Baraket v. Holder
632 F.3d 56
| 2d Cir. | 2011Background
- Baraket, a lawful permanent resident from Tunisia/Germany, seeks cancellation of removal.
- He was admitted as LPR on May 11, 1996 and later denied admission as a returning LPR in 2003.
- In 2003–2004 he pleaded guilty to November 2003 grand larceny (Moral Turpitude).
- Acts underlying the offense occurred Oct–Dec 2001; conviction occurred Nov 2003.
- Stop-time rule §1229b(d)(1) ends continuous residence when the offense is committed or when certain other events occur.
- BIA had held in Perez that the date of commission controls; Baraket contends that ruling was dicta or should be reconsidered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the stop-time rule trigger for cancellation of removal? | Baraket argues Perez-like dicta; commission date should control | Stop-time triggers on commission of offense | Stop-time triggered on the date of commission of the predicate offense. |
| Is Perez controlling or distinguishable; should Chevron deference apply? | Baraket urges overruling Perez | Perez remains valid under prior circuit law | Court declines to overrule Perez or reach Chevron analysis; adheres to existing interpretation. |
| Are earlier dicta in Tablie permissible precedents to construe current rule? | Baraket asserts dicta; seeks different understanding | Earlier dicta do not control; later holdings bind | Court finds a binding holding that the stop-time rule triggers at commission. |
Key Cases Cited
- Zuluaga Martinez v. INS, 523 F.3d 365 (2d Cir. 2008) (stop-time triggered by commission, not conviction)
- Reid v. Gonzales, 478 F.3d 510 (2d Cir. 2007) (continual residence ends on commission date)
- Tablie v. Gonzales, 471 F.3d 60 (2d Cir. 2006) (premised on commission date; dicta acknowledged)
- Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999) (premier BIA decision recognizing stop-time on commission)