605 F. App'x 951
11th Cir.2015Background
- Kevon O’Garro, a citizen of Trinidad and Tobago, applied for cancellation of removal under INA § 240A(b)(1) based on at least 10 years of continuous physical presence in the U.S.
- The government served an NTA (notice to appear) that did not specify the time and place of the initial removal hearing.
- The BIA and IJ held that service of that NTA triggered the INA § 240A(d)(1) "stop-time" rule, ending O’Garro’s accrual of continuous physical presence before he reached 10 years.
- O’Garro argued § 239(a)(1) (8 U.S.C. § 1229(a)(1)) is unambiguous and requires a notice containing time and place to trigger the stop-time rule, so his ten-year period continued until a later notice of hearing that included the time/place.
- The Eleventh Circuit reviewed the BIA’s legal interpretation de novo (retaining jurisdiction over legal questions) and applied Chevron deference to the BIA’s reasonable construction of an ambiguous statute.
- The court deferred to the BIA’s interpretation that an NTA served under § 1229(a) need not contain time and place to trigger the stop-time rule and denied O’Garro’s petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA lacking time/place stops continuous presence under the stop-time rule | O’Garro: § 1229(a)(1) is unambiguous; time/place required, so stop-time not triggered until notice of hearing | Government/BIA: § 1229(a) identifies the document type; time/place need not be included to trigger stop-time | Court: BIA’s interpretation reasonable under Chevron; NTA without time/place can trigger stop-time |
| Standard of review for BIA legal interpretation | O’Garro: challenges statutory reading as unambiguous law | Government: BIA entitled to Chevron deference on ambiguous statutes | Court: legal questions reviewed de novo; BIA receives Chevron deference for permissible constructions |
Key Cases Cited
- Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (scope of reviewing BIA decisions)
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir. 2009) (review of IJ to extent BIA adopts IJ reasoning)
- Alhuay v. U.S. Att’y Gen., 661 F.3d 534 (11th Cir. 2011) (jurisdiction retained for legal questions despite § 1252(a)(2)(B)(i))
- Nreka v. U.S. Att’y Gen., 408 F.3d 1361 (11th Cir. 2005) (de novo review of legal determinations)
- Tefel v. Reno, 180 F.3d 1286 (11th Cir. 1999) (discussing the stop-time rule)
- Aguirre-Aguirre v. INS, 526 U.S. 415 (1999) (BIA entitled to deference in interpreting ambiguous statutory terms)
- Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) (framework for agency deference)