U.S. Court of Appeals for the Second Circuit
Notice to Appear — Stop-time Rule
Guamanrriga v. Holder
Judges McLaughlin, Cabranes and Wesley
Background: On appeal, the petitioner sought to reverse the denial of his petition seeking the cancellation of his removal and denying his request of adjustment of status. The petitioner alleged that the combination of an April 2000 Notice to Appear and a subsequent May 2000 Notice of Hearing did not provide the petitioner with the statutory notice required by the Immigration and Nationality Act § 239 (a) (1). In addition, the petitioner argued that because of the defective notice, the stop-time rule did not go into effect.
Ruling: The Second Circuit held that service of a Notice to Appear followed by service of a separate notice indicating the precise date and time of the hearing satisfied the notice requirements § 239 (a) (1). The court further held that, once a petitioner has been served with notice complying with INA § 239 (a) (1), the stop-time rule of § 240A (d) (1) is triggered, regardless of whether subsequent notices regarding changes in time or place of proceedings comply with § 239 (a) (1). Because the petitioner could not demonstrate that he was physically present in the U.S. for a continuous period of 10 years immediately prior to his application for relief, he was not eligible for the cancellation of his removal or adjustment of status.
Sharyn F. Bertisch of Feinbloom Bertisch LLP for the petitioner; David H. Wetmore of the Office of Immigration Litigation, for the respondent