NOT RECOMMENDED FOR PUBLICATION File Name: 21a0396n.06 Case No. 19-3476 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 23, 2021 BUN CCHAY CHEAT, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION MERRICK B. GARLAND, Attorney General, ) APPEALS Respondent. ) ) ORDER * BEFORE: CLAY and GRIFFIN, Circuit Judges. This case is before us on remand from the United States Supreme Court for further consideration in light of the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). On September 18, 2018, Petitioner Bun Cchay Cheat filed a motion to reopen removal proceedings based on the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), arguing that his Notice to Appear (“NTA”) for his removal hearing was defective because it did not include the date or time of the hearing, making the stop-time rule inapplicable. See 8 U.S.C. § 1229b(d)(1) (“[A]ny period of continuous residence or continuous physical presence in the United States shall be deemed to end . . . when the [noncitizen] is served a notice to appear under * The Honorable Gilbert S. Merritt, Circuit Judge was initially a member of this panel, but he has since assumed inactive senior status and did not participate in this decision. This decision is filed by a quorum of the panel pursuant to 28 U.S.C. § 43(d). Case No. 19-3476, Cheat v. Garland section 1229(a) of this title . . . .”). As a result, Cheat contended that he was eligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1) (allowing cancellation of removal for noncitizens who have “been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application”). We denied Cheat’s petition for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings, on the ground that his defective NTA was cured when the subsequent Notice of Hearing included the date and time he was required to appear before the immigration judge and triggered the stop-time rule, pursuant to our decision in Garcia- Romo v. Barr, 940 F.3d 192 (6th Cir. 2019). However, in Niz-Chavez, 141 S. Ct. 1474, the Supreme Court held that a NTA must contain all the information required under 8 U.S.C. § 1229(a) in a single document in order to trigger the stop-time rule, overruling Garcia-Romo. In the present case, because the NTA did not include the date or time of Cheat’s removal hearing, the stop-time rule did not apply, and the BIA and this Court erred in denying Cheat’s motion to reopen removal proceedings and petition for review, respectively, on that ground. Unlike in Niz-Chavez, the BIA in this case also found that the motion to reopen was time and number-barred, given that Cheat had failed to file the motion to reopen within 90 days of the BIA’s order affirming the …
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