                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 17 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARCOS ORDAZ-GONZALEZ,                           No. 08-72639

              Petitioner,                        Agency No. A077-076-421

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



MARCOS ORDAZ-GONZALEZ,                           No. 08-75051

              Petitioner,                        Agency No. A077-076-421

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                        Argued and Submitted June 3, 2013
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TROTT and W. FLETCHER, Circuit Judges, and STEIN, District Judge.**

      An Immigration Judge (“IJ”) denied Marcos Ordaz-Gonzalez’s (“Ordaz”)

application for cancellation of removal and ordered him removed. Ordaz appealed

to the Board of Immigration Appeals (“BIA”), which dismissed his appeal and

denied his subsequent motion to reconsider. Ordaz now petitions for review of

those BIA orders, and we have jurisdiction pursuant to 8 U.S.C. § 1252(a).

Because Ordaz and the government both agree that the BIA should reconsider his

arguments in light of intervening case law, we remand to the BIA without

addressing the merits.

      The IJ found Ordaz ineligible for cancellation because he had not accrued

ten years of continuous physical presence in the United States, as required by 8

U.S.C. § 1229b(b)(1)(A), and the BIA adopted the IJ’s decision. The IJ found that

Ordaz began accruing physical presence time in 1990, but stopped accruing time

pursuant to the so-called “stop-time rule” when he was served a notice to appear

(“NTA”) in 1998. See 8 U.S.C. § 1229b(d)(1). The stop-time rule provides that

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

appear under [8 U.S.C. §] 1229(a).” Id. Ordaz claims that service of the 1998 NTA



       **
             The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.

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did not end his presence pursuant to the stop-time rule because that rule is

triggered only by an NTA that (1) is the charging document for the removal

proceedings and (2) contains the information specified in 8 U.S.C. § 1229(a)(1).

      For support, Ordaz points to In re Cisneros-Gonzalez, 23 I. & N. Dec. 668

(BIA 2004) (en banc), and Garcia-Ramirez v. Gonzales, 423 F.3d 935, 937 n.3 (9th

Cir. 2005) (per curiam). In Cisneros-Gonzalez, the BIA “conclude[d] that the

‘notice to appear’ referred to in [the stop-time rule] pertains only to the charging

document served in the proceedings in which the alien applies for cancellation of

removal, and not to charging documents served on the alien in prior proceedings.”

23 I. & N. Dec. at 672. Because the government proceeded below on a different

NTA that was served in 2004 and had never filed the 1998 NTA with the

immigration court, Ordaz argues that the 1998 NTA could not have triggered the

stop-time rule.

      In Garcia-Ramirez, this Court observed that an alien’s continuous physical

presence terminated not when he was served an NTA but when he received a

subsequent notice that specified the hearing time and location. 423 F.3d at 937 n.3

(citing 8 U.S.C. § 1229(a)(1)). Ordaz contends that because the 1998 NTA

similarly lacked the hearing time and location that section 1229(a)(1)(G)(i)

requires, and because he was never notified of a hearing on his 1998 NTA, that


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NTA was never served “under section 1229(a)” within the meaning of the stop-

time rule. See 8 U.S.C. § 1229b(d)(1) (emphasis added). Thus, Ordaz argues, both

Cisneros-Gonzalez and Garcia-Ramirez support his claim that he continued to

accrue time after service of the 1998 NTA and that the IJ therefore erred in finding

him statutorily ineligible for cancellation of removal based on the 1998 NTA.

      The Court declines to consider the merits of Ordaz’s claim because the

parties agreed at oral argument that the Court should remand to the BIA to consider

both of these arguments in light of developments in the law while this appeal was

pending. Most notably, the BIA in 2011 found the stop-time rule ambiguous and

invoked Chevron deference to construe the statute. See Matter of Camarillo, 25 I.

& N. Dec. 644, 651 (BIA 2011) (citing Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984)). Under Camarillo, presence is deemed to end

when an alien is served an NTA even if the NTA lacks the hearing time and

location—at least if that information is later provided and the NTA is the operative

charging document in the removal proceedings. Id. at 652; but cf. Guamanrrigra v.

Holder, 670 F.3d 404, 410 (2d Cir. 2012) (per curiam) (deeming presence to end

not when NTA lacking hearing details was served, but when subsequent hearing

notice was served).




                                          4
      Accordingly, we grant the petition for review of the dismissal of Ordaz’s

appeal, No. 08-72639, and remand to the BIA for reconsideration. Because we

grant that petition, we need not address the BIA’s denial of his motion to

reconsider the dismissal of that appeal. Thus, we dismiss petition No. 08-75051 as

moot. See Moran-Enriquez v. INS, 884 F.2d 420, 423 n.2 (9th Cir. 1989).

      Petition for review No. 08-72639 is GRANTED. The May 29, 2008 order of

the BIA is therefore VACATED, and the case REMANDED. Petition for review

No. 08-75051 is DISMISSED as moot.




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