UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ISAIAS JIMENEZ JUAREZ, Petitioner,

v. WILLIAM P. BARR, United States Attorney General, Respondent. No. 18-9577 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MATHESON , and EID , Circuit Judges.

________________ _________________ Isaías Jiménez Juárez, a native and citizen of Mexico, petitions for review of a final order of removal in which the Boar d of Immigration Appeals (“BIA”) denied his motion to remand. In that motion, Mr . Jiménez Juárez argued that he may be eligible to apply for cancellation of rem oval based on the Supreme Court’s decision in Pereira v. Sessions , 138 S. Ct. 2105 (2018).

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 14, 2020 Christopher M. Wolpert Clerk of Court2 We deny the Government’s motion to con tinue the abatement of this matter, and we lift the abatement. Exercising juri sdiction under 8 U.S.C. § 1252(a), we grant the petition for review and remand to the BI A for further proceedings consistent with this decision. I. BACKGROUND Mr. Jiménez Juárez first entered the United States without inspection in October 2006. In February 2014, the De partment of Homeland Security (“DHS”) instituted removal proceedings by serving a Notice to Appear (“NTA”) on him. Rather than specify the date and time of th e removal hearing, the NTA listed the date and time as “[t]o be set.” Admin. R. at 25. About two weeks later, DHS served Mr. Jiménez Juárez with a Notice of Heari ng (“NOH”) directing him to appear before the Immigration Judge (“IJ”) in September 2014. Mr. Jiménez Juárez admitted the alle gations in the NTA and conceded inadmissibility. He applied for asylum, re striction on removal, and protection under the Convention Against Torture (“CAT”). After the hearing, the IJ denied those requests and granted voluntar y departure. Mr. Jiménez Juárez appealed the IJ’s decision to the BIA. While the appeal was pending, the Supreme Court issued Pereira

. Pereira addressed the impact of a defici ent NTA on the “stop-time rule.” Noncitizens who are subject to removal pr oceedings and who ha ve accrued 10 years of continuous physical presence in the Unit ed States may be elig ible for cancellation3 of removal. See 8 U.S.C. § 1229b(b)(1). 1 Under the stop-time rule, however, the period of continuous pres ence ends when the governme nt serves an NTA. See id. § 1229b(d)(1)(A). Pereira held that when an NTA fails to designate the specific time and place of a removal proceeding, it doe s not trigger the stop-time rule for cancellation of removal. 138 S. Ct. at 2109-10. As noted, Mr. Jiménez Juárez’s NTA lacked that information. Based on Pereira , Mr. Jiménez Juárez asked the BI A to remand his case to the IJ to pursue cancellation of removal, argui ng he had accrued the requisite 10 years of continuous physical presence because his NTA was deficient. 2

1 More specifically, the A ttorney General may grant ca ncellation of removal to a noncitizen who is subject to removal fro m the United States if the noncitizen (A) has been physically present in the United States for a continuous period of not less than 10 years immediat ely preceding the date of such application; (B) has been a person of good mo ral character during such period; (C) has not been convicted of an o ffense under [8 U.S.C. §§] 1182(a)(2), 1227(a)(2), or 1227(a)(3) . . . ; and (D) establishes that removal would result in exceptional and extremely unusual hardship to [his] spouse, pare nt, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. 8 U.S.C. § 1229b(b)(1).

2 Mr. Jiménez Juárez has two U.S. citizen children who are the qualifying relatives for purposes of establishing elig ibility for cancellation of removal under § 1229b(b)(1)(D).4 The BIA concluded that the NTA and the NOH, in combination, vested the IJ with jurisdiction over the removal proceedings under In re Bermudez-Cota , 27 I. & N. Dec. 441 (BIA 2018). Though it did not specifically analyze Mr. Jiménez Juárez’s Pereira stop-time argument, it summarized a nd implicitly rejected the argument, concluding that Mr. Jiménez Juárez “cannot meet the 10-year continuous physical presence requirement for cancell ation of removal,” Admin. R. at 4. The BIA denied the motion to remand, upheld the IJ’s fi nding of removability, and dismissed the appeal. Mr. Jiménez Juárez’s petition for revi ew challenges only the BIA’s ruling on his motion to remand. II. DISCUSSION We review the BIA’s legal determinati ons de novo and its factual findings for substantial evidence. See Luevano v. Holder , 660 F.3d 1207, 1211 (10th Cir. 2011). “We review the denial of a motion to remand for an abuse of discretion.” Witjaksono v. Holder , 573 F.3d 968, 978-79 ( 10th Cir. 2009). The BI A abuses its discretion when it makes an error of law. Qiu v. Sessions , 870 F.3d 1200, 1202 (10th Cir. 2017). Mr. Jiménez Juárez argues the BIA abus ed its discretion b ecause its decision was contrary to Pereira . The Government counters that the BIA properly applied the stop-time rule. After briefing concluded in this appeal, we held that “the stop-time rule is not triggered by the combination of an incomple te notice to appear and a notice of hearing.” Banuelos-Galviz v. Barr , 953 F.3d 1176, 1184 (10th Cir. 2020).5 It “is triggered by one complete notice to appear rather than a combination of documents.” Id. at 1178. The Government acknow ledged in its recent status report that Banuelos-Galviz may be dispositive of the petition for review. See Resp’t Status Report at 2 (June 24, 2020). Although the BIA’s decision focused on a jurisdictional issue that the parties did not raise and failed to analyze the stop-time argument that Mr. Jiménez Juárez did raise, it ultim ately rejected his Pereira argument. Its conclusion that the stoptime rule applies to Mr. Jimé nez Juárez conflicts with Banuelos-Galviz and constitutes an abuse of discretion. III. CONCLUSION We lift the abatement of this matter, grant the petition for review, reverse the BIA’s decision denying the motion to remand, and remand to the BIA to consider Mr. Jiménez Juárez’s motion to remand in light of Banuelos-Galviz.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge