On December 2, 2015, the Board of Immigration Appeals (BIA or Board) decided how to calculate continuous physical presence for special rule cancellation of removal under NACARA where a respondent enters without inspection, thus becoming inadmissible as one present in the U.S. without being admitted, and then later is convicted of a crime, becoming separately inadmissible for that violation, i.e., determined when the 10-year period starts to run. The BIA held that because the NACARA special rule cancellation regulation at 8 CFR § 1240.66(c)(1) closely tracks the framework of the old suspension of deportation statute under former INA § 244(a)(2), which the majority of federal circuit courts of appeal interpreted to set forth either a 7- or 10-year continuous physical presence “testing period” to judge an applicant’s character, continuous physical presence should be measured from the most recently incurred ground of removal as under the former suspension regime. Matter of Castro-Lopez, 26 I&N Dec. 693 (BIA 2015).
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