Background

• Respondent (native of El Salvador) entered the U.S. without inspection in 1996 and has remained unlawfully since.
• In 2012 respondent was convicted in Maryland of possession of cocaine.
• DHS placed respondent in removal proceedings, charging inadmissibility for unlawful presence and for a controlled-substance conviction; IJ found removability on both grounds.
• Respondent applied for special rule cancellation of removal under NACARA; because of the drug conviction the IJ applied the heightened 10-year continuous physical presence standard in 8 C.F.R. § 1240.66(c).
• The IJ measured the 10-year period from respondent’s initial unlawful entry in 1996 and granted cancellation; DHS appealed, arguing the period should run from the most recent ground of removal (the 2012 conviction).
• The BIA concluded the regulation is ambiguous and, relying on prior suspension-of-deportation precedent, held continuous presence is measured from the most recently incurred ground of removal; remanded because respondent did not meet 10 years from 2012.

Issues

Key Cases Cited

• Fong v. INS, 308 F.2d 191 (9th Cir. 1962) (held 10-year period begins with first deportable act)
• Patsis v. INS, 337 F.2d 733 (8th Cir. 1964) (held 10-year period runs from last deportable act; characterized period as a probationary test)
• Gagliano v. INS, 353 F.2d 922 (2d Cir. 1965) (agreed with measuring from last deportable act where a deportable act occurred within the 10‑year period)
• Cuadra v. Gonzales, 417 F.3d 947 (8th Cir. 2005) (noting NACARA relief approximates suspension-of-deportation framework)
• Auer v. Robbins, 519 U.S. 452 (1997) (agency’s interpretation of its own regulation is controlling unless plainly erroneous or inconsistent)
• Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (limits on deference to agency interpretations)