NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 20-3543 ___________ EDYN DUARTE-FOLGAR, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ________________ On Petition for Review of a Final Order Of the Board of Immigration Appeals (BIA-1: A205-986-669) Immigration Judge: Steven A. Morley ________________ Submitted Under Third Circuit L.A.R. 34.1(a) September 27, 2021 Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges (Opinion filed: September 30, 2021) ___________ OPINION * ___________ AMBRO, Circuit Judge An Immigration Judge (IJ) determined that Edyn Duarte-Folgar was ineligible for cancellation of removal, denied his request for a continuance, and ordered him removed to his home country of Guatemala. While his appeal was pending before the Board of Immigration Appeals, we issued Guadalupe v. Att’y Gen., 951 F.3d 161 (3d Cir. 2020), which bears on his eligibility for cancellation of removal. Duarte-Folgar requested the Board reverse the IJ’s decision to deny him cancellation of removal and remand his case to the IJ to consider this intervening case law. But the Board instead merely affirmed the IJ’s decision to deny a continuance. Because we conclude that decision was inadequate, we grant the petition for review and remand for the Board to reconsider its ruling and explain its reasoning. I. Duarte-Folgar entered the United States without inspection in 2003 and was placed in removal proceedings in 2013, just months shy of the ten years of continuous residency required for cancellation-of-removal consideration. See 8 USC § 1229b(b)(1)(A). Before his departure date, the Supreme Court decided Pereira v. Sessions, 138 S. Ct. 2105 (2018), which held that a notice to appear omitting the date and time of the hearing is defective and thus fails to stop the clock for an immigrant’s continuous-residency period. Because * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Duarte-Folgar’s initial notice was defective, he sought an additional continuance before the IJ to apply for cancellation of removal, arguing that he had now accrued the necessary ten years of physical presence. But the IJ read Pereira differently, concluding the defect in Duarte-Folgar’s notice to appear was quickly cured by his hearing notice. The IJ also noted that the only evidence of hardship to a U.S. citizen relative (required for cancellation) that Duarte-Folgar had provided was his son’s birth certificate. The IJ thus denied the motion for a continuance, pretermitted (i.e., summarily denied) the application for cancellation of removal, and ordered Duarte-Folgar removed to Guatemala. On appeal, the Board affirmed, and he now petitions for our review. II. On the record before us, the Board’s decision does not adequately address the issues presented by Duarte-Folgar. In his brief to it, he argued that, “in light of Guadalupe, the IJ’s decision to pretermit [his application for cancellation of removal] was erroneous[,] and accordingly this matter should be remanded for consideration of [his application,] including an evidentiary hearing.” A.R. at 13. But the Board inexplicably construed Duarte-Folgar as appealing only “from …
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