Mejia-Padilla v. Garland, No. 20-1720 (7th Cir. 2021)
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Mejia, a citizen of Mexico, entered the U.S. without inspection in 2005. His children are U.S. citizens. In 2011, he was placed in removal proceedings. His notice to appear did not include the date and time of the initial immigration hearing, required by 8 U.S.C. 1229(a)(1)(G)(i). A follow-up notice provided that information. Mejia appeared for all of his hearings. An IJ granted Mejia voluntary departure. Mejia did not depart. ICE placed him under an order of supervision. Mejia has complied with that order and has remained in the U.S.
In 2018, the Supreme Court held (Pereira) that a notice to appear which fails to specify the time and place of a removal proceeding is insufficient to trigger the “stop-time” rule ending a non-citizen’s period of continuous presence in the United States. An undocumented person like Mejia must have 10 years of continuous presence in this country to become eligible for cancellation of removal. Mejia immediately sought to reopen the removal proceeding, reasoning that because the defective notice to appear did not trigger the stop-time rule, he had now accrued 10 years of continuous presence.
The IJ and BIA denied Mejia’s motions. The Seventh Circuit denied a petition for review. Mejia forfeited any objection to the deficiency in the notice to appear by not timely raising it in the removal proceeding and has not shown cause for forfeiture nor prejudice resulting from the defect in the notice.
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