BIA HOLDS THAT THE “STOP-TIME” RULE OF INA § 240A(d)(1), ENDING A CANCELLATION APPLICANT’S PERIOD OF CONTINUOUS RESIDENCE WHEN HE OR SHE IS SERVED WITH A NOTICE TO APPEAR, IS NOT TRIGGERED WHEN ONE IS SERVED WITH A NOTICE TO APPEAR BUT IS NEVER PLACED IN PROCEEDINGS ON THE BASIS OF THAT DOCUMENT.
On July 24, 2015, the Board of Immigration Appeals (BIA) ruled on appeal of an applicant for cancellation of removal who was served with a Notice to Appear (NTA) in 1998 but was never placed in removal proceedings because that document was never filed with the Immigration Court. Over 6 years later, a second NTA was served on him and the respondent sought to apply for cancellation before the Immigration Judge (IJ), who ruled that the “stop-time” rule served to terminate the applicant’s physical presence as of 1998 (thus preventing him from proving the accrual of 10 years of continuous physical presence and thereby establishing eligibility for cancellation). Finding that for these purposes an NTA is not sufficient “written notice” under INA § 239(a) absent the actual commencement of proceedings, the BIA disagreed with DHS’s contention that “any” NTA serves to “stop-time”, especially “considering the typical posture of removal proceedings and the overall context of the statute.” This would have granted “stop-time” effect to NTAs that are invalid or otherwise insufficient to support a removal charge; taken to its logical conclusion, the BIA found this argument would grant “stop-time” effect to NTA’s against which a respondent successfully defends in a subsequent proceeding, something Congress never intended. Instead, citing to Matter of Cisineros, 23 I & N Dec. 668 (BIA 2004), which held that the notice mentioned in § 240A(d)(1) of the Act refers only to an NTA served in the same proceeding in which a respondent applies for cancellation, the Board interpreted § 240A(d)(1) as terminating continuous physical presence or continuous residence as long as proceedings are actually initiated on the basis of that document, sustained the appeal, and remanded the case to the IJ. Matter of Ordaz-Gonzalez, 26 I & N Dec. 637 (BIA 2015).
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