FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ISAIAS LORENZO LOPEZ, No. 15-72406 Petitioner, Agency No. v. A078-242-814 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 12, 2019 Pasadena, California Filed May 22, 2019 Before: Dorothy W. Nelson and Consuelo M. Callahan, Circuit Judges, and Edward R. Korman, * District Judge. Opinion by Judge Korman; Dissent by Judge Callahan * The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 2 LORENZO LOPEZ V. BARR SUMMARY ** Immigration Granting Isaias Lorenzo Lopez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal. Lorenzo sought cancellation of removal, a form of relief from removal that requires that an applicant must, among other requirements, reside in the United States continuously for seven years after having been admitted in any status. However, under the “stop-time” rule, as relevant here, the service of a Notice to Appear under 8 U.S.C. § 1229(a) terminates an alien’s residence. In Lorenzo’s case, an immigration judge and the BIA found him ineligible for cancellation because his March 2008 Notice to Appear terminated his residence period before he had accrued the requisite seven years. In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Supreme Court held that a Notice to Appear, as defined in 8 U.S.C. § 1229(a), must contain the time and place at which removal proceedings will be held to trigger the stop-time rule. The panel concluded that Lorenzo’s Notice to Appear ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LORENZO LOPEZ V. BARR 3 did not terminate his residence because it lacked time-and- place information. However, because Lorenzo also received a subsequent Notice of Hearing that advised him of the time and place of his proceedings, the Attorney General argued that the Notice of Hearing cured the defective Notice to Appear and triggered the stop-time rule. The Attorney General relied on Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), which held that a Notice to Appear that fails to include the date and time of an alien’s deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice of the hearing is later sent to the alien. The panel held that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing, explaining that the plain language of the statute foreclosed the Attorney General’s argument and that Pereira had effectively overruled Popa. The panel noted that the ...
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