Estrada-Cardona v. Garland

Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS August 17, 2022 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ MAYRA VERONICA ESTRADA- CARDONA, Petitioner, v. No. 21-9562 MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ Petition for Review of an Order from the Board of Immigration Appeals _________________________________ Jennifer M. Smith of Jennifer Smith Law Office, Glenwood Spring, Colorado (Mark R. Barr of Lichter Immigration, Denver, Colorado, with her on the briefs), for Petitioner. Keith McManus, Office of Immigration Litigation (Brian Boynton, Acting Assistant Attorney General, Civil Division; Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation; Spencer S. Shucard, Trial Attorney, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, D.C., for Respondent. _________________________________ Before HARTZ, BALDOCK, and McHUGH, Circuit Judges. _________________________________ BALDOCK, Circuit Judge. _________________________________ Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 2 The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses. 8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence. I. In 2002, Petitioner Mayra V. Estrada-Cardona entered the United States on a tourist visa which she subsequently overstayed. She resided in the United States with her two United States citizen children: A.E. and L.E. A.E. suffers from mental and physical disabilities, some of which are likely to be lifelong. While in the United States, Petitioner played a key role in ensuring A.E. received physical therapy and special education support—both vital to A.E.’s wellbeing and continued progress. All was quiet until May 29, 2009, when police arrested Petitioner for driving without a license. She pleaded guilty and paid the associated fines. As a result of the traffic violation, Immigration and Customs Enforcement (“ICE”) detained Petitioner 2 Appellate Case: 21-9562 Document: 010110725741 Date Filed: 08/17/2022 Page: 3 and began removal proceedings. Pursuant to the then-prevailing practice, the Government issued Petitioner a notice to appear ordering her to appear before an immigration judge on a date and time “to be set.” Five months later, the Government sent Petitioner a notice of hearing setting the date and time of her hearing. At the hearing, Petitioner appeared unrepresented and conceded the …

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