USCA11 Case: 19-13578 Date Filed: 01/21/2022 Page: 1 of 5 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 19-13578 ____________________ DANILO RIGOBERTO ANDRADE-RODRIGUEZ, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A089-094-246 ____________________ USCA11 Case: 19-13578 Date Filed: 01/21/2022 Page: 2 of 5 2 Opinion of the Court 19-13578 Before NEWSOM, BRANCH, and BRASHER, Circuit Judges. PER CURIAM: Danilo Rigoberto Andrade-Rodriguez petitions this Court for review of the Board of Immigration Appeals’ order denying his motion to reopen removal proceedings. After review, and with the benefit of oral argument, we grant the petition, vacate the Board’s decision, and remand for further proceedings. I. An immigration judge ordered Andrade-Rodriguez re- moved in 2014. His motion to reopen, filed over four years after his removal order became final, contended that he had become eligible for cancellation of removal due to his continuous presence in the United States. See 8 U.S.C. § 1229b(b)(1)(A). Acknowledging that the motion was very late, see id. § 1229a(c)(7)(C)(i) (requiring that a motion to reopen be filed within 90 days of the final order of re- moval), he contended that the filing deadline was either equitably tolled by extraordinary circumstances or, alternatively, that the Board should sua sponte reopen his proceedings due to a funda- mental change in law. The allegedly extraordinary circumstance was the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Nor- mally, an alien ceases to accrue time toward eligibility for cancella- tion when he is served with a notice to appear. 8 U.S.C. § 1229b(d)(1). But Pereira held that a notice to appear fails to trigger this so-called “stop-time” rule if it does not contain either the time USCA11 Case: 19-13578 Date Filed: 01/21/2022 Page: 3 of 5 19-13578 Opinion of the Court 3 or place of the removal proceedings against the alien. 138 S. Ct. at 2114; see 8 U.S.C. § 1229(a)(1)(G)(i) (containing the place-and-time requirement). Andrade-Rodriguez’s notice to appear indicated that the time and date of his removal proceedings would “be set” later. Thus, he moved for reopening, contending that his time toward eligibility for cancellation was still accruing. The Board appeared to deny the motion based on its under- standing of Pereira at the time. It reasoned that any defect in the notice to appear was cured by a later notice of hearing that con- tained the time and place of the proceedings. Concerning the time- liness of Andrade-Rodriguez’s motion, the Board was “not per- suaded” that equitable-tolling was warranted. And the Board ex- plained that Andrade-Rodriguez was not eligible for cancellation of removal under Pereira, “[i]n any event.” However, after the Board’s decision, and while this appeal was pending, the Supreme Court decided Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). That decision clarified that a defective notice to appear is not cured by a later mailing containing information omitted from the initial notice. Id. …
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