NOT RECOMMENDED FOR PUBLICATION File Name: 18a0528n.06 No. 17-3169 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 23, 2018 JOSE GUADALUPE NIETO-CHAVEZ, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS JEFFERSON B. SESSIONS, III, Attorney General, ) ) Respondent. ) ) BEFORE: GIBBONS, COOK, and THAPAR, Circuit Judges. COOK, Circuit Judge. Jose Guadalupe Nieto-Chavez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals (BIA) decision upholding an Immigration Judge’s denial of his application for adjustment of status under 8 U.S.C. § 1255(i) and cancellation of removal under 8 U.S.C. § 1229b(b). Because the BIA correctly found Nieto- Chavez to be inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I), we DENY his petition for review with respect to the BIA’s denial of his application for adjustment of status. In light of the Supreme Court’s recent decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), however, we GRANT Nieto-Chavez’s petition with respect to the BIA’s determination of his ineligibility for cancellation of removal. Case No. 17-3169, Nieto-Chavez v. Sessions I. Nieto-Chavez first entered the United States in 1996 on a nonimmigrant work visa. After the visa expired, he remained in the country illegally and married a United States citizen. In April 2000, local police arrested Nieto-Chavez for domestic violence. As a result of that arrest, immigration officers served him at the jail with a notice to appear that proved defective in two ways: it did not include a hearing date or time and it listed the wrong apartment number. A later-mailed notice of the hearing date and time went to the wrong address and Nieto-Chavez never received it. At the missed hearing, the Immigration Judge ordered Nieto-Chavez removed in absentia. Police later arrested Nieto-Chavez for driving under the influence. This time, immigration officers took Nieto-Chavez into custody and immediately deported him. Shortly afterwards, Nieto-Chavez illegally reentered the country and has remained in the United States ever since. Nieto-Chavez once again came to the attention of the authorities when he pursued permanent residency. He divorced his first wife in July 2011 and remarried that September. His second wife, another United States citizen, filed an I-130 Visa Petition on his behalf. After the Department of Homeland Security approved it, Nieto-Chavez consulted an immigration attorney about changing his immigration status to that of permanent resident. Only then did Nieto-Chavez discover the 2001 in absentia removal order. With this knowledge of his immigration status, Nieto-Chavez moved to reopen his removal proceedings and rescind the order issued in absentia. Though the Immigration Judge denied the motion, the BIA on appeal determined that the absence of proper notice required that the order be vacated and remanded to allow Nieto-Chavez “another opportunity to appear at a hearing and pursue any available relief from removal.” 2 Case No. 17-3169, Nieto-Chavez v. Sessions On remand, Nieto-Chavez applied for adjustment of status and petitioned the Immigration Judge to ...
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