Lorenzo Lopez v. Barr, No. 15-72406 (9th Cir. 2019)
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A Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal. The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's conclusion that petitioner was ineligible for cancellation of removal. The IJ concluded that petitioner was admitted in February 2002 when he became a legal permanent resident (LPR) and that the March 2008 Notice to Appear terminated his residence period. Therefore, he was in the United States for only six years and one month, and was thus ineligible for cancellation of removal.
The panel held, however, that petitioner's Notice of Appear did not terminate his residence because it lacked time-and-place information, and the notice could not be cured by the subsequent Notice of Hearing that was sent to him. The panel explained that the law does not permit multiple documents to collectively satisfy the requirements of a Notice to Appear, and thus petitioner never received a valid Notice to Appear and his residency continued beyond 2008. Therefore, petitioner fulfilled the seven year requirement and was eligible for cancellation of removal.
Court Description: Immigration Granting Isaias Lorenzo Lopez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal. Lorenzo sought cancellation of removal, a form of relief from removal that requires that an applicant must, among other requirements, reside in the United States continuously for seven years after having been admitted in any status. However, under the “stop-time” rule, as relevant here, the service of a Notice to Appear under 8 U.S.C. § 1229(a) terminates an alien’s residence. In Lorenzo’s case, an immigration judge and the BIA found him ineligible for cancellation because his March 2008 Notice to Appear terminated his residence period before he had accrued the requisite seven years. In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Supreme Court held that a Notice to Appear, as defined in 8 U.S.C. § 1229(a), must contain the time and place at which removal proceedings will be held to trigger the stop-time rule. The panel concluded that Lorenzo’s Notice to Appear
The court issued a subsequent related opinion or order on January 23, 2020.
The court issued a subsequent related opinion or order on June 8, 2021.
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