FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WINSTON IVAN GUTIERREZ- No. 17-71012 ALM, Agency No. Petitioner, A070-031-172 v. OPINION MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 13, 2022 Pasadena, California Filed March 15, 2023 Before: Kenneth K. Lee and Holly A. Thomas, Circuit Judges, and Richard D. Bennett, * District Judge. Opinion by Judge Bennett * The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. 2 GUTIERREZ-ALM V. GARLAND SUMMARY ** Immigration Denying Winston Gutierrez-Alm’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) an Order to Show Cause (“OSC”) that fails to disclose the time and place of an immigrant’s deportation proceedings is sufficient to trigger the stop-time rule in a transitional rules case; 2) Gutierrez’s OSC triggered the stop-time rule, making him ineligible for suspension of deportation; and 3) substantial evidence supported the denial of withholding of removal and protection under the Convention Against Torture (“CAT”). In 1989, Gutierrez entered the United States without inspection. In 1993, he was served an OSC, the charging document that initiated immigration proceedings prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Gutierrez’s OSC did not list the time and place of his proceedings. Gutierrez sought suspension of deportation, a form of relief available prior to IIRIRA. As relevant here, an applicant for suspension of deportation was required to accrue at least seven years of continuous physical presence in the United States prior to applying. However, IIRIRA provided that continuous physical presence is deemed to end when the applicant is served with a notice to appear (“NTA”). Under IIRIRA’s transitional rules, which apply to individuals, like Gutierrez, whose proceedings were pending when IIRIRA was enacted, ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GUTIERREZ-ALM V. GARLAND 3 this stop-time rule applies retroactively to proceedings initiated by an OSC. Accordingly, Gutierrez’s continuous physical presence was deemed to end when he was served his OSC—only four years after his arrival, and thus short of the required seven years. Gutierrez contended that the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), instructs that his OSC was statutorily defective and that the stop-time rule was therefore inapplicable. In Pereira, the Supreme Court held that a putative NTA that fails to designate the time or place of removal proceedings does not trigger the stop-time rule. The panel wrote that the issue of whether Pereira applies to an OSC was an open issue, but it was not a close one: Every circuit to address the question has held that Pereira does not apply. In joining those circuits and holding that an OSC that fails to disclose the time and place of proceedings is sufficient to trigger the …
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