Cite as 28 I&N Dec. 676 (BIA 2023) Interim Decision #4057 Matter of Yun-Xia CHEN, Respondent Decided January 11, 2023 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals (1) The “stop-time” rule under section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(1), is not triggered by the entry of a final removal order, but rather only by service of a statutorily compliant notice to appear or the commission of specified criminal offenses, in accordance with the plain language statutory analysis provided in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). (2) Breaks in physical presence under section 240A(d)(2) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(2), continue to be interpreted as distinct from termination of physical presence under the stop-time rule. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), followed. (3) A respondent claiming a fundamental change in law as the basis for seeking sua sponte reopening must also establish prima facie eligibility for the relief sought. Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999), followed. FOR THE RESPONDENT: Corey T. Lee, Esquire, New York, New York FOR THE DEPARTMENT OF HOMELAND SECURITY: Ji Ho H. Jahng, Assistant Chief Counsel BEFORE: Board Panel: GREER, SAENZ, and LIEBMANN, Appellate Immigration Judges. GREER, Appellate Immigration Judge: This case was last before us on July 26, 2005, when we dismissed the respondent’s appeal from an Immigration Judge’s decision ordering her removed. Relying on Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the respondent has now filed a motion to reopen her removal proceedings to apply for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1) (2018). The motion will be denied. I. FACTUAL AND PROCEDURAL HISTORY The respondent is a native and citizen of the People’s Republic of China who entered the United States on July 19, 2001. The respondent attempted 676 Cite as 28 I&N Dec. 676 (BIA 2023) Interim Decision #4057 entry into this country as a returning United States citizen, presenting an immigration officer with a United States passport issued in another individual’s name. The Department of Homeland Security (“DHS”) charged the respondent with inadmissibility under section 212(a)(6)(C)(ii) of the INA, 8 U.S.C. § 1182(a)(6)(C)(ii) (2000), for falsely representing herself as a United States citizen, and section 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2000), for seeking admission without valid immigration documents. The notice to appear, which was personally served on the respondent, did not comply with section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1) (2000), because, although it specified that her first hearing would take place at the San Pedro, California, Immigration Court, it did not include the date and time of this hearing. See INA § 239(a)(1)(G)(i), 8 U.S.C. § 1229(a)(1)(G)(i) (requiring a notice to appear to specify the “time and place” of the initial hearing). The San Pedro Immigration Court served a notice of hearing on the respondent with the time and place of her initial hearing, …
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