USCA11 Case: 19-13764 Date Filed: 05/28/2021 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-13764 Non-Argument Calendar ________________________ Agency No. A098-240-462 DAVID ALEJANDRO GUERRERO-COSTILLA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (May 28, 2021) Before WILSON, MARTIN, and BRANCH, Circuit Judges. PER CURIAM: USCA11 Case: 19-13764 Date Filed: 05/28/2021 Page: 2 of 6 David Alejandro Guerrero-Costilla, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of his application for cancellation of removal under 8 U.S.C. § 1229b(b)(1).1 The BIA affirmed the IJ’s determination that Guerrero-Costilla failed to establish the required ten-year period of continuous physical presence in the United States for cancellation of removal based on the date he was served with his notice to appear (“NTA”). On appeal, Guerrero- Costilla argues that the NTA was defective because it did not designate the specific time and place of his initial removal hearing, and it therefore did not interrupt his accrual of continuous physical presence for purposes of cancellation of removal, citing Pereira v. Sessions, 138 S. Ct. 2105 (2018).2 In light of the Supreme 1 The Attorney General may cancel the removal of an inadmissible or removable alien and adjust the status of the alien to that of a lawful permanent resident if the alien: (A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of [certain specified offenses]; and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. 8 U.S.C. § 1229b(b)(1). 2 Guerrero-Costilla also argues that the BIA erred by affirming the IJ’s conclusion that he failed to establish exceptional and extremely unusual hardship. The BIA, however, expressly declined to address that issue. Therefore, we do not address Guerrero-Costilla’s argument, and we leave it to the BIA to address this claim in the first instance on remand. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 n.2 (11th Cir. 2006) (explaining that when the BIA does not address an IJ’s alternative holding, the alternative holding is not subject to review by this Court). 2 USCA11 Case: 19-13764 Date Filed: 05/28/2021 Page: 3 of 6 Court’s recent decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), Guerrero-Costilla is entitled to relief on this claim. Accordingly, we grant his petition, vacate the decision of the BIA, and remand the case for further proceedings.3 I. Background On July 15, 2009, the Department of Homeland Security served Guerrero-Costilla with an NTA charging him as being removable for being an alien present in the United …
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