Gutierrez-Alm v. Garland

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 03-15-2023
  • Case #: 17-71012
  • Judge(s)/Court Below: Bennett, D.J. for the Court; Lee, C.J.: & Thomas C.J.
  • Full Text Opinion

In a transitional rules case, an immigrant's accrual of physical presence stops upon notice of an Order to Show Cause, even if the order does not list the time and place of the deportation proceedings.

Petitioner is a Nicaraguan citizen who challenged the Board of Immigration Appeals’ (“BIA”) decision denying cancellation of his removal and Convention Against Torture (“CAT”) protection claims.  Petitioner entered the United States without inspection in 1989 and received an Order to Show Cause (“OSC”) in 1993 that failed to document the time and place of his deportation proceedings. On appeal, Petitioner claimed he was eligible for a suspension of deportation because the OSC did not meet the "stop-time" rule requirements established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).  The Court held that the omission of time and place of deportation proceedings in an OSC is sufficient to initiate the stop-time rule in a transitional rules case. The Court reasoned that IIRIRA contains a “clear and unambiguous” statutory requirement that a Notice to Appear include time and place information to trigger the stop-time rule, but this fails to apply to an OSC, which is not mandated to include time and place of deportation proceedings. The Court affirmed the BIA’s finding that Petitioner was ineligible for a cancellation of removal.  Further, substantial evidence defeated Petitioner’s claims for CAT relief.  DENIED. 

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