Angel Posos-Sanchez v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL POSOS-SANCHEZ, AKA Elias No. 17-72002

Avalos Fonseca, AKA Angel

Figueroa Martinez, AKA Pedro Agency No.

Soto-Hernandez, A092-724-951

Petitioner,

v. OPINION

MERRICK B. GARLAND, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 7, 2021

Pasadena, California

Filed July 7, 2021

Before: Kim McLane Wardlaw, Ronald M. Gould, and

John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw

2 POSOS-SANCHEZ V. GARLAND

SUMMARY *

Immigration

Denying in part and granting in part Angel Posos-

Sanchez’s petition for review of a decision of the Board of

Immigration Appeals, and remanding, the panel held that:

1) the agency correctly concluded that Posos had not been

“admitted” to the United States and was therefore removable

and ineligible to adjust his status; and 2) in light of Pereira

v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v.

Garland, 141 S. Ct. 1474 (2021), the Notice to Appear

(NTA) served on Posos – which lacked the time and date of

his removal proceedings – did not terminate his period of

physical presence in the United States and, as a result, the

agency erred in finding him ineligible for voluntary

departure on the ground that he had not been physically

present for a year before service his NTA.

The panel concluded that the IJ correctly concluded that

Posos had not been “admitted” as required by 8 U.S.C.

§ 1182(a)(6)(A)(i) (removability ground based on lack of

admission) and 8 U.S.C. § 1255(a) (adjustment of status).

The panel explained that 8 U.S.C. § 1101(a)(13)(A) defines

“admission” and “admitted” as “the lawful entry of the alien

into the United States after inspection and authorization by

an immigration officer,” and that, based on this court’s

precedent, unless an immigration official has inspected a

noncitizen at a port of entry and then granted that noncitizen

permission to enter the United States, that noncitizen has not

been “admitted.” Accordingly, the panel concluded that

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

POSOS-SANCHEZ V. GARLAND 3

Posos had not been admitted when agents at a border patrol

checkpoint in San Clemente, California, apprehended and

released him after he showed them his then-valid temporary

resident card. The panel assumed that these actions could

amount to “inspection and authorization,” but explained the

event did not take place at a “port of entry,” as the checkpoint

sits well within the United States. Noting that the court has

read the term “admitted” more broadly when statutory

context demanded, the panel found no factual or legal

ground to do so here.

The panel observed that the BIA had reached the same

result as the IJ, but concluded that the BIA erred in

concluding that INS’s ultimate decision to deny Posos

temporary resident status would have undone any

hypothetical admission at the checkpoint. The panel

concluded that the BIA’s reasoning turned on an erroneous

interpretation of United States v. Hernandez-Arias, 757 F.3d

874 (9th Cir. 2014), explaining that, under Hernandez-Arias,

noncitizens factually admitted at a U.S. port of entry while

they hold temporary resident status do not magically become

unadmitted once their temporary resident status ends.

Nevertheless, because the IJ’s legal analysis was sound, the

panel affirmed the agency’s conclusion that Posos was

removable and ineligible to adjust status.

As to the denial of voluntary departure under 8 U.S.C.

§ 1229c, the panel concluded that the agency erred in

concluding that Posos lacked the requisite period of physical

presence prior to service of his NTA. Under

§ 1229c(b)(1)(A), an IJ must find, among other things, that

the noncitizen “has been physically present in the United

States for a period of at least one year immediately preceding

the date the notice to appear was served under section

1229(a).” The panel explained that, unlike the agency at the

4 POSOS-SANCHEZ V. GARLAND

time of Posos’s proceedings, it had the benefit of the

Supreme Court’s decisions in Pereira and Niz-Chavez. In

light of those rulings, the panel concluded that: 1)

§ 1229c(b)(1)(A) unambiguously requires that the NTA, if it

is to stop a noncitizen from earning physical-presence time

for voluntary departure, must comply with § 1229(a), which

includes the requirement that the NTA include the time of

removal proceedings; and 2) § 1229c(b)(1)(A)

unambiguously envisions a § 1229(a) NTA as being a single

document. Bringing these two principles together, the panel

concluded: a noncitizen builds up physical-presence time

under § 1229c(b)(1)(A) from the moment he enters the

United States until the moment he receives a single

document that provides him with all the information listed in

§ 1229(a). Explaining that this conclusion flows from the

statute’s unambiguous text, structure, and history, the panel

concluded it had no need to defer to any previous

interpretation advanced by the BIA.

Applying these principles to Posos’s case, the panel

concluded that he never received the NTA that

§ 1229c(b)(1)(A) demands because his NTA lacked the time

and date of his hearing and, as a result, Posos continued to

accrue physical-presence time ever since he entered the

country in March 2011. Because Posos had over five years

of physical-presence when the IJ ordered him removed, and

thus indisputably satisfied § 1229c(b)(1)(A)’s physical-

presence requirement, the panel concluded that the agency

wrongly found Posos ineligible for voluntary departure. The

panel remanded to the agency to make further findings and

conclusions about Posos’s eligibility for voluntary

departure.

POSOS-SANCHEZ V. GARLAND 5

COUNSEL

Michael J. Selph (argued), Law Offices of Michael J. Selph,

North Hollywood, California, for Petitioner.

Rachel L. Browning (argued), Trial Attorney; Keith I.

McManus, Assistant Director; Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C.; for Respondent.

OPINION

WARDLAW, Circuit Judge

In September 1990, United States Border Patrol agents

stopped Angel Posos-Sanchez at a border patrol checkpoint

in San Clemente, California. They examined his

immigration papers—which at the time authorized him to

work and reside in the United States—and then let him go

on his way. This incident became important decades later,

when Posos faced removal proceedings. At that time, he

applied to adjust his status and contested his removal from

the United States because he claimed that the officials in San

Clemente had “admitted” him to the United States. See

8 U.S.C. §§ 1101(a)(13)(A), 1182(a)(6)(A)(i), 1255(a).

Posos also applied for voluntary departure at the end of

his removal proceedings, so that he could leave the United

States on his terms. See id. § 1229c. He made that request

even though he had not been physically present within the

United States for a year before the Department of Homeland

Security (DHS) served him with the operative Notice to

Appear (NTA). At the time, he thus appeared ineligible for

voluntary departure. See id. § 1229c(b)(1)(A). Yet his NTA

6 POSOS-SANCHEZ V. GARLAND

did not state the time or date of Posos’s removal

proceedings—a fact that now sets off alarm bells given the

Supreme Court’s groundbreaking decisions in Pereira v.

Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v.

Garland, 141 S. Ct. 1474 (2021).

Though Posos lost on both fronts before the Immigration

Judge (IJ) and the Board of Immigration Appeals (BIA)

(collectively “the agency”), we render a mixed verdict here.

On the one hand, the agency properly found that immigration

officials did not “admit” Posos to the United States when

they allowed him to pass through the San Clemente

checkpoint in 1990. He is therefore removable and ineligible

to adjust his status. On the other hand, the agency erred in

finding him ineligible for voluntary departure under

§ 1229c(b)(1)(A). The missing date-and-time information

on Posos’s NTA means that DHS never served him with the

kind of NTA that § 1229c(b)(1)(A) demands. Accordingly,

that NTA did not stop the clock for purposes of computing

the time during which he was physically present in the

United States under § 1229c(b)(1)(A). And as a result,

Posos had racked up five years of physical presence when

the IJ ordered him removed, and he was therefore eligible

for voluntary departure if he satisfied the other statutory

conditions.

We thus deny in part and grant in part Posos’s petition

and remand for further consideration of his application for

voluntary departure.

I.

A.

Posos was born in Zacatepec, Mexico, and at age 17, he

set out on foot for the United States. At some point in 1980,

POSOS-SANCHEZ V. GARLAND 7

he crossed the southern border of the United States without

encountering American immigration authorities. He has

lived, worked, and built a family here ever since.

During the first decade that Posos lived in the country,

Congress passed the Immigration Reform and Control Act

(IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (1986), and the

amnesty provisions therein, see 8 U.S.C. § 1255a. These

amnesty provisions provided a path to permanent resident

status for noncitizens who had resided unlawfully and been

physically present in the United States since January 1, 1982.

See Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1134 (9th

Cir. 1999). Qualifying noncitizens who wished to take

advantage of this system applied “first for lawful temporary

resident status, and then, after a one-year wait, for permanent

residency.” Id.

Posos applied for temporary resident status under this

law, but, because of the law’s confidentiality provisions, we

aren’t privy to every detail about that application. See

8 U.S.C. § 1255a(c)(5). Still, we know that, on May 4, 1988,

the Immigration and Naturalization Service (INS) issued

Posos a temporary resident card (Form I-688) that expired

on November 30, 1990. This card stated that Posos could

legally “reside and work in U.S. until [the] card expires.”

Then, on August 24, 1993, the INS informed Posos that his

“application for the benefit of temporary resident status must

be and is hereby denied.” Nothing in the record suggests that

Posos ever held either temporary or permanent resident

status after August 24, 1993.

Yet his temporary resident card remained valid when

immigration officials stopped him at the border patrol

checkpoint in San Clemente, California on September 24,

1990. See generally 8 U.S.C. § 1357(a); 8 C.F.R. § 287.1(a).

Posos lived in Riverside, California at the time, and had

8 POSOS-SANCHEZ V. GARLAND

traveled to San Diego for recreational purposes. On Posos’s

way back home, the border patrol agent manning the San

Clemente checkpoint stopped Posos and his passengers and

asked them about their citizenship status. Posos stated that

he was a Mexican citizen and presented the border patrol

agent with his valid temporary resident card. As a result, the

border patrol agents released Posos on his own

recognizance; his passengers, who were undocumented

Mexican citizens, voluntarily elected to return to Mexico

rather than face deportation proceedings.

After the INS denied his application for temporary

resident status in 1993, Posos continued to live and work in

the United States. However, in either 2010 or 2011,

Immigration and Customs Enforcement removed Posos to

Mexico (the record does not explain how or why this

removal came about).

Seeking to reunite with his family, Posos tried to reenter

the United States at the San Ysidro Port of Entry on March

9, 2011. There, immigration officials stopped the vehicle

bringing him into the country and found him hiding in the

trunk of the car. Posos admitted to these officials that he

lacked the necessary documentation to enter or remain in the

United States. They therefore detained him and referred him

to the Immigration Court for removal proceedings. 1

Importantly for our purposes here, these immigration

officials did not give Posos written, verbal, or nonverbal

authorization to enter the United States, and Posos has never

received such permission.

1

Posos was released on bond on May 16, 2011.

POSOS-SANCHEZ V. GARLAND 9

B.

On May 2, 2011, DHS filed an NTA, alleging that Posos

was removable as a native and citizen of Mexico, who had

entered the United States without being admitted or paroled

after inspection. This NTA failed to state the date and time

of Posos’s removal proceedings. Later on, however, DHS

sent Posos notices of hearing containing that missing

information.

Before the IJ, Posos conceded most of the allegations in

the NTA, denying only the allegation that an immigration

official had not “admitted” him to the United States. He also

applied for affirmative immigration relief, including

adjustment of status under 8 U.S.C. § 1255(a), cancellation

of removal under 8 U.S.C. § 1229b, and voluntary departure

under 8 U.S.C. § 1229c. In filing his application to adjust

his status, Posos maintained that immigration officials had

“admitted” him to the United States.

Posos offered two theories for his “admission” into the

country. First, he argued that he had been admitted when he

received temporary resident status. Second, he claimed that

immigration officials had admitted him into the United

States on September 24, 1990, when the border patrol agents

at the San Clemente checkpoint apprehended and released

him after he showed them his temporary resident card.

The IJ overseeing Posos’s case rejected both arguments,

thereby finding Posos removable and ineligible to adjust his

status. The IJ further denied Posos’s application for

cancellation of removal because Posos lacked a qualifying

relative, and found Posos ineligible for voluntary departure

because he had last entered the United States less than a year

before DHS served him with the operative NTA.

10 POSOS-SANCHEZ V. GARLAND

On appeal before the BIA, Posos contested the IJ’s

decision as to his lack of an “admission” to the United States

(based solely on the events at the San Clemente checkpoint)

and the IJ’s finding that he was ineligible for voluntary

departure. 2 Citing Matter of Burbano, 20 I. & N. Dec. 872,

874 (B.I.A. 1994), the BIA adopted and affirmed the IJ’s

decision, adding only that INS’s ultimate decision to deny

Posos temporary resident status would have undone any

hypothetical admission at the San Clemente checkpoint.

Posos timely petitioned for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(1) and

§ 1252(a)(2)(D). 3 Because the BIA cited Matter of Burbano

and also provided its own analysis in this case, we review

both the BIA and IJ’s decisions. Cordoba v. Barr, 962 F.3d

479, 481 (9th Cir. 2020). We review the agency’s legal

conclusions de novo and review its factual findings for

substantial evidence. Bringas-Rodriguez v. Sessions,

850 F.3d 1051, 1059 (9th Cir. 2017) (en banc).

2

Posos did not pursue his earlier argument that he was still

“admitted” to the United States based on his prior temporary resident

status. Nor has he ever argued that immigration officials “paroled” him

into the United States under 8 U.S.C. § 1182(a)(6)(A)(i) or § 1255(a).

We thus lack jurisdiction to consider these issues. Barron v. Ashcroft,

358 F.3d 674, 678 (9th Cir. 2004).

3

While we cannot review a discretionary denial of voluntary

departure, 8 U.S.C. § 1252(a)(2)(B)(i), we have jurisdiction to correct

erroneous interpretations of 8 U.S.C. § 1229c, see id. § 1252(a)(2)(D);

Corro-Barragan v. Holder, 718 F.3d 1174, 1177 (9th Cir. 2013).

POSOS-SANCHEZ V. GARLAND 11

III.

We first examine whether immigration officials

“admitted” Posos to the United States at the San Clemente

checkpoint on September 24, 1990—as Posos’s

removability and application to adjust his status both turn on

the answer to that question. See 8 U.S.C.

§§ 1182(a)(6)(A)(i), 1255(a).

A.

The INA generally defines the words “admission” and

“admitted” as “the lawful entry of the alien into the United

States after inspection and authorization by an immigration

officer.” Id. § 1101(a)(13)(A); accord Sanchez v. Mayorkas,

2021 WL 2301964, at *2 (U.S. June 7, 2021). We have

explained that this “definition refers expressly to entry into

the United States, denoting by its plain terms passage into

the country from abroad at a port of entry.” Negrete-

Ramirez v. Holder, 741 F.3d 1047, 1051 (9th Cir. 2014); see

also Torres v. Barr, 976 F.3d 918, 924 (9th Cir. 2020) (en

banc) (“[A]lthough the INA does not currently define the

term ‘entry,’ we have long understood this term to refer to

‘coming from outside’ into the United States.” (citation

omitted)). Put otherwise, unless an immigration official has

inspected a noncitizen at a port of entry and then granted that

noncitizen permission to enter the United States, that

noncitizen has not been “admitted” under § 1101(a)(13)(A).

See United States v. Hernandez-Arias, 757 F.3d 874, 880

(9th Cir. 2014).

Accordingly, immigration officials have not “admitted”

Posos to the United States under § 1101(a)(13)(A). Though

these officials have detained and inspected Posos multiple

times at a U.S. port of entry, he concedes that they have

never granted him permission to enter the United States.

12 POSOS-SANCHEZ V. GARLAND

The border patrol’s September 1990 apprehension,

interrogation, and release of Posos at a checkpoint in San

Clemente, California does not change this calculus. We

assume that these actions could theoretically amount to an

“inspection and authorization” under § 1101(a)(13)(A).

Even so, that inspection and authorization did not take place

at a “port of entry”; the San Clemente checkpoint sits well

within the United States. Posos thus cannot have lawfully

entered “the United States after [this] inspection and

authorization.” 8 U.S.C. § 1101(a)(13)(A) (emphasis

added).

Still, § 1101(a)(13)(A)’s definition is just a default, and,

when statutory context has demanded, we have read the term

“admitted” more broadly than the “strict definition” in

§ 1101(a)(13)(A). Hernandez-Arias, 757 F.3d at 880

(quoting Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1015

(9th Cir. 2006)). But the Supreme Court recently

emphasized that “[s]ection 1255 generally requires a lawful

admission” of the kind described in § 1101(a)(13)(A)

“before a person can obtain” lawful permanent-resident

status. Sanchez, 2021 WL 2301964 at *5; see also id. at *2.

And we have found no factual or legal ground that would

justify reading the word “admitted” in either

§ 1182(a)(6)(A)(i) or § 1255(a) to encompass Posos’s

interaction with officials at the San Clemente checkpoint.

The IJ therefore correctly concluded that Posos had not been

“admitted” to the United States as required under

§ 1182(a)(6)(A)(i) or § 1255(a).

B.

The BIA reached the same result, but its route there

turned on an erroneous interpretation of our decision in

Hernandez-Arias. We take this opportunity to correct the

BIA’s reasoning.

POSOS-SANCHEZ V. GARLAND 13

Hernandez-Arias assumed that a noncitizen with

temporary resident status under IRCA’s amnesty provisions

(8 U.S.C. § 1255a(a)) had received a fictional admission to

the United States. 757 F.3d at 881. But even so, the

government’s decision to terminate that status under

8 C.F.R. § 245a.2(u)(4) fully unwound that “statutory

fiction.” Id. By contrast, we never suggested that

terminating a noncitizen’s temporary resident status would

negate a noncitizen’s “factual admission that occurs during

a period of time that the alien is legally entitled to exit and

reenter the United States.” Gomez v. Lynch, 831 F.3d 652,

662 (5th Cir. 2016). We instead cut off that argument,

stating that “our review . . . [was] confined to the operation

of IRCA and its unique implementing regulations” and

“limit[ing] the effect of our holding and our discussion . . .

to those admissions arising under . . . 8 U.S.C. § 1255a(a).”

Hernandez-Arias, 757 F.3d at 881 n.3.

The BIA thus stretched Hernandez-Arias beyond that

decision’s limits when it concluded that the INS’s revocation

of Posos’s temporary resident status in 1993 undid any

theoretical “factual admission” at the San Clemente

checkpoint in 1990. Noncitizens factually admitted to the

United States at a U.S. port of entry while they hold

temporary resident status under § 1255a(a) do not magically

become unadmitted once their temporary resident status

ends. See id. They have, after all, still been “inspected” and

“authorized” to enter the United States at a port of entry.

8 U.S.C. § 1101(a)(13)(A).

***

Because the IJ’s legal analysis was sound, we affirm the

agency’s conclusion that Posos was removable under

§ 1182(a)(6)(A)(i) and ineligible to adjust his status under

§ 1255(a) and deny his petition on this point.

14 POSOS-SANCHEZ V. GARLAND

IV.

That leaves the question of whether the agency correctly

denied Posos’s application for voluntary departure because

he had not been physically present in the United States for at

least one year before DHS served him with the NTA in this

case. See 8 U.S.C. § 1229c(b)(1)(A). Unlike the agency, we

have the benefit of the Supreme Court’s decisions in Pereira

and Niz-Chavez, and, given those rulings, we grant Posos’s

petition on this front and return the case to the agency to re-

examine his application for voluntary departure.

A.

After ordering a noncitizen removed from the United

States, an IJ may permit that noncitizen to leave the country

voluntarily and at his own expense, rather than being

deported by the government. See 8 U.S.C. § 1229c(b). The

IJ must, however, make certain findings before authorizing

that discretionary relief. See id. § 1229c(b)(1). Among

other things and at issue here, the IJ must find that the

noncitizen “has been physically present in the United States

for a period of at least one year immediately preceding the

date the notice to appear was served under section 1229(a).”

Id. § 1229c(b)(1)(A).

Whether a noncitizen meets this physical-presence

requirement appears, at first glance, a simple enough

question. Once DHS serves a noncitizen with an NTA

“under section 1229(a),” that noncitizen ordinarily stops

accruing physical-presence time. Id. An IJ need then only

determine the date of service, the date the noncitizen last

entered the United States, and how much time passed

between the two. If more than a year has elapsed, the

noncitizen may merit voluntary departure.

POSOS-SANCHEZ V. GARLAND 15

But in immigration law, provisions that seem simple

require delicate parsing. And here, the phrase “the date the

notice to appear was served under section 1229(a)” plays a

critical role in calculating a noncitizen’s physical-presence

time. Id. § 1229c(b)(1)(A). It does so in two ways.

First, this phrase unambiguously requires that the NTA,

if it is to stop a noncitizen from earning physical-presence

time, must comply with § 1229(a)’s requirements. To start,

the statute expressly references “section 1229(a),” telling a

reader “where to look to find out what ‘notice to appear’

means.” Pereira, 138 S. Ct. at 2114. It also demands

immigration officials serve the NTA “under section

1229(a).” And while the word “under” can have many

meanings, we think Pereira compels the conclusion here that

it signifies “‘in accordance with’ or ‘according to.’” Id.

(citations omitted). After all, serving a § 1229(a) NTA plays

the same role in both § 1229b(d)(1)’s stop-time rule (at issue

in Pereira) and § 1229c(b)(1)(A)’s physical-presence

requirement (at issue here). It marks the end of the temporal

period that determines, in part, a noncitizen’s eligibility for

voluntary departure or cancellation of removal.

Moreover, because the Supreme Court has already told

us what Congress meant by “under section 1229(a)” when

Congress used this phrase in § 1229b(d)(1)(A), this reading

should come as no surprise. For § 1229c(b)(1)(A) uses the

exact same language, and interpreting that phrase differently

would contravene the “normal rule of statutory construction

that identical words used in different parts of the same act

are intended to have the same meaning.” Pereira, 138 S. Ct.

at 2115 (citation omitted); see generally Corro-Barragan,

718 F.3d at 1178 (explaining that both provisions came into

being when Congress overhauled immigration law through

the Illegal Immigration Reform and Immigrant

16 POSOS-SANCHEZ V. GARLAND

Responsibility Act of 1996 (IIRIRA)). For these reasons,

§ 1229c(b)(1)(A) requires DHS to provide a noncitizen with

an NTA containing all the information that Congress listed

in § 1229(a). See Niz-Chavez, 141 S. Ct. at 1480; Pereira,

138 S. Ct. at 2114.

Section 1229c(b)(1)(A)’s second subtlety is that it

unambiguously envisions a § 1229(a) NTA as being a single

document. The statute speaks of “the notice to appear.”

8 U.S.C. § 1229c(b)(1)(A) (emphasis added). It thus joins

the article “the” with the singular noun “notice to appear”—

“a combination that . . . seems to suggest a discrete

document.” Niz-Chavez, 141 S. Ct. at 1483. Note also that

Congress ended § 1229c(b)(1)(A)’s physical-presence

period on “the date” the government serves a noncitizen with

a § 1229(a) NTA. 8 U.S.C. § 1229c(b)(1)(A) (emphasis

added). That language “equate[s] servi[ng]” a § 1229(a)

NTA “with a discrete moment, not an ongoing endeavor.”

Niz-Chavez, 141 S. Ct. at 1483. Add to this Niz-Chavez’s

extended and pertinent discussion of IIRIRA’s statutory

structure and history, see id. at 1482–84, and we have no

doubt that § 1229c(b)(1)(A)’s physical-presence period ends

only once a noncitizen receives a single document

containing the information required by § 1229(a).

Bringing these two principles together: a noncitizen

builds up physical-presence time under § 1229c(b)(1)(A)

from the moment he enters the United States until the

moment he receives a single document that provides him

with all the information Congress listed in 8 U.S.C.

§ 1229(a)—i.e., a § 1229(a) NTA. This conclusion flows

from IIRIRA’s unambiguous text, structure, and history. We

thus have no need to defer to any previous interpretation

advanced by the BIA. See Niz-Chavez, 141 S. Ct. at 1480;

Pereira, 138 S. Ct. at 2113–14.

POSOS-SANCHEZ V. GARLAND 17

B.

These principles make resolving Posos’s case

straightforward. He received an NTA that omitted “[t]he

time . . . at which” his removal “proceedings [would] be

held,” as 8 U.S.C. § 1229(a)(1)(G)(i) requires. He then

received various notices of hearing, which provided that

missing information, but otherwise lacked the information

listed in § 1229(a)(1). He thus never received “the notice to

appear . . . served under section 1229(a)” that

§ 1229c(b)(1)(A) demands.

As a result, Posos has continued to accrue physical-

presence time ever since he entered the country in March

2011. This means he had over five years of physical-

presence time when the IJ ordered him removed, and he

indisputably satisfied § 1229c(b)(1)(A)’s physical-presence

requirement. The agency therefore wrongly (though at the

time, understandably) found Posos ineligible for voluntary

departure. Because both the IJ and the BIA denied Posos’s

application for voluntary departure solely on the basis of

inadequate physical presence, we leave it to the IJ to

consider whether Posos satisfies § 1229c(b)’s other

requirements.

V.

For these reasons, we grant in part and deny in part

Posos’s petition for review and remand to the agency to

make further findings and conclusions about his eligibility

for voluntary departure.

18 POSOS-SANCHEZ V. GARLAND

PETITION GRANTED IN PART AND DENIED IN

PART; REMANDED. 4

4

In accordance with Federal Rule of Appellate Procedure 39(a)(4),

we award costs to Posos.