Nelson v. Attorney General
685 F.3d 318
| 3rd Cir. | 2012Background
- Nelson is a Jamaican native who became a lawful permanent resident in 1994.
- In 1999 he pled guilty in New York to possession of marijuana (about 16 ounces).
- He briefly traveled to Canada in 2000 and reentered, thereafter living in the U.S. without interruption.
- Nelson was arrested in 2006 in New Jersey for attempting to possess with intent to distribute marijuana and was convicted in 2008.
- DHS issued a Notice to Appear in 2008 alleging removability; that was superseded by a 1999 conviction-based charge.
- The IJ denied cancellation of removal for lack of seven years’ continuous residence, invoking the stop-time provision; the BIA affirmed, rejecting Nelson’s restart argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reentry after a clock-stopping offense restarts continuous residence. | Nelson argues reentry creates a new seven-year period. | BIA/AG argue no restart; clock ends under stop-time. | Reentry does not restart; clock not reset. |
| Whether the text 'after having been admitted in any status' unambiguously restarts the period after reentry. | Yes; seven years after the reentry admission should qualify. | No; language not unambiguous. | Language not unambiguous; defer to agency interpretation. |
| Whether the BIA reasonably applied Mendoza-Sandino/Okeke to Nelson’s case. | Okeke supports restart after reentry. | BIA correctly rejected broader restart rule; Okeke limited. | BIA's interpretation reasonable; Nelson not entitled to restart. |
Key Cases Cited
- Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005) (reentry effects on continuous presence depend on context (cited for restart discussion))
- Briseno-Flores v. Attorney General, 492 F.3d 226 (3d Cir. 2007) (affirms deference to BIA on stop-time principles)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (S. Ct. 1999) (Chevron deference framework applied to INA interpretations)
- Yusupov v. Attorney General, 518 F.3d 185 (3d Cir. 2008) (clarifies deference and interpretation of stop-time provisions)
- Sarango v. Attorney General, 651 F.3d 380 (3d Cir. 2011) (jurisdiction and standard of review for BIA decisions)