Filed: Jul. 27, 2018
Latest Update: Mar. 03, 2020
Summary: 16-3943 Rivadeneira Manosalvas v. Sessions BIA Straus, IJ A078 678 815 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DAT
Summary: 16-3943 Rivadeneira Manosalvas v. Sessions BIA Straus, IJ A078 678 815 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA..
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16-3943
Rivadeneira Manosalvas v. Sessions
BIA
Straus, IJ
A078 678 815
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the 27th
4 day of July, two thousand eighteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 SUSAN L. CARNEY,
9 Circuit Judges,
10 EDWARD KORMAN,
11 District Judge.
12 _____________________________________
13
14 MARIO BELFOR RIVADENEIRA
15 MANOSALVAS, AKA MISAEL GUTIERREZ
16 GARCIA, AKA MIGUEL GARCIA,
17 Petitioner,
18
19 v. 16-3943
20
21 JEFFERSON B. SESSIONS III,
22 UNITED STATES ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Glenn L. Formica, Elyssa N. Williams,
27 Formica Williams, P.C., New Haven, CT.
28
Judge Edward Korman, of the United States District Court for the
Eastern District of New York, sitting by designation.
1 FOR RESPONDENT: Chad A. Readler, Acting Assistant
2 Attorney General; Douglas E. Ginsburg,
3 Assistant Director; Jenny C. Lee,
4 Trial Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, DC.
7
8 UPON DUE CONSIDERATION of this petition for review of a Board
9 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
10 ADJUDGED, AND DECREED that the petition for review is GRANTED.
11 Petitioner Mario Belfor Rivadeneira Manosalvas
12 (“Rivadeneira”), a native and citizen of Ecuador, seeks review of
13 an October 27, 2016 decision of the BIA affirming a December 23,
14 2015 decision of an Immigration Judge ordering Rivadeneira’s
15 removal and denying his application for cancellation of removal.
16 In re Mario Belfor Rivadeneira Manosalvas, No. A 078 678 815
17 (B.I.A. Oct. 27, 2016), aff’g No. A 078 678 815 (Immig. Ct.
18 Hartford Dec. 23, 2015). We assume the parties’ familiarity with
19 the underlying facts and procedural history in this case.
20 Rivadeneira received a charging document entitled “Notice to
21 Appear” in 2000 and was ordered removed in absentia in 2001 under
22 an alias, but never departed the United States. In 2015, he was
23 served with another charging document, also entitled “Notice to
24 Appear,” and sought cancellation of removal. An alien like
25 Rivadeneira may establish eligibility for cancellation of removal
26 if he can demonstrate, among other requirements, that he “has been
27 physically present in the United States for a continuous period of
2
1 not less than 10 years immediately preceding the date of [his]
2 application.” 8 U.S.C. § 1229b(b)(1)(A). However, under the
3 stop-time rule, “any period of continuous residence or continuous
4 physical presence in the United States shall be deemed to end . .
5 . when the alien is served a notice to appear under” 8 U.S.C.
6 § 1229(a). Id. § 1229b(d)(1). The agency denied cancellation,
7 reasoning that the service of Rivadeneira’s 2000 charging document
8 prevented Rivadeneira from accruing the required ten years of
9 continuous physical presence in the United States.
10 We retain jurisdiction to consider the question of law at
11 issue in this case: whether the 2000 charging document stopped
12 Rivadeneira’s accrual of physical presence for cancellation of
13 removal. See
id. §§ 1252(a)(2)(B), (D); Barco-Sandoval v.
14 Gonzales,
516 F.3d 35, 38-40 (2d Cir. 2008). For the reasons
15 discussed below, we vacate and remand due to an intervening Supreme
16 Court decision that calls into question whether the stop-time rule
17 was triggered in 2000 in Rivadeneira’s case. See Pereira v.
18 Sessions,
138 S. Ct. 2105 (2018).
19 As noted above, the BIA’s conclusion that Rivadeneira was
20 ineligible for cancellation of removal rested on a determination
21 that Rivadeneira’s 2000 charging document was sufficient to
22 trigger the stop-time rule. See, e.g., J.A. at 5 (“[T]he Notice
23 to Appear terminated [Rivadeneira’s] continuous physical presence
24 in 2000.”). The Government has produced a copy of Rivadeneira’s
3
1 2000 charging document in its supplemental brief on appeal.1 The
2 charging document does not list a hearing date.2 In Pereira, the
3 Supreme Court held that service of a charging document will not
4 trigger § 1229b(d)(1)’s stop-time rule unless the charging
5 document includes a hearing date. Pereira, 138 S. Ct. at 2113–
6 14. Pereira expressly abrogated this Court’s precedent, which had
7 deferred to the BIA’s position that a charging document stops the
8 time even if it does not list a hearing date. See
id. & n.4;
9 Guaman-Yuqui v. Lynch,
786 F.3d 235, 238-41 (2d Cir. 2015) (per
10 curiam); Matter of Camarillo, 25 I. & N. Dec. 644, 651 (B.I.A.
11 2011). Pereira also therefore implicitly overrode the BIA’s
12 determination that Rivadeneira’s 2000 charging document alone
13 triggered the stop-time rule. The BIA’s decision must therefore
14 be vacated.3
1We note that this document was not included in Rivadeneira’s
Certified Administrative Record. We will therefore assume
arguendo, and without making a factual determination, that this
document accurately represents Rivadeneira’s 2000 charging
document.
2 Incidentally, we note that Rivadeneira’s 2015 charging document
does not appear to specify a hearing date either. See J.A. 360.
3 Although Rivadeneira did not challenge the adequacy of his 2000
charging document before the agency, his failure to exhaust is
excused because our precedent at the time foreclosed his argument.
See, e.g., Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d
Cir. 2014) (“[A] party cannot be deemed to have waived objections
or defenses which were not known to be available at the time they
could first have been made.” (quoting Hawknet, Ltd. v. Overseas
Shipping Agencies, 590 F.3d 87, 92 (2d Cir. 2009))).
4
1 The Government contends that any defect in Rivadeneira’s 2000
2 charging document was cured by service of a subsequent hearing
3 notice. See, e.g., Guamanrrigra v. Holder, 670 F.3d 404, 410–11
4 (2d Cir. 2012) (per curiam). This issue was not raised before the
5 BIA, and we decline to address it in the first instance on appeal.
6 Accordingly, we remand for the BIA to consider, in light of
7 Pereira, whether and when the stop-time rule was triggered in
8 Rivadeneira’s proceedings.
9 For the foregoing reasons, the petition for review is GRANTED,
10 the BIA’s decision is VACATED, and the case is REMANDED to the BIA
11 for further proceedings consistent with this order. Because we
12 have completed our review, Rivadeneira’s stay motion is DENIED as
13 moot.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe
16 Clerk of Court
5
