                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       July 22, 2020
                         FOR THE TENTH CIRCUIT
                         _________________________________         Christopher M. Wolpert
                                                                       Clerk of Court
    RODRIGO ACOSTA-PENA,

          Petitioner,

    v.                                                   No. 19-9557
                                                    (Petition for Review)
    WILLIAM P. BARR, United States
    Attorney General,

          Respondent.

                         _________________________________

                         ORDER AND JUDGMENT *
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and BACHARACH,
Circuit Judges.
                 _________________________________

         This petition for review stemmed from the government’s effort to

remove Mr. Rodrigo Acosta-Pena, a Mexican citizen, based on his presence

in the United States without admission or parole. See 8 U.S.C.




*
      Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
§ 1182(a)(6)(A)(i). He sought cancellation of removal, and an immigration

judge denied relief, finding that Mr. Acosta-Pena had not remained

physically present in the United States for the required ten-year period.

The Board of Immigration Appeals upheld the immigration judge’s

decision. Mr. Acosta-Pena petitions for review, 1 and we grant the petition.

     As a nonpermanent resident, Mr. Acosta-Pena may be eligible for

cancellation of removal if he has “been physically present in the United

States for a continuous period of not less than 10 years immediately

preceding the date of [his cancellation] application.” 8 U.S.C.

§ 1229b(b)(1)(A). But under the so-called “stop-time” rule, the period of

continuous presence is “deemed to end . . . when the alien is served a

notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1)(A).

     Mr. Acosta-Pena received a putative notice to appear. The notice

didn’t tell him the time or place of the removal hearing, but the

immigration court later supplied this information in a notice of hearing.

The Board of Immigration Appeals determined that this combination of

documents triggered the stop-time rule as of the date of the notice of

hearing (March 4, 2009). We recently rejected this view in

Banuelos-Galviz v. Barr, 953 F.3d 1176, 1184 (10th Cir. 2020), holding


1
      Although we generally lack jurisdiction over administrative denial of
cancellation of removal, see 8 U.S.C. § 1252(a)(2)(B)(i), we retain
jurisdiction to review constitutional claims and questions of law. See
§ 1252(a)(2)(D).
                                      2
that “the stop-time rule is not triggered by the combination of an

incomplete notice to appear and a notice of hearing.” 2

        Though the stop-time rule did not apply, Mr. Acosta-Pena must still

show that he remained continuously in the United States for at least ten

years when he applied for cancellation of removal. 8 U.S.C.

§ 1229b(b)(1)(A). He applied for cancellation of removal on April 5, 2011,

so he must show continuous presence in the United States since April 5,

2001.

        Mr. Acosta-Pena left the United States in July 2001. But neither the

immigration judge nor the Board of Immigration Appeals decided how long

Mr. Acosta-Pena had stayed away. If he had stayed away for more than 90

days, his trip would have broken the period of continuous presence. 8

U.S.C. § 1229b(d)(2). The duration of his trip in July 2001 may thus

determine Mr. Acosta-Pena’s eligibility for cancellation of removal.

        Because the Board erroneously relied on the stop-time rule, we grant

the petition for review and remand for further administrative proceedings.

On remand, the agency cannot apply the stop-time rule based on the

combination of the notice to appear and notice of hearing. Though the

stop-time rule does not apply, Mr. Acosta-Pena must still show continuous

presence in the United States in the ten-year period preceding his


2
     The Board issued its decision before Banuelos-Galviz, so the Board
understandably relied on its own contrary precedent.
                                       3
application for cancellation of removal. The agency must determine

whether Mr. Acosta-Pena satisfied this requirement in the absence of the

stop-time rule.


                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




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