FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Jeffrey B. Rubin, with whom Rubin Pomerleau P.C. was on
brief, for petitioner.
K. Pergolizzi, Trial Attorney, Office of Immigration
Litigation, with whom Bejamin C. Mizer, Acting Assistant
Attorney General, Civil Division, Kohsei Ugumori, Senior
Litigation Counsel, Office of Immigration Litigation, and
Jesse D. Lorenz, Trial Attorney, Office of Immigration
Litigation, were on brief, for respondent.
Lynch, Lipez, and Thompson, Circuit Judges.
Immigration and Nationality Act ("INA") gives the
Attorney General discretion to cancel the removal of a
non-permanent resident alien if the alien meets certain
criteria, including ten years of continuous physical presence
in the United States. 8 U.S.C. § 1229b(b)(1). Under the
"stop-time" rule, the alien's period of
continuous physical presence ends "when the alien is
served a notice to appear under section 1229(a)" of the
INA. Id. § 1229b(d)(1). In this case, we must
decide whether a notice to appear that does not contain the
date and time of the alien's initial hearing is
nonetheless effective to end the alien's period of
continuous physical presence. The Board of Immigration
Appeals ("BIA") answered this question
affirmatively in Matter of Camarillo, 25 I. & N.
Dec. 644 (B.I.A. 2011). The BIA applied that rule in this
the majority of circuit courts to address this issue, we
conclude that the BIA's decision in Camarillo is
entitled to Chevron deference. We deny the petition
Fonseca Pereira ("Pereira"), a native and citizen
of Brazil, was admitted to the United States in June 2000 as
a non-immigrant visitor authorized to stay until December 21,
2000. He overstayed his visa. In May 2006, less than six
years after Pereira entered the country, the Department of
Homeland Security ("DHS") personally served him
with a notice to appear. The notice did not specify the date
and time of his initial removal hearing, but instead ordered
him to appear before an Immigration Judge ("IJ") in
Boston "on a date to be set at a time to be set."
More than a year later, DHS filed the notice to appear with
the immigration court, and the court mailed Pereira a notice
setting his initial removal hearing for October 31, 2007 at
9:30 A.M. Because the notice was sent to Pereira's street
address on Martha's Vineyard rather than his post office
box, however, he never received it. When Pereira failed to
appear at the hearing, an IJ ordered him removed in absentia.
was not removed, however, and he remained in the country. In
March 2013, more than five years later, Pereira was arrested
for a motor vehicle violation and detained by DHS. Pereira
retained an attorney, who filed a motion to reopen his
removal proceedings, claiming that Pereira had never received
the October 2007 hearing notice. After an IJ allowed the
motion, Pereira conceded removability, but sought relief in
the form of cancellation of removal under 8 U.S.C. §
1229b(b)(1). Arguing that the notice to appear was
defective because it did not include the date and time of his
hearing, Pereira contended that it had not
"stopped" the continuous residency clock. He
asserted that he had instead continued to accrue time for the
purpose of § 1229b(b)(1) until he received a notice of
the hearing that occurred after his case was reopened in
pretermitted Pereira's application for cancellation of
removal, finding that Pereira could not establish the
requisite ten years of continuous physical presence, and
ordered him removed. Pereira appealed to the BIA. On appeal,
he conceded that Camarillo foreclosed his argument
that the stop-time rule did not cut off his period of
continuous physical presence until 2013, but argued that
Camarillo should be reconsidered and overruled. The
BIA declined to reconsider Camarillo and affirmed
the IJ's decision, holding that the notice to appear was
effective under the stop-time rule despite the missing
details concerning the date and time of his
hearing. Pereira timely filed a petition for review
with this court.
Standard of Review
"the BIA adopted and affirmed the IJ's ruling, and
discussed some of the bases for the IJ's opinion, we
review both the BIA's and IJ's opinions."
Idy v. Holder, 674 F.3d 111, 117
(1st Cir. 2012). Where, as here, the case presents a question
of statutory interpretation, we review the BIA's legal
conclusions de novo, but give "appropriate deference to
the agency's interpretation of the underlying statute in
accordance with administrative law principles."
Id. (quoting Gailius v.
INS, 147 F.3d 34, 43 (1st Cir. 1998)). Under
Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., we first look to the
statutory text to ascertain whether "Congress has
directly spoken to the precise question at issue." 467
U.S. 837, 842 (1984). If the statute addresses the question
at issue and is clear in its meaning, then we "must give
effect to the unambiguously expressed intent of
Congress." Id. at 842-43. If, however, the
statute is silent or ambiguous, we determine "whether
the agency's answer is based on a permissible
construction of the statute." Id. at 843. We
defer to an agency's construction of an ambiguous
statutory provision "unless it is 'arbitrary,
capricious, or manifestly contrary to the statute.'"
Saysana v. Gillen, 590 F.3d 7, 13
(1st Cir. 2009) (quoting Chevron, 467 U.S. at 844).
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