NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued November 18, 2020 Decided June 16, 2021 Before DIANE S. SYKES, Chief Judge MICHAEL S. KANNE, Circuit Judge DIANE P. WOOD, Circuit Judge No. 19-3346 YA ZHEN ZHU, On Petition for Review of an Order Petitioner, of the Board of Immigration Appeals. v. No. A077-353-787 MERRICK B. GARLAND, 1 Attorney General of the United States, Respondent. ORDER Ya Zhen Zhu, a Chinese citizen, petitioned for review of an order of the Board of Immigration Appeals denying her motion to reopen her removal proceedings. Eight years after she was ordered removed, Zhu sought to reopen proceedings based on the Supreme Court’s decision in Pereira v. Sessions, which required a Notice to Appear to specify the time and place of an alien’s removal hearing to trigger what is known as the 1 Merrick B. Garland was substituted in place of William Barr while this matter was on appeal. No. 19-3346 Page 2 “stop-time rule.” 138 S. Ct. 2105, 2118 (2018). That rule prevents a noncitizen from accruing additional continuous physical presence towards the 10 years required to be able to apply for cancellation of removal after they have been served. Zhu argued that she was never served with an NTA that complied with 8 U.S.C. § 1229(a)(1), so she never stopped accruing continuous physical presence in the United States to apply for cancellation of removal. We held Zhu’s case in abeyance after the Supreme Court took up Niz-Chavez v. Barr, No. 19-863, 2020 WL 3038288 (U.S. June 8, 2020), to resolve a post-Pereira circuit split over whether a subsequent notice of hearing can cure a defective NTA. In April 2021, the Supreme Court issued its decision in Niz-Chavez v. Garland, holding that the government may not provide the required information “piecemeal” and must instead issue an NTA in the form of “a single fully compliant document to trigger the stop-time rule.” 141 S. Ct. 1474, 1479 (Apr. 29, 2021). In its later position statement, the government argued that Niz-Chavez was not fully dispositive of the issues before us. The government concedes that Zhu never received a fully compliant NTA, but maintains that she forfeited any challenge to it by not raising a timely objection during her initial removal proceedings. The government points to our decision in Chen v. Barr, 960 F.3d 448, 451–52 (7th Cir. 2020), issued days before the Court granted certiorari in Niz-Chavez, in which we concluded that a petitioner surrendered any opportunity for relief by neither timely objecting to a defective NTA nor showing excusable delay or prejudice. The government argues that Zhu’s untimeliness was inexcusable because, long before Pereira, she could have contested the statutory deficiencies in the NTA. Moreover, says the government, she had not shown prejudice because proper notice would not have changed the outcome, given that she—assisted by counsel— regularly attended all of her hearings throughout removal proceedings …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals