Rigoberto Godoy-Rodriguez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIGOBERTO GODOY-RODRIGUEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-70236
Agency No. A200-691-021
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted and Submission Deferred June 4, 2020**
Resubmitted June 8, 2021
Pasadena, California
Before: LIPEZ,*** RAWLINSON, and N.R. SMITH, Circuit Judges.
Rigoberto Godoy-Rodriguez, a native and citizen of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (“BIA” or “the Board”)
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
FILED
JUN 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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finding him removable and ineligible for cancellation of removal and concluding
that he was afforded a full and fair hearing by the Immigration Judge (“IJ”). We
have jurisdiction under 8 U.S.C. § 1252. We reject Godoy-Rodriguez's claims
regarding his admission to the United States and due process violations at his
hearing, but we find that the Board erred in its application of the cancellation of
removal continuous presence requirement. Thus, we remand for further proceedings
to determine Godoy-Rodriguez's eligibility for cancellation of removal.
1. Substantial evidence supports the Board's conclusion that Godoy-
Rodriguez did not testify credibly or provide reliable documentary evidence about
his time, place, and manner of entry into the United States. Thus, because he failed
to establish by clear and convincing evidence that he was “present in the United
States pursuant to a prior admission,” see 8 U.S.C. § 1229a(c)(2)(B), the BIA did
not err in concluding that Godoy-Rodriguez is removable pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i).
2. Godoy-Rodriguez was not denied due process. Over the course of several
years, the IJ provided him a “full and fair hearing," see Cruz Rendon v. Holder, 603
F.3d 1104, 1109 (9th Cir. 2010), including a “reasonable opportunity . . . to present
evidence on [his] own behalf,” see 8 U.S.C. § 1229a(b)(4)(B). The IJ acted within
her statutory authority and did not abandon her role as an impartial factfinder when
she questioned Godoy-Rodriguez. See 8 U.S.C. § 1229a(b)(1).

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3. The Board erred when it concluded that Godoy-Rodriguez failed to
establish his continuous physical presence in the United States for at least ten years.
thereby making him ineligible for cancellation of removal pursuant to 8 U.S.C. §
1229b(b). The Board found that Godoy-Rodriguez's receipt of a Notice to Appear
(“NTA”) on May 24, 2010, triggered the stop-time rule for purposes of cancellation
of removal, see 8 U.S.C. § 1229b(d)(1), and that he therefore needed to establish his
presence in the United States for at least ten years prior to that date to establish his
eligibility for cancellation of removal. The NTA was deficient under Pereira v.
Sessions, 138 S. Ct. 2105 (2018), which the Supreme Court decided after Godoy-
Rodriguez filed this appeal. On June 8, 2010, Godoy-Rodriguez received a Notice
of Hearing containing the time-of-hearing information missing from his NTA. The
Supreme Court recently held that such a Notice of Hearing does not cure the
deficiency and thus does not trigger the stop-time rule either. Niz-Chavez v.
Garland, 141 S. Ct. 1474, 1480 (2021) (“To trigger the stop-time rule, the
government must serve ‘a’ notice containing all the information Congress has
specified. To an ordinary reader—both in 1996 and today—‘a’ notice would seem
to suggest just that: ‘a’ single document containing the required information, not a
mishmash of pieces with some assembly required.”).
4. As the parties agree, Niz-Chavez renders the Board's conclusion that
Godoy-Rodriguez failed to prove ten years of continuous physical presence invalid.

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The record indicates that Godoy-Rodriguez has been continuously present in the
United States for at least ten years during the pendency of his removal proceedings.
Thus, he has met the continuous presence requirement. We remand the case for the
agency to determine whether Godoy-Rodriguez has satisfied the remaining
eligibility requirements for cancellation of removal. The parties shall bear their own
costs on appeal.
PETITION DENIED in part, GRANTED in part, and REMANDED.

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