Lara Canales v. Garland

Case: 19-60827 Document: 00516616439 Page: 1 Date Filed: 01/19/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 19, 2023 No. 19-60827 Lyle W. Cayce Clerk Karla Yadira Lara Canales, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A099 528 344 Before Jolly, Dennis, and Higginson, Circuit Judges. E. Grady Jolly, Circuit Judge:* This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 19-60827 Document: 00516616439 Page: 2 Date Filed: 01/19/2023 No. 19-60827 I. The Attorney General may allow otherwise-removable aliens to remain if they have accrued 10 years of continuous physical presence in the United States—a discretionary form of relief otherwise known as “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous presence terminates when either of two events occurs: (1) an alien is served with a notice to appear (NTA), or (2) an alien commits an enumerated criminal offense. 8 U.S.C. § 1229b(d)(1). If the BIA orders an alien removed, that alien may file a motion to reopen the removal proceedings. This form of procedural relief allows aliens to ask the BIA to reconsider its removal decision “in light of newly discovered evidence or a change in circumstances since the hearing.” Lugo- Resendez v. Lynch, 831 F.3d 337, 339 (5th Cir. 2016) (quoting Dada v. Mukasey, 554 U.S. 1, 12 (2008)). These motions, however, must be filed no later than 90 days after the entry of a final administrative decision. Id. (citing 8 U.S.C.§ 1229a(c)(7)). The BIA issued its final administrative decision when it ordered Lara Canales to be removed in August 2006. 1 As is often the case, Lara Canales was not removed. In the meantime, the law changed when the Supreme Court decided Pereira v. Sessions, 138 S. Ct. 2105 (2018). In Pereira, the Court held that a “putative notice to appear that fails to designate the specific time or place of the [alien]’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule.” 138 S. Ct. at 2113–14. Less than 90 days after the Pereira decision, Lara Canales filed a motion to reopen, arguing that because her 2006 NTA was defective, she had accrued the necessary period of continuous presence to be eligible for 1 This removal order arose from a reversal of the immigration judge’s initial determination that Lara Canales was entitled to asylum. 2 Case: 19-60827 Document: 00516616439 Page: 3 Date Filed: 01/19/2023 No. 19-60827 cancellation of …

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