NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0532n.06 No. 18-4169 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ROSHNI ISHVARBHAI PATEL, ) Oct 17, 2019 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) ) BEFORE: BOGGS, BATCHELDER, and DONALD, Circuit Judges. PER CURIAM. Roshni Ishvarbhai Patel petitions this court for review of an order of the Board of Immigration Appeals (“BIA”) denying her motions to reopen her removal proceedings sua sponte and to reconsider the denial of her prior motion to reopen. As set forth below, we DENY in part and DISMISS in part Patel’s petition for review. Patel, a native and citizen of India, entered the United States without inspection in August 2003 and was apprehended soon thereafter. Upon her apprehension, the Department of Homeland Security (“DHS”) personally served Patel with a notice to appear in removal proceedings, charging her with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled and ordering her to appear before an immigration judge in Detroit, Michigan, at a date and time “to be set.” Patel later filed a change-of-address form with the immigration court. On June 30, 2004, the immigration court mailed a notice of hearing to Patel’s updated address, informing her that a hearing had been scheduled for 9:00 a.m. on August No. 18-4169, Patel v. Barr 24, 2004, at the specified address of the immigration court in Detroit, Michigan. When Patel failed to appear for that hearing, the immigration judge ordered her removal to India. Nearly nine years later, Patel filed a motion to reopen her removal proceedings and rescind the in absentia removal order, asserting that she did not receive notice of the hearing. The immigration judge denied Patel’s motion. On appeal, the BIA agreed with the immigration judge that Patel had failed to present sufficient evidence to rebut the presumption of delivery that attaches to a hearing notice sent by regular mail. Almost four years after the BIA dismissed her appeal, Patel moved the BIA to reopen her removal proceedings sua sponte and remand the proceedings to the immigration court to allow her to file an application for a provisional unlawful-presence waiver. While Patel’s motion to reopen was pending, the Supreme Court decided Pereira v. Sessions, 138 S. Ct. 2105, 2110 (2018), holding that “[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under [8 U.S.C.] section 1229(a)’ and therefore does not trigger the stop-time rule” ending the noncitizen’s period of continuous physical presence in the United States for purposes of cancellation of removal. In light of Pereira, Patel filed a supplemental brief in support of her motion to reopen and a motion to reconsider the denial of her prior motion to reopen, asserting that jurisdiction never vested with the ...
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