Argued July 8, 2014
Petition for Review of an Order of the Board of Immigration Appeals. A 076-505-705.
For YI DI WANG, Petitioner: Joshua E. Bardavid, Attorney, LAW OFFICE OF JOSHUA E. BARDAVID, New York, NY.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: Corey L. Farrell, Attorney, OIL, Attorney, Christina Bechak Parascandola, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC.
Before WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges.
Wood, Chief Judge.
In order to be eligible for cancellation of removal, a nonpermanent resident alien must have accrued 10 years of continuous physical presence in the United States. That presence, however, is deemed to end " when the alien is served a Notice to Appear under section 1229(a)" of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1229b(b)(1)(A), (d)(1). In this petition for review, we must decide whether a notice that does not specify a particular time and date for the alien's initial hearing nonetheless suffices for purposes of this " stop-time" rule. The Board of Immigration Appeals has already answered that question in the affirmative, in its precedential decision in Matter of Camarillo, 25 I & N Dec. 644 (BIA 2011). We conclude that its interpretation is entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and so we deny the petition for review filed by Yi Di Wang.
Wang, a native and citizen of China (Fujian Province), was smuggled into the United States Virgin Islands on September 27, 1999; he was 21 years old at the time. Within two days of his arrival, immigration authorities discovered him and took him into custody. He was personally served on that date with a Notice to Appear that ordered him to appear in the immigration court in New Orleans at a " [t]ime and date to be set later." (There is no immigration court in the U.S. Virgin Islands. See EOIR Immigration Court Listing, http://www.justice.gov/eoir/sibpages/ICadr.htm (last visited July 16, 2014).) The authorities then transported Wang to a detention facility in New Orleans. Wang was released on $15,000 bond, at which time he provided an address in North Carolina as his residence.
In the course of the 1999 proceedings, the immigration court twice attempted to inform Wang of the date and time of his hearing. While he was in custody in New Orleans, the immigration court sent him via FedEx a " notice of hearing" setting a date and time for a video hearing. After his release on bond, the court sent a second
notice of hearing--this time to the North Carolina address he had furnished--setting a different date and time. Although Wang received the first notice of hearing, it appears that neither notice was properly served. Wang did not show up for his hearing, and in November 1999, the immigration judge administratively closed the case at the government's request.
Over the next 10 years, Wang remained in the United States and avoided the attention of the immigration authorities. In 2009 he married a Chinese citizen and eventually had two children with her. In October of that year he voluntarily returned to immigration court and moved to recalendar his proceedings. At a hearing in March 2010, Wang admitted the charges in the Notice to Appear and conceded removability, but stated that he was pursuing a U Visa and planned to seek asylum and relief under the Convention Against Torture. (A U Visa is available to noncitizen victims of certain crimes who " have been or are likely to be helpful to authorities in investigating or prosecuting that crime." L.D.G. v. Holder, 744 F.3d 1022, 1024 (7th Cir. 2014); see 8 U.S.C. § § 1101(a)(15)(U), 1184(p).) Wang believed that he was eligible for the visa as a victim of human trafficking. See 8 U.S.C. § 1101(a)(15)(U)(iii). Before it could be resolved, his case was transferred to the immigration court in Chicago; that court held a hearing in March 2011. Immigration Judge Carlos Cuevas ordered the case continued for 20 months until November 2012 to allow Wang to continue pursuing ...