Gusman Fortilus v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GUSMAN FORTILUS, No. 19-70111 Petitioner, Agency No. A209-169-348 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 10, 2021** Pasadena, California Before: BERZON and BEA, Circuit Judges, and BENNETT,*** District Judge. Gusman Fortilus (“Fortilus”), a native and citizen of Haiti, petitions for review of a Board of Immigration Appeals (“BIA”) decision affirming an * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s legal conclusions de novo, Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011), and its factual findings for substantial evidence, Sinha v. Holder, 564 F.3d 1015, 1020 (9th Cir. 2009). Substantial evidence review means we must uphold the agency’s determination unless the evidence compels a contrary conclusion. Parada v. Sessions, 902 F.3d 901, 908–09 (9th Cir. 2018). The government filed a 28(j) letter conceding that this case should be remanded to the BIA to determine whether Fortilus’s notice to appear (“NTA”), which did not contain the date and time of his immigration hearing, triggered the stop-time rule against voluntary departure. See Posos-Sanchez v. Garland, 3 F.4th 1176, 1184–86 (9th Cir. 2021) (holding that a deficient NTA followed by multiple deficient notices does not trigger the stop-time rule against accruing continuous presence toward voluntary departure); Matter of M-F-O-, 28 I. & N. Dec. 408, 416–17 (BIA Nov. 4, 2021) (holding that an NTA that is deficient under 8 U.S.C. § 1229(a), followed by other deficient notices, does not trigger the stop-time rule). Accordingly, we grant the petition as to voluntary departure and remand. 2 Fortilus argues that jurisdiction did not vest in the Immigration Court because the Notice to Appear that he received did not contain the date and time of his immigration hearing, as required by 8 U.S.C. § 1229(a). Fortilus responded to the notices and attended all scheduled hearings. Jurisdiction vests in the Immigration Court when a charging document, such as a Notice to Appear, is filed. 8 C.F.R. §§ 1003.13, 1003.14(a). These regulations, not 8 U.S.C. § 1229(a), define when jurisdiction vests. Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019). The relevant section, 8 C.F.R. § 1003.15(b), specifies what information must be contained in the initial notice, and it does not require that the time and date of the hearing be included. Id. Fortilus received a Notice of Hearing which contained the information required …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals