Banuelos-Galviz v. Barr, 10th Cir. , 03-25-20, published
PANEL: HOLMES, MATHESON, and BACHARACH, Circuit Judges.
OPINION BY: Judge Bacharach
KEY QUOTE:
Given the unambiguous language of the pertinent statutes, the stop- time rule is not triggered by the combination of an incomplete notice to appear and a notice of hearing. We thus grant the petition for review and remand to the Board for further proceedings.
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“No ‘Chevron deference’ for you, BIA!” Particularly, where you ignore the clear statutory language as well as the Supreme’s ruling in Pereira. The precedent overruled by the 10th Circuit is Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (BIA 2019) (en banc), a rare (these days) en banc ruling that generated a feisty and correct dissent (also rare following the “Ashcroft purge of ‘03”). But, because of the arcane rules governing the BIA, the overruled precedent in Mendoza-Hernandez will continue to apply everywhere except the 3rd & 10th Circuits.
Not Rocket Science: Notwithstanding the BIA’s “smokescreens,” and that the Fifth and Sixth Circuits have managed to get it wrong, this is a very straightforward reading of the statute that any first-year law student should get right on an exam. We now have three Circuits that have gotten it right, the 3rd, 10th, and 9th, and two that have bobbled it. But, as noted by the 10th Circuit, the 9th Circuit opinion has been vacated pending rehearing en banc. Lopez v. Barr, 925 F.3d 396, 410 (Callahan, J., dissenting), reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020) (Thomas, C.J.).
More “ADR” on the horizon: In any event, the DHS’s choice to serve clearly defective notices combined with the BIA’s “straining to get to deportation” to satisfy their political handlers in the DOJ is continuing to create an awful mess in the Immigration Courts. That, in turn, should continue to “artificially jack up the backlog” and create even more “Aimless Docket Reshuffling” (“ADR”) until it’s finally resolved.
PWS
03-25-20