Ka Cheung v. Holder
2012 U.S. App. LEXIS 9054
| 1st Cir. | 2012Background
- Cheung, a Hong Kong native, entered U.S. on Oct 19, 1999 under an H‑1B visa and stayed past Oct 9, 2004 while pursuing adjustment of status; adjustment petition was approved June 13, 2005; a 2008 child was born; in Aug 2009 Cheung's wife withdrew the petition; DHS served a Notice to Appear on Oct 14, 2009 alleging removability for misrepresentation initially, which was later amended by Form I‑261 in June 2010 to allege overstaying; Cheung admitted overstaying and removability at IJ hearing; IJ denied cancellation of removal; BIA affirmed; Cheung contends the stop-time rule does not apply to the later substituted charge and seeks cancellation of removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stop-time rule applies when the NTA is amended with a substituted charge. | Cheung: stop-time not triggered by original NTA since later charge substituted. | Cheung argues the original NTA remained the operative document; amendment invalidates stop-time. | No error; amended NTA constitutes continued removal proceedings triggering stop-time. |
| Whether the I‑261 amendment created a new NTA requiring fresh stop-time calculation. | Cheung: I‑261 is a new NTA; therefore, ten-year presence not yet expired. | I‑261 is an amended form, not a new NTA; government may add/substitute charges. | I‑261 was an amendment, not a new NTA; stop-time remained based on Oct 14, 2009 service. |
| Whether the government’s substitution of charges forecloses eligibility for cancellation of removal. | Cheung asserts substitution without proper notice undermines eligibility. | Government properly amended charges; Cheung received notice and opportunity to respond. | Cheung ineligible for cancellation; record supports substitution and timing rule. |
Key Cases Cited
- Magasouba v. Mukasey, 543 F.3d 13 (1st Cir. 2008) (government may lodge additional or substituted charges at any time during proceedings)
- Vasquez v. Holder, 635 F.3d 563 (1st Cir. 2011) (stop-time accrual ends on service of NTA)
- Idy v. Holder, 674 F.3d 111 (1st Cir. 2012) (review of IJ/BIA factual determinations; standard of review for combined decisions)
- Villa-Londono v. Holder, 600 F.3d 21 (1st Cir. 2010) (ten-year continuous presence standard; substantial evidence review)
- Bernal-Vallejo v. I.N.S., 195 F.3d 56 (1st Cir. 1999) (factors in evaluating continuous presence)
- De Faria v. I.N.S., 13 F.3d 422 (1st Cir. 1993 (per curiam)) (principle on government charging practices in NTA)
- Seng v. Holder, 584 F.3d 13 (1st Cir. 2009) (distinguishes law on factual determinations from legal questions)