CA3 on Stop-Time Rule, Chevron: Orozco-Velasquez v. Atty. Gen.

Orozco-Velasquez v. Atty. Gen., Mar. 11, 2016 - "We appointed pro bono amicus curiae counsel and directed amicus curiae and the parties to address in supplemental briefs whether (1) Camarillo is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., and (2) the BIA erred in applying Camarillo to bar Orozco-Velasquez’s application for cancellation of removal. We also requested that the parties discuss a recent Second Circuit decision, Guamanrrigra v. Holder, holding that, where an initial NTA contains errors and/or omissions that are subsequently corrected, the “stoptime” rule is triggered only upon perfection of notice. ... 

The BIA determined that failure to “include the specific date, time, or place of hearing” in a NTA has no bearing on a notice recipient’s removability. Because that  conclusion conflicts with the INA’s plain text, it is not entitled to Chevron deference. ... 

To the extent that the government served the second NTA and Notice of Hearing pursuant to § 1229(a)(2), it did so too late to affect OrozcoVelasquez’s eligibility for cancellation of removal. By the time he was served with the latter notices, Orozco-Velasquez had resided in the United States continuously for more than eleven years. As the “stop-time” rule does not apply to such tardy service, Orozco-Velasquez was entitled to apply for cancellation of removal.

A Notice to Appear is not meant to be enigmatic. Its purpose is to provide an alien with notice—of the charges against him and the basic contours of the proceedings to come. During the first nine and a half years of his continuous residence in the United States, Orozco-Velasquez was given no notice at all. Mere months before the ten-year mark of “stop-time” significance, he received an NTA omitting fundamental, statutorily required information and misinforming him of the proceedings’ location. ... 

The BIA has permitted the government’s countertextual mode of providing notice. Taken to its logical conclusion, the agency’s approach might treat even a “notice to appear” containing no information whatsoever as a “stoptime” trigger, permitting the government to fill in the blanks (or not) at some unknown time in the future. We believe such an approach contradicts the plain text of the INA’s “stoptime” and NTA provisions. Therefore, we will not defer to an interpretation of the INA that would omit the requirement that full notice be provided to non-citizens facing such critical proceedings.

For the foregoing reasons, we will grant the petition for review, vacate the BIA’s order dismissing the petitioner’s appeal, and remand this case to the BIA with instructions to remand it to the Immigration Court to consider Orozco-Velasquez’s application for cancellation of removal."

[Hats way off to appointed pro bono counsel Stuart T. Steinberg and Ryan M. Moore, and Amanda Johnson, who argued.]