Acosta-Pena v. Barr

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
RODRIGO ACOSTA-PENA,

Petitioner,

v.

WILLIAM P. BARR, United States
Attorney General,

Respondent.

No. 19-9557
(Petition for Review)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and BACHARACH,
Circuit Judges.
_________________________________
This petition for review stemmed from the government’s effort to
remove Mr. Rodrigo Acosta-Pena, a Mexican citizen, based on his presence
in the United States without admission or parole. See 8 U.S.C.

*
Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit

July 22, 2020

Christopher M. Wolpert
Clerk of Court
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2

§ 1182(a)(6)(A)(i). He sought cancellation of removal, and an immigration
judge denied relief, finding that Mr. Acosta-Pena had not remained
physically present in the United States for the required ten-year period.
The Board of Immigration Appeals upheld the immigration judge’s
decision. Mr. Acosta-Pena petitions for review,
1
and we grant the petition.
As a nonpermanent resident, Mr. Acosta-Pena may be eligible for
cancellation of removal if he has “been physically present in the United
States for a continuous period of not less than 10 years immediately
preceding the date of [his cancellation] application.” 8 U.S.C.
§ 1229b(b)(1)(A). But under the so-called “stop-time” rule, the period of
continuous presence is “deemed to end . . . when the alien is served a
notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1)(A).
Mr. Acosta-Pena received a putative notice to appear. The notice
didn’t tell him the time or place of the removal hearing, but the
immigration court later supplied this information in a notice of hearing.
The Board of Immigration Appeals determined that this combination of
documents triggered the stop-time rule as of the date of the notice of
hearing (March 4, 2009). We recently rejected this view in
Banuelos-Galviz v. Barr, 953 F.3d 1176, 1184 (10th Cir. 2020), holding

1
Although we generally lack jurisdiction over administrative denial of
cancellation of removal, see 8 U.S.C. § 1252(a)(2)(B)(i), we retain
jurisdiction to review constitutional claims and questions of law. See
§ 1252(a)(2)(D).
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that “the stop-time rule is not triggered by the combination of an
incomplete notice to appear and a notice of hearing.”
2

Though the stop-time rule did not apply, Mr. Acosta-Pena must still
show that he remained continuously in the United States for at least ten
years when he applied for cancellation of removal. 8 U.S.C.
§ 1229b(b)(1)(A). He applied for cancellation of removal on April 5, 2011,
so he must show continuous presence in the United States since April 5,
2001.
Mr. Acosta-Pena left the United States in July 2001. But neither the
immigration judge nor the Board of Immigration Appeals decided how long
Mr. Acosta-Pena had stayed away. If he had stayed away for more than 90
days, his trip would have broken the period of continuous presence. 8
U.S.C. § 1229b(d)(2). The duration of his trip in July 2001 may thus
determine Mr. Acosta-Pena’s eligibility for cancellation of removal.
Because the Board erroneously relied on the stop-time rule, we grant
the petition for review and remand for further administrative proceedings.
On remand, the agency cannot apply the stop-time rule based on the
combination of the notice to appear and notice of hearing. Though the
stop-time rule does not apply, Mr. Acosta-Pena must still show continuous
presence in the United States in the ten-year period preceding his

2
The Board issued its decision before Banuelos-Galviz, so the Board
understandably relied on its own contrary precedent.
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application for cancellation of removal. The agency must determine
whether Mr. Acosta-Pena satisfied this requirement in the absence of the
stop-time rule.
Entered for the Court

Robert E. Bacharach
Circuit Judge
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