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Guaman-Yuqui v. Lynch

United States Court of Appeals, Second Circuit

May 19, 2015

KLEVER BOLIVAR GUAMAN-YUQUI, Petitioner,
v.
LORETTA E. LYNCH, United States Attorney General, Respondent. [*]

Argued May 6, 2015.

Page 236

Petitioner seeks review of an order of the Board of Immigration Appeals determining that his receipt of a notice to appear that failed to specify the date and time of his initial hearing sufficed to trigger the stop-time rule under 8 U.S.C. § 1229b(d)(1). Because the BIA's determination that a notice to appear need not include the date and time of the initial hearing in order to trigger the stop-time rule is a permissible construction of the Immigration and Nationality Act, the petition for review is DENIED.

MICHAEL P. DIRAIMONDO (Marialaina L. Masi and Stacy A. Huber, on the brief), DiRaimondo & Masi, LLP, Melville, New York, for Petitioner Klever Bolivar Guaman-Yuqui.

MELISSA KATHERINE LOTT, Trial Attorney (Leslie McKay, Assistant Director, Stuart F. Delery, Assistant Attorney General, and M. Jocelyn Lopez Wright, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent Loretta E. Lynch, United States Attorney General.

Before: LEVAL, LYNCH, and LOHIER, Circuit Judges.

OPINION

Page 237

Per Curiam:

Klever Bolivar Guaman-Yuqui (" Guaman" ) seeks review of an order of the Board of Immigration Appeals (" BIA" ) determining that his receipt, within ten years of his entry into the United States, of a notice to appear that failed to specify the date and time of his initial hearing sufficed to trigger the stop-time rule under 8 U.S.C. § 1229b(d)(1). Because the BIA's determination that a notice to appear need not include the date and time of the initial hearing to trigger the stop-time rule is a permissible construction of the Immigration and Nationality Act (" INA" ) entitled to Chevron deference from this Court, we deny the petition for review.

BACKGROUND

Guaman is a native and citizen of Ecuador who entered the United States without inspection on January 14, 2001. On March 15, 2010, agents of the Department of Homeland Security (" DHS" ) personally served Guaman with a notice to appear charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. The notice indicated that Guaman was to appear before an Immigration Judge " on a date to be set at a time to be set."

On April 30, 2010, the Immigration Court attempted to mail Guaman a notice of hearing. Guaman did not appear at the proceedings and was ordered removed in absentia. Several months later, Guaman filed a motion to reopen, stating that he never received notice of the hearing. Based on evidence that the notice had been mailed to an incorrect address and returned as undeliverable, the BIA reopened Guaman's proceedings. In September of 2011, more than ten years after Guaman's entry, the Immigration Court served Guaman with a new notice of hearing providing a date and time for his appearance.

At a series of subsequent hearings held before an Immigration Judge (" IJ" ), Guaman applied for cancellation of removal under 8 U.S.C. § 1229b, presenting several witnesses to testify that his removal to Ecuador would cause undue hardship to his parents, both lawful permanent residents. At the conclusion of the proceedings, the IJ denied Guaman's application without reaching the merits of his hardship claim, finding that Guaman was ineligible for relief because he had failed to establish ten years of continuous physical presence in the United States. Because Guaman had entered the United States on January 14, 2001, had received the notice to appear on March 15, 2010, and had been mailed a notice of hearing on April 30, 2010, the IJ concluded that the stop-time rule of 8 U.S.C. § 1229b(d)(1), described more fully below, took effect in April 2010 and prevented him from satisfying the ten?year continuous residence requirement.

Guaman appealed the IJ?s decision to the BIA, which dismissed his appeal. Departing slightly from the IJ's reasoning, the BIA concluded that its decision in Matter of Camarillo,25 I& N Dec. 644 (BIA 2011), established that ...


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