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Quebrado Cantor v. Garland: How the Ninth Circuit Closed a Stop-Time Loophole

A published Ninth Circuit decision Novo Legal Group argued and won — and what it teaches about deficient Notices to Appear, the stop-time rule, and who is still eligible for cancellation of removal.

William Kenzo Nakamura U.S. Courthouse in Seattle — the Ninth Circuit courthouse where Quebrado Cantor v. Garland was argued on August 30, 2021.

Snapshot

CourtU.S. Court of Appeals for the Ninth Circuit
CitationQuebrado Cantor v. Garland, 17 F.4th 869 (9th Cir. 2021); No. 19-73085
FiledNovember 3, 2021 (FOR PUBLICATION)
ArguedAugust 30, 2021, Seattle, Washington
PanelHawkins, McKeown, and Gould, Circuit Judges. Opinion by Judge McKeown.
OutcomePetition for review GRANTED; remanded to the Board of Immigration Appeals
FavorabilityWin (remand)
Counsel for petitionerLuis Cortes Romero (argued), Novo Legal Group PLLC, Kent, Washington; Elaine Ruth Fordyce, Law Office of Shara Svendsen PLLC, Mill Creek, Washington.
Read the opinionNinth Circuit official PDF
Oral argument audioNinth Circuit recording (Aug. 30, 2021)

Why this case matters

A defective Notice to Appear — the kind of NTA that left the time or place of the hearing blank — does not start — and does not stop — the ten-year clock that governs eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The Supreme Court said that in Pereira v. Sessions (2018) and again in Niz-Chavez v. Garland (2021). After both of those decisions, the government tried a different move in our client's case: the agency argued that even if the NTA itself never triggered the stop-time rule, the final order of removal later issued in the case did.

The Ninth Circuit, in a published opinion Luis Cortes Romero argued for Novo Legal Group, rejected that move. A final order of removal is not one of the two statutory triggers Congress listed in the stop-time rule. The court granted the petition for review and remanded the case to the Board of Immigration Appeals.

That holding is the load-bearing piece of Quebrado Cantor v. Garland, and it is the reason this page exists. If you are looking at a cancellation-of-removal denial — your own, a family member's, or a client's — that turned on a final order of removal "stopping the clock," the doctrine here may matter. It is not a guarantee of any outcome. It is one published Ninth Circuit holding on one specific question, decided on the facts of one specific case. Read on for what it actually says.

If you are evaluating Novo Legal Group for an appellate or removal-defense matter — schedule an honest case review or call (888) 746-5245. We tell you what the case actually looks like, including what we cannot promise.

A published Ninth Circuit decision argued by Novo Legal Group

Quebrado Cantor v. Garland is the firm's first verified published Ninth Circuit decision under the Novo Legal Group caption. It was argued — not submitted on the briefs — by Luis Cortes Romero on August 30, 2021, in Seattle, and the panel filed its published opinion on November 3, 2021. Elaine Ruth Fordyce of the Law Office of Shara Svendsen PLLC, in Mill Creek, Washington, was co-counsel on the briefing.

We name that distinction — argued, not submitted — because it is rare and because conflating the two would be inaccurate. Most appellate cases are submitted on the briefs; oral argument is reserved for cases the court wants to hear out loud. Quebrado is one of those.

We also name Elaine Ruth Fordyce because she is named on the published opinion. The counsel line on the court's PDF reads, verbatim:

Luis Cortes Romero (argued), Novo Legal Group PLLC, Kent, Washington; Elaine Ruth Fordyce, Law Office of Shara Svendsen PLLC, Mill Creek, Washington; for Petitioner.

Novo Legal Group was not sole counsel. The page below explains the case, not the litigation team's interpersonal dynamics — but the credit on the brief is the credit on the brief, and we name it as filed.

The facts

Domingo Quebrado Cantor is a citizen of Mexico who entered the United States without inspection in 2006. In 2011 — about five years into his presence in the country — the Department of Homeland Security served him with a Notice to Appear. The document did one thing the statute requires but skipped another: it told him he had to appear in immigration court, but it left the time and place of the proceedings blank. DHS sent a separate notice later with the date, time, and location.

Mr. Quebrado Cantor went to court. He conceded that he was removable. He applied for asylum and, in the alternative, asked for voluntary departure; he was also pursuing DACA at the time. The immigration judge denied asylum and ordered him removed if he failed to depart voluntarily. The Board of Immigration Appeals affirmed. The Ninth Circuit denied his original petition for review.

Then, in 2018, the Supreme Court decided Pereira v. Sessions — the case that first held a Notice to Appear missing the hearing time or place was not a "notice to appear" within the meaning of the statute, and so could not trigger the stop-time rule. Mr. Quebrado Cantor moved to reopen his case before the BIA so that he could apply for cancellation of removal — relief that, by the time of his motion, his roughly twelve years of physical presence facially supported. The BIA denied the motion to reopen. The reason was not that the NTA had triggered the stop-time rule; the BIA conceded the defective NTA, after Pereira, did not. The reason was a different one: the BIA held that his continuous-physical-presence clock had instead been stopped by the entry of his final order of removal.

That is the holding the case went up on. Not whether the NTA was defective — the agency conceded that. Whether a final order of removal, all by itself, was enough to stop the clock.

What was at stake — the statutory framework

Cancellation of removal and the ten-year clock

For a long-time resident who is not a lawful permanent resident — what immigration practitioners call "non-LPR cancellation" — the Immigration and Nationality Act offers a narrow path off a removal order. Under 8 U.S.C. § 1229b(b)(1), a non-citizen can ask the immigration judge to cancel removal if they meet four requirements. The first is the one Quebrado Cantor turned on: ten years of continuous physical presence in the United States before the date of the application.

The clock starts when the person enters the country. The statute then specifies how the clock can be cut off. That cut-off rule has a name.

The stop-time rule, 8 U.S.C. § 1229b(d)(1)

The stop-time rule is short. The clock on continuous physical presence is "deemed to end" at the earlier of two events. Subsection (A) — service of a Notice to Appear under § 1229(a). Subsection (B) — the commission of certain offenses referenced in INA § 212(a)(2) — broadly, the CIMT and controlled-substance grounds — that render a person inadmissible or removable. That trigger has its own categorical-approach case law and is not the subject of Quebrado Cantor.

Two events. Not three. That economy of language is the entire point of the Quebrado Cantor holding.

The deficient NTA

A statutorily compliant Notice to Appear has to tell the non-citizen, in writing, the nature of the proceedings, the legal authority for them, the conduct alleged, the charges, the right to counsel, and — important here — the time and place of the proceedings. That last requirement comes from 8 U.S.C. § 1229(a)(1)(G)(i).

The NTA DHS served on Mr. Quebrado Cantor in 2011 left the time and place blank. The follow-on notice that supplied that information was a separate document. After Pereira (2018) and Niz-Chavez (2021), the Supreme Court had made clear that this defect was not curable by sending the missing information later: the "single document" containing all the § 1229(a) information has to be the NTA — not a multi-letter stitched-together approximation of one.

The government's "final order" theory

The agency, in Quebrado Cantor, accepted all of that. Where it dug in was the next step. Even if the defective NTA did not trigger subsection (A) of the stop-time rule, the BIA said, the eventual final order of removal that issued years later did. By the BIA's logic, once an immigration judge ordered Mr. Quebrado Cantor removed (and the BIA affirmed and the Ninth Circuit's original petition for review was denied), his clock was stopped — making him ineligible for cancellation when he came back asking to apply for it after Pereira.

That is the theory the Ninth Circuit had to confront.

The argument Luis Cortes Romero made

The petitioner's position was, in plain English, this: the statute lists two events that stop the clock, and a final order of removal is not one of them. Congress wrote the rule narrowly. Pereira and Niz-Chavez had already held that a defective NTA does not satisfy subsection (A). And the criminal-conviction trigger under subsection (B) was not implicated — there was no relevant criminal conviction in Mr. Quebrado Cantor's record. The government's "final order" theory was therefore not a reading of the statute; it was an addition to it.

That argument lives in the line of cases running through Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). Pereira held that a putative NTA missing the time or place of the proceedings is not a "notice to appear under section 1229(a)" and so cannot trigger the stop-time rule. Niz-Chavez held that the government cannot cure the defect by sending the missing information in a follow-on notice — the statute requires "a single document" containing all the § 1229(a) information. Together those two decisions stood for the proposition that the document-service trigger is real, narrow, and unforgiving.

The petitioner's argument extended that logic by one more step. If the document-service trigger has to be read by its terms, so does the rest of the stop-time rule. The text lists two triggers. A final order of removal is not one of them. The court should not write a third.

That is the argument the panel adopted.

The decision

The Ninth Circuit granted the petition for review and remanded the case to the Board of Immigration Appeals. The panel was Judges Michael Daly Hawkins, M. Margaret McKeown, and Ronald M. Gould. Judge McKeown wrote the opinion.

The court's reasoning rests on the text of the stop-time rule. From the opinion (p. 5):

By statute, nonpermanent residents cease to accrue physical presence (1) once they are "served a notice to appear" or (2) if they commit certain crimes. ... By its terms, however, the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither. Because the BIA's decision was contrary to the text of the statute, we grant the petition and remand to the BIA for further proceedings.

On the deficient-NTA question, the panel applied Pereira and Niz-Chavez directly (p. 10):

We know from Pereira and Niz-Chavez that subsection (A) has not been triggered. The first notice Quebrado received "failed to specify the date and time of [his] removal proceedings." And the second notice, which informed Quebrado of the date and time of his removal proceeding, did not cure the government's failure to provide him with "'a' single document" containing "all the information Congress has specified."

The opinion closes with a line the panel borrowed from Niz-Chavez, framing why the textual analysis matters in immigration cases specifically:

If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

The disposition, on the final page of the slip opinion, is two words: PETITION GRANTED and REMANDED.

What the remand means in practice: the case went back to the BIA to be reconsidered without the "final order stopped the clock" reasoning. The Ninth Circuit did not order any particular result on remand. It removed the legal ground the BIA had relied on and sent the case back for further proceedings.

Timeline of how the stop-time rule applies after Pereira, Niz-Chavez, and Quebrado Cantor v. Garland: a 2006 entry begins the continuous-presence clock; a 2011 deficient NTA does not trigger stop-time under Pereira/Niz-Chavez; a 2014–2016 final order of removal does not trigger stop-time either under Quebrado Cantor; after Pereira (2018) a motion to reopen can pursue cancellation eligibility because the ten-year clock has not been stopped.
Figure: How the stop-time rule applies after Pereira, Niz-Chavez, and Quebrado Cantor v. Garland.

What this case shaped

Quebrado Cantor is part of a doctrinal arc. Pereira and Niz-Chavez are the Supreme Court ends of that arc. Quebrado is the Ninth Circuit holding that closes a particular loophole the government had tried to open in the space between them — the argument that, even if the NTA does not trigger stop-time, the final order of removal will.

Several things about the case are worth being precise about.

First, the holding is about the document-service trigger and the structural list of triggers in the statute. It is not about the separate criminal-conviction trigger under 8 U.S.C. § 1229b(d)(1)(B). That trigger has its own body of case law and operates on a different set of facts (a qualifying criminal conviction, not a procedural defect in the charging document). Treating Quebrado as if it controlled questions about the criminal-conviction trigger would be a misreading.

Second, the holding controls in the Ninth Circuit. The Ninth Circuit covers Washington, Oregon, California, Arizona, Nevada, Idaho, Montana, Alaska, and Hawaii. Outside those states, the treatment of materially similar arguments varies. The Tenth Circuit, in particular, has rejected stop-time and NTA-defect arguments on procedural grounds in cases like Robles-Garcia v. Barr — a published 2019 Tenth Circuit decision Aaron Elinoff argued before the formation of Novo Legal Group, while at his predecessor practice. (The procedural-exhaustion ground in Robles-Garcia has since been abrogated by Santos-Zacaria v. Garland, 598 U.S. 411 (2023), but the substantive cancellation-ineligibility holding stands.) Those Tenth Circuit results are part of the firm's record too, and they are part of how a national appellate practice has to be honest about what a Ninth Circuit win does and does not control.

Third, the decision is now part of the textual-reading-of-the-stop-time-rule line. Other courts and other panels read it for the proposition that the stop-time rule's list of triggers is exclusive, and that the agency's attempts to read more into the statute will be tested against its plain text. The panel's adoption of Niz-Chavez's "square corners" framing — that the government must turn square corners when dealing with the people it is trying to remove — is the rhetorical anchor for that reading.

What this case does NOT mean

This section is required on every case-detail page and the rules in it are not boilerplate.

  • Past results do not guarantee future outcomes. That is a Colorado Rules of Professional Conduct 7.1 statement, not a soft hedge. Every cancellation-of-removal case turns on its own facts — the petitioner's record, the charging document, the timing of motions, the standard of review, the panel, and the immigration judge below. Quebrado Cantor is one published Ninth Circuit holding on one specific question. It is not a guarantee that any reader of this page will have a similar outcome.
  • The holding controls in the Ninth Circuit. Outside the Ninth Circuit, similar arguments may or may not work, depending on how the local circuit reads the stop-time rule and how it treats Pereira and Niz-Chavez. The Tenth Circuit (where our Denver office practices), the Fifth Circuit, the Eleventh Circuit, and others have their own bodies of case law on these issues, and not all of them line up with Quebrado. The firm has won and lost stop-time-adjacent matters in the Tenth Circuit; we are honest about both, and our hub library names the losses as losses.
  • The case does not address the criminal-conviction trigger of the stop-time rule. A reader whose situation involves a qualifying criminal conviction is in a different doctrinal space; Quebrado's reasoning does not directly answer questions in that space.
  • The case was decided on a motion to reopen after the agency had already issued a final order. The procedural posture — motion to reopen after a Pereira-style intervening change in law — has its own requirements (timeliness, jurisdiction, the "sua sponte" framework, equitable tolling). Those requirements are not the subject of this opinion, and they are an independent set of issues every case in this posture has to address.
  • This page is general information, not legal advice for any individual case. Whether the doctrine in Quebrado Cantor helps a particular reader depends on facts a lawyer would have to review with that reader directly.

What this means for people in removal proceedings (general background, not advice)

A reader at this page is usually somewhere in one of three positions. The plain-English background below describes how the Quebrado Cantor holding interacts with each. None of this is legal advice; it is doctrinal context to help a reader understand what kind of facts make a stop-time question a real legal question, and not the end of the road.

If the Notice to Appear was missing the hearing date or place

After Pereira and Niz-Chavez, a Notice to Appear that left the time or place of the hearing blank is not, in the Ninth Circuit, a document that triggers the stop-time rule. The government's later attempt to supply the missing information in a separate notice does not cure the defect. The question of whether the clock was ever stopped is, on those facts, a live legal question — not a settled one.

If a final order of removal was treated as "stopping the clock"

After Quebrado Cantor, in the Ninth Circuit, a final order of removal is not one of the events that stops the continuous-physical-presence clock under 8 U.S.C. § 1229b(d)(1). The agency's attempt to use a final order in that way is not consistent with the text of the statute as the Ninth Circuit reads it.

If a federal petition for review or motion to reopen is on the table

A motion to reopen in front of the Board of Immigration Appeals — or a petition for review in front of the federal circuit — is the procedural vehicle by which the kind of argument that worked in Quebrado Cantor gets in front of a court at all. Those vehicles have their own rules. They have deadlines. They have jurisdictional requirements. They have specific showings a moving party has to make. The point is not that the path is easy. The point is that there is one, and that the Ninth Circuit has now closed the door on at least one of the government's arguments against it.

A reader in any of these positions who wants to understand whether their facts support an argument like the one in Quebrado Cantor needs the help of a lawyer who works in this area. That is what the conversation below is for.

The attorneys who handled this case

Luis Cortes Romero — argued for the petitioner

Luis Cortes Romero, partner at Novo Legal Group, who argued Quebrado Cantor v. Garland before the Ninth Circuit.
Luis Cortes Romero — Partner, Novo Legal Group. Argued Quebrado Cantor v. Garland (9th Cir. 2021).

Luis Cortes Romero is a Partner at Novo Legal Group. He argued Quebrado Cantor v. Garland before the Ninth Circuit on August 30, 2021, in Seattle, while at Novo Legal Group PLLC, Kent, Washington. The counsel line on the official opinion reads: "Luis Cortes Romero (argued), Novo Legal Group PLLC, Kent, Washington."

His appellate footprint also includes co-counsel work on the DACA Recipient Respondents' merits brief in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020) — the Supreme Court case that held the 2017 DACA rescission was arbitrary and capricious. Theodore B. Olson was counsel of record and argued Regents; Luis Cortes Romero was on the merits brief and at counsel table. Read his bio: Luis Cortes Romero.

Elaine Ruth Fordyce — co-counsel on briefing

Elaine Ruth Fordyce of the Law Office of Shara Svendsen PLLC, in Mill Creek, Washington, was co-counsel on the petitioner's briefing. She is credited on the counsel line of the published opinion. Novo Legal Group has no current affiliation with the Law Office of Shara Svendsen PLLC; the credit on this page is a factual citation of the counsel block as filed.

About the page author

The page author and reviewer is Aaron Elinoff, Founding Attorney at Novo Legal Group. Aaron did not appear on the Quebrado Cantor briefs or argument; his role on this page is editorial and supervisory. (Aaron's own Tenth Circuit appellate work — including argument in Robles-Garcia v. Barr before the merger that formed Novo Legal Group — appears separately in the firm's case library.) Read his bio: Aaron Elinoff.

There is a particular kind of immigration case that does not get decided in the immigration court room. It gets decided in the briefing in front of the Board of Immigration Appeals, and then again in front of a federal circuit panel, after the agency has already said no.

Our firm has stood in those rooms. Sometimes we have won. Sometimes we have lost. Quebrado Cantor is the win we argued in front of the Ninth Circuit on the stop-time question. Robles-Garcia v. Barr — also Tenth Circuit, also published, also argued — is a loss on a different cancellation-eligibility question, decided two years earlier at a predecessor firm. We name both. The honest version of an appellate practice is one that names the wins as wins and the losses as losses and explains what each one teaches.

If a deficient NTA or a stop-time issue is part of your case, or your family member's, or your client's — we are willing to look at it. We will tell you what the facts actually support. We will not tell you what they do not.

Talk to our appellate team

Schedule an honest case review — or call the main intake line at (888) 746-5245.

For referring attorneys with a viable petition for review or motion-to-reopen posture: the same intake line reaches our appellate team. We accept referrals on cancellation-of-removal, NTA-defect, and stop-time matters in the Ninth and Tenth Circuits.

Read the opinion

The official Ninth Circuit PDF is the source of record. Every quotation on this page can be verified against it.