NAWIINI v. GARLAND (2021)

United States Court of Appeals, Fifth Circuit.2021-07-16No. No. 18-60650

Summary · law.co

Holding. The supplemental petition for review was granted in part and the case was remanded to the BIA for reconsideration in light of Niz-Chavez v. Garland; the petition for review and supplemental petition for review were denied in all other respects.

Colin Nawiini sought judicial review of two Board of Immigration Appeals decisions that denied his motions to reopen his removal case. The central issue involved whether a notice to appear (NTA) lacking the date and time of a hearing could be cured by a later separate notice of hearing, thereby triggering the statutory "stop-time" rule that affects eligibility for certain forms of relief. After the Supreme Court decided Niz-Chavez v. Garland, which required that an NTA contain all required information in a single document to trigger the stop-time rule, Nawiini's case was affected. The court determined that his NTA failed to meet the Niz-Chavez standard because it did not include all necessary information in one document.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a notice to appear lacking date and time of hearing can be cured by a separate notice of hearing to trigger the stop-time rule
Whether an NTA must contain all required information in a single document under Niz-Chavez v. Garland
Sufficiency of notice in removal proceedings

Procedural posture

Nawiini petitioned for review of a 2018 BIA decision denying his motion to reopen and filed a supplemental petition for review of a 2019 BIA decision denying his motion to reconsider and reopen.

Authorities cited

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Opinion · public domain

Colin Nawiini petitions for review of an August 16, 2018, Board of Immigration Appeals (BIA) decision denying his motion to reopen. He has also filed a supplemental petition for review of a November 19, 2019, BIA decision denying his subsequent motion to reconsider and reopen. The supplemental petition for review is granted in part, and the case is remanded to the BIA for consideration under Niz-Chavez v. Garland, ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021).

In this case, the BIA relied on Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520, 535 (BIA 2019), for the proposition that service of a notice of hearing containing the date and time of an aliens hearing cures a notice to appear (NTA) that lacks the date and time and triggers the 8 U.S.C. § 1229b(d)(1)(A) stop-time rule. On April 29, 2021, the Supreme Court released its opinion in Niz-Chavez v. Garland, ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021). In Niz-Chavez, the Supreme Court held that a NTA sufficient to trigger the stop-time rule must be a “single document containing all the information an individual needs to know about his removal hearing” specified in 8 U.S.C. § 1229(a)(1). 141 S. Ct. at 1478. Thus, under Niz-Chavez, a NTA sufficient to trigger the stop-time rule must be a single document containing “the nature of the proceedings against the alien, the legal authority for those proceedings, the fact that the alien may be represented by counsel, the time and place at which the proceedings will be held, and the consequences of failing to appear.” Id. at 1479 (emphasis added); see also § 1229(a)(1).

Under Niz-Chavez, Nawiinis NTA did not contain the information required to trigger the stop-time rule. 141 S. Ct. at 1479. Thus, the supplemental petition for review is granted as to the stop-time issue, and this matter is remanded to the BIA for consideration under Niz-Chavez. In all other respects, the petition for review and the supplemental petition for review are denied.

The supplemental petition for review is GRANTED IN PART. This matter is hereby REMANDED to the BIA. As to all remaining claims, we have reviewed the decisions of the BIA and the record, and the petition for review and the supplemental petition for review are DENIED.

FOOTNOTES

FOOTNOTE

Per Curiam:*

FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.