Ya Zhen Zhu v. MERRICK B. GARLAND,1 Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2020
Decided June 16, 2021
Before
DIANE S. SYKES, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 19-3346
YA ZHEN ZHU,
Petitioner,
v.
MERRICK B. GARLAND,1
Attorney General of the United States,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A077-353-787
O R D E R
Ya Zhen Zhu, a Chinese citizen, petitioned for review of an order of the Board of
Immigration Appeals denying her motion to reopen her removal proceedings. Eight
years after she was ordered removed, Zhu sought to reopen proceedings based on the
Supreme Court’s decision in Pereira v. Sessions, which required a Notice to Appear to
specify the time and place of an alien’s removal hearing to trigger what is known as the
1 Merrick B. Garland was substituted in place of William Barr while this matter
was on appeal.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 19-3346 Page 2
“stop-time rule.” 138 S. Ct. 2105, 2118 (2018). That rule prevents a noncitizen from
accruing additional continuous physical presence towards the 10 years required to be
able to apply for cancellation of removal after they have been served. Zhu argued that
she was never served with an NTA that complied with 8 U.S.C. § 1229(a)(1), so she
never stopped accruing continuous physical presence in the United States to apply for
cancellation of removal.
We held Zhu’s case in abeyance after the Supreme Court took up Niz-Chavez v.
Barr, No. 19-863, 2020 WL 3038288 (U.S. June 8, 2020), to resolve a post-Pereira circuit
split over whether a subsequent notice of hearing can cure a defective NTA. In
April 2021, the Supreme Court issued its decision in Niz-Chavez v. Garland, holding that
the government may not provide the required information “piecemeal” and must
instead issue an NTA in the form of “a single fully compliant document to trigger the
stop-time rule.” 141 S. Ct. 1474, 1479 (Apr. 29, 2021).
In its later position statement, the government argued that Niz-Chavez was not
fully dispositive of the issues before us. The government concedes that Zhu never
received a fully compliant NTA, but maintains that she forfeited any challenge to it by
not raising a timely objection during her initial removal proceedings. The government
points to our decision in Chen v. Barr, 960 F.3d 448, 451–52 (7th Cir. 2020), issued days
before the Court granted certiorari in Niz-Chavez, in which we concluded that a
petitioner surrendered any opportunity for relief by neither timely objecting to a
defective NTA nor showing excusable delay or prejudice. The government argues that
Zhu’s untimeliness was inexcusable because, long before Pereira, she could have
contested the statutory deficiencies in the NTA. Moreover, says the government, she
had not shown prejudice because proper notice would not have changed the outcome,
given that she—assisted by counsel— regularly attended all of her hearings throughout
removal proceedings that spanned nine years.
Zhu counters that Chen is distinguishable because the petitioner there neither
made a Pereira-like argument nor sought cancellation of removal. She also asserts that
the question of prejudice was not at issue in her case before the Board, that the Board
did not specify forfeiture as a reason for denying her motion, and that any evaluation of
prejudice would run afoul of SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943), which
prevents us from deciding the case on a ground the Board did not rely upon.
Chen controls this appeal. Like Chen, Zhu did not object to the defective NTA or
seek relief on this basis until after Pereira was decided and after her removal

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No. 19-3346 Page 3
proceedings had ended. By not timely objecting to the defective NTA, she forfeited this
argument and can obtain relief only if she can establish excusable delay and prejudice.
Meraz-Saucedo v. Rosen, 986 F.3d 676, 683 (7th Cir. 2021) (citing Chen, 960 F.3d at 451);
Ortiz-Santiago, 924 F.3d at 965. At oral argument, Zhu contended that her delay is
excusable because the Supreme Court decided Pereira only after her removal
proceedings had ended, but we have rejected that argument based on the availability of
a statutory challenge to § 1229(a)(1) that has existed for years. Meraz-Saucedo, 986 F.3d
at 683 (citing United States v. Manriquez-Alvarado, 953 F.3d 511, 513 (7th Cir. 2020)); Ortiz-
Santiago, 924 F.3d at 964. And any argument that Zhu was prejudiced by the defective
NTA is refuted by her regular attendance at each hearing, with counsel, during nearly a
decade of proceedings. Meraz-Saucedo, 986 F.3d at 684.
Lastly, with regard to Zhu’s contention that Chenery blocks us from deciding a
question on a ground that the Board did not mention, this too was decided in Chen.
There, we emphasized that a petitioner’s failure to raise an issue (e.g., a defective-notice
challenge or prejudice) to an agency furnishes a good reason to deny a petition for
judicial review and renders a Chenery-style remand unnecessary. See Chen, 960 F.3d at
451.
We therefore DENY the petition for review.

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