     16-3943
     Rivadeneira Manosalvas v. Sessions
                                                                                       BIA
                                                                                  Straus, IJ
                                                                              A078 678 815
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the 27th
 4   day of July, two thousand eighteen.
 5
 6   PRESENT:
 7             DEBRA ANN LIVINGSTON,
 8             SUSAN L. CARNEY,
 9                  Circuit Judges,
10             EDWARD KORMAN,
11                  District Judge.
12   _____________________________________
13
14   MARIO BELFOR RIVADENEIRA
15   MANOSALVAS, AKA MISAEL GUTIERREZ
16   GARCIA, AKA MIGUEL GARCIA,
17             Petitioner,
18
19                     v.                                           16-3943
20
21   JEFFERSON B. SESSIONS III,
22   UNITED STATES ATTORNEY GENERAL,
23             Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                        Glenn L. Formica, Elyssa N. Williams,
27                                          Formica Williams, P.C., New Haven, CT.
28

      Judge Edward Korman, of the United States District Court for the
     Eastern District of New York, sitting by designation.
1    FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
2                                     Attorney General; Douglas E. Ginsburg,
3                                     Assistant Director; Jenny C. Lee,
4                                     Trial Attorney, Office of Immigration
5                                     Litigation, United States Department
6                                     of Justice, Washington, DC.
7
8           UPON DUE CONSIDERATION of this petition for review of a Board

9    of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

10   ADJUDGED, AND DECREED that the petition for review is GRANTED.

11          Petitioner        Mario      Belfor      Rivadeneira        Manosalvas

12   (“Rivadeneira”), a native and citizen of Ecuador, seeks review of

13   an October 27, 2016 decision of the BIA affirming a December 23,

14   2015   decision     of   an   Immigration    Judge   ordering    Rivadeneira’s

15   removal and denying his application for cancellation of removal.

16   In re Mario Belfor Rivadeneira Manosalvas, No. A 078 678 815

17   (B.I.A. Oct. 27, 2016), aff’g No. A 078 678 815 (Immig. Ct.

18   Hartford Dec. 23, 2015).         We assume the parties’ familiarity with

19   the underlying facts and procedural history in this case.

20          Rivadeneira received a charging document entitled “Notice to

21   Appear” in 2000 and was ordered removed in absentia in 2001 under

22   an alias, but never departed the United States. In 2015, he was

23   served with another charging document, also entitled “Notice to

24   Appear,” and sought cancellation of removal.                    An alien like

25   Rivadeneira may establish eligibility for cancellation of removal

26   if he can demonstrate, among other requirements, that he “has been

27   physically present in the United States for a continuous period of




                                            2
1    not less than 10 years immediately preceding the date of [his]

2    application.”       8 U.S.C. § 1229b(b)(1)(A).           However, under the

3    stop-time rule, “any period of continuous residence or continuous

4    physical presence in the United States shall be deemed to end . .

5    . when the alien is served a notice to appear under” 8 U.S.C.

6    § 1229(a).    Id. § 1229b(d)(1).           The agency denied cancellation,

7    reasoning that the service of Rivadeneira’s 2000 charging document

8    prevented Rivadeneira from accruing the required ten years of

9    continuous physical presence in the United States.

10          We retain jurisdiction to consider the question of law at

11   issue in this case: whether the 2000 charging document stopped

12   Rivadeneira’s accrual of physical presence for cancellation of

13   removal.      See   id.   §§     1252(a)(2)(B),   (D);    Barco-Sandoval     v.

14   Gonzales, 516 F.3d 35, 38-40 (2d Cir. 2008).                For the reasons

15   discussed below, we vacate and remand due to an intervening Supreme

16   Court decision that calls into question whether the stop-time rule

17   was triggered in 2000 in Rivadeneira’s case.                   See Pereira v.

18   Sessions, 138 S. Ct. 2105 (2018).

19          As noted above, the BIA’s conclusion that Rivadeneira was

20   ineligible for cancellation of removal rested on a determination

21   that   Rivadeneira’s      2000    charging    document   was    sufficient   to

22   trigger the stop-time rule.          See, e.g., J.A. at 5 (“[T]he Notice

23   to Appear terminated [Rivadeneira’s] continuous physical presence

24   in 2000.”).     The Government has produced a copy of Rivadeneira’s



                                            3
1    2000 charging document in its supplemental brief on appeal.1        The

2    charging document does not list a hearing date.2         In Pereira, the

3    Supreme Court held that service of a charging document will not

4    trigger   § 1229b(d)(1)’s   stop-time    rule   unless    the   charging

5    document includes a hearing date.       Pereira, 138 S. Ct. at 2113–

6    14.   Pereira expressly abrogated this Court’s precedent, which had

7    deferred to the BIA’s position that a charging document stops the

8    time even if it does not list a hearing date.            See id. & n.4;

9    Guaman-Yuqui v. Lynch, 786 F.3d 235, 238-41 (2d Cir. 2015) (per

10   curiam); Matter of Camarillo, 25 I. & N. Dec. 644, 651 (B.I.A.

11   2011).    Pereira also therefore implicitly overrode the BIA’s

12   determination that Rivadeneira’s 2000 charging document alone

13   triggered the stop-time rule.    The BIA’s decision must therefore

14   be vacated.3




     1We note that this document was not included in Rivadeneira’s
     Certified Administrative Record.     We will therefore assume
     arguendo, and without making a factual determination, that this
     document accurately represents Rivadeneira’s 2000 charging
     document.

     2 Incidentally, we note that Rivadeneira’s 2015 charging document
     does not appear to specify a hearing date either. See J.A. 360.
     3 Although Rivadeneira did not challenge the adequacy of his 2000

     charging document before the agency, his failure to exhaust is
     excused because our precedent at the time foreclosed his argument.
     See, e.g., Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d
     Cir. 2014) (“[A] party cannot be deemed to have waived objections
     or defenses which were not known to be available at the time they
     could first have been made.” (quoting Hawknet, Ltd. v. Overseas
     Shipping Agencies, 590 F.3d 87, 92 (2d Cir. 2009))).



                                      4
1            The Government contends that any defect in Rivadeneira’s 2000

2    charging document was cured by service of a subsequent hearing

3    notice.     See, e.g., Guamanrrigra v. Holder, 670 F.3d 404, 410–11

4    (2d Cir. 2012) (per curiam).     This issue was not raised before the

5    BIA, and we decline to address it in the first instance on appeal.

6    Accordingly, we remand for the BIA to consider, in light of

7    Pereira, whether and when the stop-time rule was triggered in

8    Rivadeneira’s proceedings.

9            For the foregoing reasons, the petition for review is GRANTED,

10   the BIA’s decision is VACATED, and the case is REMANDED to the BIA

11   for further proceedings consistent with this order.        Because we

12   have completed our review, Rivadeneira’s stay motion is DENIED as

13   moot.

14                                    FOR THE COURT:
15                                    Catherine O’Hagan Wolfe
16                                    Clerk of Court




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