                                 PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 13-1084


GUSTAVO URBINA,

                  Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                  Respondent.


                                No. 13-1465


GUSTAVO URBINA,

                  Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                  Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   December 10, 2013                   Decided:   March 17, 2014


Before MOTZ, AGEE, and DIAZ, Circuit Judges.


Petition for review denied in part and dismissed in part by
published opinion. Judge Diaz wrote the opinion, in which Judge
Motz and Judge Agee joined.
ARGUED: Philip A. Eichorn, PHILIP EICHORN COMPANY, LPA,
Cleveland, Ohio, for Petitioner.     Jennifer Paisner Williams,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.    ON BRIEF: Stuart F. Delery, Acting Assistant
Attorney General, David V. Bernal, Assistant Director, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.




                               2
DIAZ, Circuit Judge:

       The Immigration and Nationality Act permits the Attorney

General    to    cancel       removal      of    certain      aliens.           See     8    U.S.C.

§ 1229b(b).        Although the Attorney General has discretion in

such    matters,       the    statute      requires         the    alien       to    have     “been

physically present in the United States for a continuous period

of not less than 10 years immediately preceding the date of such

application.”           Id.    § 1229b(b)(1)(A).                 In     this    case,       Gustavo

Urbina, a native and citizen of Nicaragua, argues that he has

met    that     requirement         and    is     thus      statutorily          eligible      for

cancellation of removal.              The Immigration Judge and the Board of

Immigration      Appeals        found     otherwise.              For    the     reasons      that

follow, we deny in part and dismiss in part Urbina’s petition

for review.



                                                I.

       Urbina entered the United States on October 4, 2000, on a

tourist visa.          He overstayed its expiration.                     In December 2009--

shortly       before     the       statute’s         ten     years       would       accrue--the

Department of Homeland Security served Urbina with a notice to

appear,    charging          him   with    having          entered      the     United      States

without       being     admitted      or        paroled,      pursuant          to     8    U.S.C.

§ 1182(a)(6)(A)(i).            The government apparently based that charge

on    Urbina’s    own    representations             in    his    2003,        2005,    and   2006

                                                 3
applications for temporary protected status, which asserted that

he had entered the country in 1998--an entry date the government

was unable to verify.                The notice to appear did not specify a

date and time for the hearing, but instead noted they were “to

be set.”    A.R. 184. 1

     Before an Immigration Judge, Urbina admitted that he was

not an American citizen.                  He did not argue that he was in the

United States legally, but asserted that he had entered legally

in October 2000.         Thus, he explained, the charge against him was

incorrect.       The IJ asked Urbina to file a copy of his passport

showing his October 2000 entry.                   Urbina, in turn, requested that

the government file an I-261 form at the next hearing: this form

would    swap    out    the    original      charge       on   the   notice       to    appear

(illegal     entry)      for        the    factually      correct     charge       (illegal

presence,       pursuant       to    8    U.S.C.    § 1227(a)(1)(B)).                  The    IJ

responded, “That’s why I’m going to have you file [a copy of the

passport],      so     the    Government      can   come       to   court   at     the       next

master calendar with an I-261 that you can plead to.”                            A.R. 99.

     Urbina      then        filed    a    motion    to    terminate        the    original

charge, attaching a copy of his passport and visa.                                     The IJ

denied the motion without a written opinion.                          When the parties


     1
          References to the “A.R.” cite to the Administrative
Record.    The “S.A.R.” is the Supplemental Administrative Record.



                                              4
next appeared before the IJ, DHS had not yet prepared the I-261

form.        Counsel for the government promised to “independently

verify” Urbina’s 2000 entry and then file the amended charge.

A.R.    106.         When   Urbina         produced    an    original       copy   of     the

passport,      however,        the      IJ   was   “satisfied       that     that’s      [the

October 2000 entry] in fact what the passport says.”                            A.R. 106.

The IJ continued the hearing on the understanding that DHS would

most likely amend the charge.

       DHS     did     amend      the      charge,    alleging       that     Urbina      was

removable as an alien who overstayed his period of authorized

presence.      In response, Urbina asserted that his original notice

to appear--which stopped the accrual of the requisite ten years’

continuous physical presence, see 8 U.S.C. § 1229b(d)(1)(A)--was

invalid.       Thus, he contended, only the newly substituted charge

stopped the clock, and it did so after he had reached the ten-

year mark, making him eligible for cancellation of removal.

       The    IJ     disagreed,      and     the   Board    of     Immigration     Appeals

dismissed Urbina’s appeal.                   Urbina filed a petition for review

in this court while simultaneously filing a motion to reconsider

with the BIA.            The BIA denied the motion to reconsider and

Urbina   petitioned         for      our     review   of    that    denial.        The    two

petitions for review are consolidated before us.




                                               5
                                               II.

      As he did before the IJ and the BIA, Urbina contends that

the original notice to appear was invalid and thus did not stop

the     accrual        of     the    ten-year        statutory       period.          In    the

alternative, he argues that the IJ erred in denying his motion

to terminate and in continuing the proceedings to allow DHS to

amend the charge against him.                    Urbina further asserts that DHS

did     not     have        the    authority        to    promulgate      the   regulation

permitting such an amendment.                    He also raises a procedural due

process claim and challenges the BIA’s denial of his motion to

reconsider.       We consider these arguments in turn.

                                               A.

      We begin with Urbina’s argument that his original notice to

appear was invalid.                 Urbina concedes that a valid notice to

appear        stops    the        accrual   of       continuous      physical         presence

required        for     cancellation           of        removal.         See     8     U.S.C.

§ 1229b(d)(1)(A) (explaining that the relevant time ends “when

the alien is served a notice to appear under section 1229(a) of

this title”).          Urbina argues, however, that his original notice

to appear was invalid and thus did not activate that stop-time

rule.    He primarily contends that the initial notice’s incorrect

charge renders it invalid.                  See id. § 1229(a)(1)(D) (requiring

specification          of     “[t]he    charges          against    the   alien       and   the

statutory provisions alleged to have been violated”).                                 He also

                                                6
observes that the notice did not include the specific date and

time of the hearing, as required by 8 U.S.C. § 1229(a)(1)(G)(i).

See id. (“In removal proceedings under section 1229a of this

title, written notice (in this section referred to as a ‘notice

to    appear’)     shall    be    given    in    person       to    the     alien    . . .

specifying the following: . . . [t]he time and place at which

the proceedings will be held.”).                      We find Urbina’s position

unpersuasive.

       After the IJ’s ruling, but before deciding Urbina’s appeal,

the BIA issued a precedent decision holding that the stop-time

rule does not require that the notice to appear include the date

and time of a hearing.            See In re Camarillo, 25 I. & N. Dec. 644

(B.I.A.    2011).      In    that    case,      the    BIA    determined       that   the

relevant statutory language is ambiguous: it says only that the

stop-time rule is triggered “when the alien is served a notice

to    appear   under   section       1229(a)     of    this    title.”         8    U.S.C.

§ 1229b(d)(1)(A).          The BIA reasoned that this provision could be

read in two ways.          It might require substantive compliance with

all requirements of § 1229(a)--the reading Urbina proposes here.

Or,   it   could    simply       specify   the   document          as   a   definitional

matter.    25 I. & N. Dec. at 647.

       The BIA resolved that ambiguity, deciding “that the key

phrase is ‘served a notice to appear.’”                      Id.        Thus, “the best

reading of the statute as a whole is that Congress intended the

                                           7
phrase ‘under section [1229](a)’ after ‘notice to appear’ to

specify the document the DHS must serve on the alien to trigger

the ‘stop-time’ rule.”            Id.     The BIA further observed that the

stop-time provision refers broadly to the entirety of § 1229(a),

which includes procedures for changing the date and time of a

hearing.    See id. at 647–48; see also 8 U.S.C. § 1229(a)(2).

      Finally,      the     BIA   reasoned        that   the     Act’s    legislative

history evinced a congressional intent to prevent aliens from

accruing    time     that     would      undermine       deportation      proceedings

already in progress.          See 25 I. & N. Dec. at 649–50.                  According

to the BIA, “[a] primary purpose of a notice to appear is to

inform an alien that the Government intends to have him or her

removed from the country, but the inclusion of the date and time

of the hearing is not necessary for the Government’s intention

in this regard to be conveyed.”             Id. at 650.

      We   analyze    the     BIA’s      interpretation        in     accordance      with

Chevron,    U.S.A.,       Inc.    v.    Natural    Resources        Defense     Council,

Inc., 467 U.S. 837 (1984).                 Under that precedent, “[i]f the

intent of Congress is clear, that is the end of the matter; for

the   court,   as    well    as    the   agency,     must      give    effect    to    the

unambiguously expressed intent of Congress.”                          Id. at 842–43.

If, however, “the statute is silent or ambiguous with respect to

the specific issue, the question for the court is whether the



                                           8
agency’s answer is based on a permissible construction of the

statute.”        Id. at 843.

       As   to    the    first       step,    we      agree       with    the     BIA     that     the

relevant statutory provision is ambiguous.                               Both the BIA’s and

Urbina’s    readings          are    plausible        in       light     of    the    text.       And

because the BIA’s interpretation in Camarillo is plausible--for

the reasons the BIA gave in that case--it merits deference under

the    second     step.        Thus,      despite         the    missing        date      and   time,

Urbina’s notice to appear was valid, and triggered the stop-time

rule.

       We   recognize         that     Camarillo           does    not        directly         address

whether its analysis would apply to incorrect charges as well as

missing     dates       and    times.        In       a   footnote,           however,     the    BIA

suggested that “there is no reason to conclude that Congress

would have intended an alien to be able to accrue time between

service     of     the      notice     to    appear        and     service           of   an    I-261

[providing the “charges against the alien”], which may occur

much later and, in fact, ‘[a]t any time during the proceeding.’”

25 I. & N. Dec. at 650 n.7 (quoting 8 C.F.R. § 1240.10(e)).

       We   defer      to     this   reasonable           interpretation,             although      we

note    that     the     notice      to     appear        in    this     case        substantially




                                                  9
complied with the requirements of § 1229(a). 2     This is hardly a

case, moreover, where DHS brought trumped-up charges for the

purpose of stopping the clock; indeed, DHS initially relied on

Urbina’s own statements as to when he entered the country.       We

do not decide today whether a more egregious case might warrant

a different result.

      We thus deny this portion of Urbina’s petition.

                                B.

      Urbina next argues that the IJ improperly denied his motion

to terminate the removal proceedings.    He believes that if the

IJ had terminated the case, rather than continuing it so DHS

could amend the charge against him, the stop-time rule would

have been triggered only by the new charge--and after the ten

years had accrued.    But in asking DHS to file the I-261 form,

the IJ did precisely what Urbina had originally requested.      See

A.R. 99 (“We would just be seeking then an I-261 that would

reflect the proper change.”).    Moreover, Urbina did not object

to the IJ’s decision to continue the case.       See A.R. 108, 110–

11.   We find no abuse of discretion on these facts.     See Onyeme

      2
       Except for the deficiencies Urbina complains of here, the
notice to appear included the elements required by § 1229(a),
such as the nature of the proceedings against Urbina, the legal
authority under which the proceedings were conducted, Urbina’s
right to be represented by counsel, and the consequences of
failure to provide current contact information.       Compare 8
U.S.C. § 1229(a)(1), with J.A. 185–86.



                                10
v.   U.S.    I.N.S.,          146   F.3d       227,       231    (4th       Cir.       1998)    (“[W]hen

reviewing the BIA’s decision upholding the IJ’s discretionary

action, we uphold the BIA’s decision unless it was made without

a    rational           explanation,            it         inexplicably                departed         from

established policies, or it rested on an impermissible basis,

e.g.,    invidious        discrimination                  against      a     particular            race    or

group.” (internal quotation marks and alterations omitted)).                                              We

therefore reject this claim of error.

                                                     C.

       Urbina further complains that the amended charge itself is

invalid.       In       particular,            he    asserts          that       DHS    did    not      have

authority to promulgate 8 C.F.R. § 1240.10(e), which permits DHS

to amend charges.              See id. (“At any time during the proceeding,

additional         or    substituted           charges          of     inadmissibility              and/or

deportability and/or factual allegations may be lodged by [DHS]

in     writing.”).             Urbina       reasons             that       the     Immigration            and

Nationality Act clearly provides for changes to the time and

date    of    proceedings           on     a    notice          to     appear,         see     8    U.S.C.

§ 1229(a)(2),           but    does      not        contain       a    similar          provision         for

amending charges.             Thus, he contends, the regulation is invalid.

       But “[b]ecause Congress expressly delegated to the Attorney

General      the    authority         to       establish          such       regulations           as     are

necessary for carrying out the INA, the challenged regulation

must    be    given       controlling               weight       unless          it    is     arbitrary,

                                                     11
capricious, or manifestly contrary to the statute.”                       Suisa v.

Holder, 609 F.3d 314, 319 (4th Cir. 2010) (internal quotation

marks,    citations,      and    alterations     omitted).         Although       the

statute    is   silent   regarding    the   amendment      of    charges,    it   is

sensible to allow DHS discretion to make changes as it acquires

more information.        Because the regulation is hardly arbitrary or

capricious, we deny this part of Urbina’s petition.

                                       D.

       Next, Urbina contends that the IJ violated his procedural

due    process    right     by    pretermitting      his        application       for

cancellation     of   removal.       This   is    prejudicial,       he     argues,

because of “open factual issues” regarding his eligibility for

relief: that is, whether the court should measure the ten years

from Urbina’s purported January 1998 entry date, rather than the

October 2000 entry.       Petitioner’s Br. at 33.

       Given Urbina’s earlier contention that DHS should not have

given the 1998 entry date any credence, this argument strikes us

as dubious at best.             In any event, we lack jurisdiction to

review it because Urbina failed to raise the question before the

BIA.     “A court may review a final order of removal only if . . .

the alien has exhausted all administrative remedies available to

the alien as of right . . . .”          8 U.S.C. § 1252(d)(1).            “We have

previously interpreted [§ 1252(d)(1)] as a jurisdictional bar.”

Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).                       Because

                                       12
Urbina could have raised this claim before the BIA but chose not

to, we dismiss this part of his petition.

                                       E.

      Finally, Urbina asks that we reverse the BIA’s denial of

his motion to reconsider.        We review such a denial for abuse of

discretion.    See Narine v. Holder, 559 F.3d 246, 249 (4th Cir.

2009); see also Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir.

2009) (“The BIA’s denial of a motion to reopen is reviewed with

extreme deference . . . .” (internal quotation marks omitted)).

“[W]e   can    reverse    only    if    the    Board       acted   arbitrarily,

irrationally, or contrary to law.”                  Narine, 559 F.3d at 249

(internal quotation marks and citations omitted).

      Urbina    focuses    on     the       BIA’s     assertion     that     “the

inaccuracies in the original [notice to appear] were based upon

the   respondent’s   fraudulent    statements         in   his   previous   sworn

applications for temporary protected status.”                S.A.R. 4.      Urbina

first complains that his statements were not in the record--

which is clearly incorrect.        See A.R. 133, 138, 142, 146.              More

colorably, he argues that the BIA overstepped its authority by

finding the statements “fraudulent,” as the IJ never made such a

finding itself.

      As a result, Urbina contends, the BIA has failed to follow

its own regulations.       See 8 C.F.R. § 1003.1(d)(3)(iv) (“Except

for taking administrative notice of commonly known facts such as

                                       13
current events or the contents of official documents, the Board

will       not   engage   in   factfinding       in   the     course   of    deciding

appeals.”).        This failure, he argues, creates reversible error

under the Accardi doctrine.               See United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260, 268 (1954) (objecting to the BIA’s

failure to follow its valid regulations).

       The BIA’s decision, however, makes clear that its reliance

on   Camarillo      serves     as   the   primary     basis   for   denial    of   the

motion for reconsideration.               Because we have determined that

deference to Camarillo is appropriate, we need not reach the

BIA’s alternative rationale regarding fraud. 3                  We thus deny this

portion of Urbina’s petition.



                                          III.

       For the foregoing reasons, Urbina’s petition is

                                                                    DENIED IN PART
                                                            AND DISMISSED IN PART.




       3
       At oral argument, the government explained that the BIA’s
characterizations of fraud would not be held against Urbina in
any future proceeding.   We have every expectation that DHS and
the BIA will abide by this representation.



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