UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

VARINDER SINGH, No. 20-70050 Petitioner, Agency No. v. A209-393-493

MERRICK B. GARLAND, Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted November 17, 2021 San Francisco, California

Filed February 4, 2022

Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Donald W. Molloy, * District Judge.

Opinion by Judge Gould

* The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 2 SINGH V. GARLAND

SUMMARY **

Immigration

Granting Varinder Singh’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).

Under § 1229a(b)(5)(C)(ii), an in absentia notice may be rescinded through a motion to reopen filed at any time if the noncitizen can show that they “did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).” Section 1229(a), entitled, “Notice to Appear,” delineates the requirements that apply to such notice. Paragraph (1) defines the “notice to appear” and requires it specify certain information, including the “time and place at which the proceedings will be held.” Paragraph (2), entitled “Notice of change in time or place of proceedings,” explains what information must be provided if the government changes the time or place of the removal proceedings.

In seeking rescission of his in absentia removal order, Singh relied on Pereira v. Sessions, 138 S. Ct. 2105 (2018), in which the Supreme Court held that a Notice to Appear that does not specify the time and date of removal proceedings does not trigger the “stop-time rule” for purposes of ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SINGH V. GARLAND 3 cancellation of removal. Singh contended that he did not receive the statutorily required notice under § 1229(a) because his Notice to Appear did not provide the date and time of his hearing. In affirming the denial of his motion to reopen, the BIA relied on Matter of Pena-Mejia, 27 I. & N. Dec. 546 (BIA 2019), in which the BIA had limited Pereira to the stop-time rule context and held that rescission of an in absentia removal order is not required where the government provides the time and date of the hearing in a subsequent hearing notice, even if it is not provided in the Notice to Appear.

The panel disagreed that the omission of the time or date of a removal hearing could be cured by a subsequent hearing notice, concluding that this interpretation contravenes the unambiguous statutory text and the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). In Niz-Chavez, the Supreme Court rejected this two-step practice, interpreting § 1229(a) to require a “single statutorily compliant document” to trigger the stop-time rule and concluding that a subsequent hearing notice could not cure a defective Notice to Appear. The panel explained that the reasoning in Niz-Chavez made clear that the government must provide all statutorily required information in a single Notice to Appear, not only to trigge