6th Cir. Mar. 10, 2016) (order).
Case No. 19-3476, Cheat v. Barr

- 3 -

Cheat filed a second motion to reopen before the BIA on September 18, 2018. This motion 

was based upon the Supreme Court’s recent decision in Pereira v. Sessions. In it, Cheat argued 

that the stop-time rule was inapplicable because the NTA did not contain the date and time of his 

hearing. Cheat further contended that his motion should be considered timely because it was filed 

within ninety days of the Supreme Court’s decision in Pereira and so the statutory period for filing 

motions to reopen should be equitably tolled. 

On May 15, 2019, the BIA denied Cheat’s second motion to reopen. Rather than address 

Cheat’s equitable tolling argument, it rejected his motion on the merits. According to the BIA,

because Cheat was served with a Notice of Hearing before he was present in the United States for 

ten years, the arguably defective NTA was perfected. Therefore, the stop-time rule applied, and 

Cheat would be ineligible for cancellation of removal in any event. This timely petition for review 

followed. 

II. DISCUSSION

A. Standard of Review 

This Court reviews the denial of a motion to reopen for an abuse of discretion. Trujillo 

Diaz v. Sessions, 880 F.3d 244, 248 (6th Cir. 2018); Sako v. Gonzales, 434 F.3d 857, 863 (6th Cir. 

2006). However, questions of law involving immigration proceedings are reviewed de novo. 

Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006).

B. The Motion to Reopen 

The Attorney General may cancel the removal of a noncitizen who is inadmissible or 

deportable from the United States if the noncitizen establishes, inter alia, that she “has been 

physically present in the United States for a continuous period of not less than 10 years 

immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(1)(A). However, “any 
Case No. 19-3476, Cheat v. Barr

- 4 -

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) of this title.” 

8 U.S.C. § 1229b(d)(1). This latter provision is known as the “stop-time rule” and it presents the 

chief roadblock to Cheat’s motion to reopen. Because he was served with a Notice to Appear in 

2009—less than ten years after he entered the United States in 2001—it would seem to preclude 

his eligibility for cancellation of removal under § 1229b(b)(1)(A). In other words, the NTA, if 

valid, stopped the time from running before Cheat could satisfy the ten-year continuous presence 

requirement to be eligible for cancellation of removal. 

Cheat contends that the Supreme Court’s recent decision in Pereira v. Sessions breathes 

life into his motion. In Pereira, the Supreme Court held that “[a] putative notice to appear that fails 

to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to 

appear under section 1229(a),’ and so does not trigger the stop-time rule.” Id. at 2113–114. 

Because Cheat’s Notice to Appear indisputably did not include a date and time of his removal 

hearing, it would seem that it did not trigger the stop-time rule.1

Unfortunately for Cheat, this Court has already rejected his line of reasoning. Very 

recently, in Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019), we held that “written 

communications to a noncitizen in multiple components or installments may collectively provide 

all the information necessary to constitute ‘a notice to appear’ under 8 U.S.C. § 1229b(d).” Id. at 

201. As a result, “the government triggers the stop-time rule when it sends a noncitizen all the 

1 Cheat expressly does not challenge the Immigration Court’s jurisdiction over his case. As Cheat 

acknowledges, this Court has held that the failure to include the time and date of removal 

proceedings does not divest an Immigration Judge of jurisdiction over the removal proceedings. 

Hernandez-Perez v. Whitaker, 911 F.3d 305, 314–15 (6th Cir. 2018) (holding that “jurisdiction 

vests with the immigration court where, as here, the mandatory information about the time of the 

hearing . . . is provided in a Notice of Hearing issued after the NTA”). 
Case No. 19-3476, Cheat v. Barr

- 5 -

required categories of information under § 1229(a)(1)(A)-(G) through one or multiple written 

communications.” Id.

That is precisely what occurred in this case. The information contained in the November 

2009 NTA was incomplete, but the government cured this deficiency with its subsequent notice to 

appear indicating the date and time of Cheat’s hearing. And because this all occurred before Cheat 

was physically present in the United States for ten years, he is not eligible for cancellation of 

removal under 8 U.S.C. § 1229b(b)(1)(A). Garcia-Romo decided that this practice comports with 

the requirements of the stop-time rule. In fact, the petitioner in Garcia-Romo was in a situation 

virtually identical to Cheat’s. He received an NTA in February 2012 that did not include a date 

and time for his hearing, followed by a Notice of Hearing in April 2012 providing the missing 

information. Id. at 197. As discussed above, we rejected the petitioner’s claim that the stop-time 

rule was not triggered once the Notice of Hearing issued and identified the date and time of his 

hearing. 

Therefore, Garcia-Romo clearly controls our decision in the present case. For his part, 

Cheat recognizes that this recent precedent defeats his claim. In his reply brief he states, “Petitioner 

recognizes that the panel is bound by Garcia-Romo but is raising the issue to preserve it for further 

review.” Br. of Pet’r at 3.2 Petitioner does correctly observe that a circuit split now exists between 

this Court and the Ninth Circuit on this narrow issue of statutory interpretation. In Lopez v. Barr, 

925 F.3d 396 (9th Cir. 2019), the Ninth Circuit held that “a Notice to Appear that is defective 

under Pereira cannot be cured by a subsequent Notice of Hearing. The law does not permit 

multiple documents to collectively satisfy the requirements of a Notice to Appear.” Id. at 405. 

2 Petitioner also noted that his opening brief did not cite Garcia-Romo because we issued our 

opinion “after Petitioner filed his opening brief.” Br. of Pet’r at 1–2 n.1. This Court appreciates 

Petitioner’s candor in recognizing that our case law forecloses his claim. 
Case No. 19-3476, Cheat v. Barr

- 6 -

Whatever results are generated by “further review,” the law in the Sixth Circuit is currently 

clear and we are bound by Garcia-Romo. See Little v. BP Expl. & Oil Co., 265 F.3d 357, 362 (6th 

Cir 2001) (“[W]e are bound by Sixth Circuit precedent unless it is overruled by either our court 

sitting en banc or the Supreme Court.”) Because this Court has held that the government may 

perfect a defective NTA with a subsequent Notice of Hearing that specifies the date and time of a 

removal hearing, the BIA did not abuse its discretion in denying Cheat’s second motion to re-open.

III. CONCLUSION

For these reasons, we DENY Petitioner’s petition for review of the BIA order denying his 

second motion to reopen removal proceedings.