Karla M. Azmitia v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14398
Non-Argument Calendar
____________________
KARLA M. AZMITIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A076-417-155
____________________
USCA11 Case: 21-14398 Document: 21-1 Date Filed: 01/06/2023 Page: 1 of 6

-- 1 of 6 --

2 Opinion of the Court 21-14398
Before J ILL PRYOR , BRANCH, and E DMONDSON, Circuit Judges.
PER CURIAM:
Karla Azmitia (“Petitioner”), a native and citizen of Guate-
mala, petitions for review of the order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of
cancellation of removal. No reversible error has been shown; we
deny the petition.
Petitioner entered the United States without inspection in
January 1997. On 2 June 1998, the Immigration and Naturalization
Service served Petitioner personally with a Notice to Appear
(“NTA”). The NTA charged Petitioner as removable for being in
the United States without admission or parole. In writing, the NTA
ordered Petitioner to appear before an IJ at the Miami Immigration
Court at 9:00 a.m. on 14 July 1998.
No hearing was held on 14 July 1998. The hearing was
moved to a later date. Petitioner’s removal hearing actually took
place, instead, on 25 August 1998. Petitioner failed to attend the
hearing; the IJ ordered Petitioner removed
in absentia.
Nearly twenty years later, Petitioner (through counsel)
moved to rescind her
in absentia removal order and to reopen her
removal proceedings. Petitioner asserted that she never received
notice of the 25 August 1998 hearing. An IJ granted Petitioner’s
motion. The IJ noted that the record contained no notice resetting
the master calendar hearing for 25 August 1998. After Petitioner’s
USCA11 Case: 21-14398 Document: 21-1 Date Filed: 01/06/2023 Page: 2 of 6

-- 2 of 6 --

21-14398 Opinion of the Court 3
removal proceedings were reopened, Petitioner applied for cancel-
lation of removal.
At a merits hearing on Petitioner’s application, the govern-
ment argued that Petitioner was ineligible for cancellation of re-
moval because she did not have -- prior to receiving the written
NTA in 1998 -- ten years of continuous physical presence in the
United States. Petitioner responded that the NTA was defective
and, thus, did not trigger the “stop-time rule”: a rule that stops the
accrual of continuous physical presence upon service of the NTA.
According to Petitioner -- although the NTA listed a time for a
hearing -- the NTA did not specify the time of her actual hearing: a
hearing for which Petitioner was given no written notice.
The IJ denied Petitioner’s application and ordered Petitioner
removed. The BIA later affirmed the IJ’s decision and dismissed
Petitioner’s appeal. The BIA determined that Petitioner’s period of
continuous physical presence ended on 2 June 1998: the day Peti-
tioner was served the NTA specifying the time and place set for
removal hearing. The BIA concluded that Petitioner failed to es-
tablish ten years of continuous physical presence preceding the ser-
vice of the NTA and was, thus, statutorily ineligible for cancellation
of removal. This appeal followed.
Because the BIA did not adopt expressly the IJ’s decision, we
review only the BIA’s decision.
See Jeune v. U.S. Att’y Gen., 810
F.3d 792, 799 (11th Cir. 2016). We review
de novo the BIA’s con-
clusions of law.
See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1350 (11th Cir. 2009).
USCA11 Case: 21-14398 Document: 21-1 Date Filed: 01/06/2023 Page: 3 of 6

-- 3 of 6 --

4 Opinion of the Court 21-14398
The Attorney General has discretion to cancel the removal
of a non-citizen under certain circumstances.
See 8 U.S.C.
§ 1229b(b)(1). Our jurisdiction to review the BIA’s denial of discre-
tionary relief -- including cancellation of removal -- is limited to re-
viewing “constitutional claims or questions of law.”
See 8 U.S.C.
§ 1252(a)(2)(B), (D);
Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1262
(11th Cir. 2020) (
en banc).
To demonstrate eligibility for cancellation of removal, a
non-citizen must show, among other things, that she “has been
physically present in the United States for a continuous period of
not less than 10 years immediately preceding the date of [her] ap-
plication.”
See 8 U.S.C. § 1229b(b)(1)(A). Under the so-called
“stop-time rule,” a non-citizen’s period of continuous physical pres-
ence is “deemed to end . . . when the alien is served a notice to
appear under” 8 U.S.C. § 1229(a).
See 8 U.S.C. § 1229b(d)(1);
Pe-
reira v. Sessions, 138 S. Ct. 2105, 2109 (2018).
To trigger the stop-time rule, an NTA must contain -- within
a single document -- the information specified in section 1229(a)(1).
See Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480-86 (2021);
Pereira,
138 S. Ct. at 2113-14. Pertinent to this appeal, the NTA must in-
clude “[t]he time and place at which the [removal] proceedings will
be held.”
See 8 U.S.C. § 1229(a)(1)(G);
Pereira, 138 S. Ct. at 2113-
14 (“A putative notice to appear that fails to designate the specific
time or place of the noncitizen’s removal proceedings is not a ‘no-
tice to appear under section 1229(a),’ and so does not trigger the
stop-time rule.”).
USCA11 Case: 21-14398 Document: 21-1 Date Filed: 01/06/2023 Page: 4 of 6

-- 4 of 6 --

21-14398 Opinion of the Court 5
The BIA committed no error in concluding that the June
1998 NTA served on Petitioner was a sufficient event to trigger the
stop-time rule. The NTA included all the information specified in
section 1229(a)(1), including the time and place of Petitioner’s then-
scheduled hearing. Nothing evidences that -- when the NTA issued
-- the hearing time specified on the NTA was incorrect: it set out
the then honestly intended time and date (at least, no one claims
otherwise).
That the hearing was later postponed and in fact held on a
date different from the date listed on the NTA does not render the
NTA non-compliant with section 1229(a)(1). The statute provides
expressly that a hearing time may be rescheduled.
See 8 U.S.C. §
1229(a)(2)(A) (requiring written notice of “any change or postpone-
ment in the time and place of [removal] proceedings”). We accept
that the government erred by failing to notify Petitioner of the re-
scheduled hearing date, as required under section 1229(a)(2). That
error, however, has no bearing on whether the NTA -- when issued
-- contained the information in section 1229(a)(1) necessary to trig-
ger the stop-time rule. The NTA did contain the triggering infor-
mation. Moreover, the government’s failure to provide adequate
notice of the rescheduled hearing was a different issue and was later
remedied by the rescission of the
in-absentia-removal order and the
reopening of Petitioner’s removal proceedings.
Because the June 1998 NTA comprised a single document
listing the required information in section 1229(a)(1), the BIA com-
mitted no error in concluding that the NTA was sufficient to trigger
USCA11 Case: 21-14398 Document: 21-1 Date Filed: 01/06/2023 Page: 5 of 6

-- 5 of 6 --

6 Opinion of the Court 21-14398
the stop-time rule. Under the stop-time rule, Petitioner’s period of
continuous physical presence in the United States ran from her date
of entry in January 1997 until she was served with the NTA in June
1998. Because Petitioner cannot demonstrate at least ten years of
continuous physical presence in the United States, the BIA con-
cluded correctly that Petitioner is statutorily ineligible for cancella-
tion of removal.
PETITION DENIED.
USCA11 Case: 21-14398 Document: 21-1 Date Filed: 01/06/2023 Page: 6 of 6

-- 6 of 6 --