26 I. & N. Dec. 637
BIA2015Background
- Respondent is a Mexican national who entered US in 1990 and was served a 1998 notice to appear that was never filed with the court, so no removal proceedings commenced on that document.
- DHS filed a new notice to appear on September 1, 2004, and removed proceedings against respondent in that basis.
- Immigration Judge denied cancellation of removal in 2006, holding stop-time terminated by the 1998 notice to appear.
- Ninth Circuit remanded for reconsideration of respondent's eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- BIA interprets the stop-time rule under 8 U.S.C. § 240A(d)(1) as ending continuous residence/presence on the date a properly served notice to appear is served, if proceedings are initiated on that basis.
- Court sustains respondent’s appeal in part and remands for further proceedings to determine date of entry and other factual matters, applying the rule that the 1998 notice did not stop respondent’s continuous physical presence where no proceedings were commenced on that basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether stop-time ends on service of a notice to appear that was never used to commence proceedings. | DHS argues ‘a’ means any notice to appear, triggering stop-time. | Ordoaz-Gonzalez argues the statute's context shows stop-time ends only when proceedings are initiated on the charging document. | No; stop-time does not terminate on a non-prosecuted notice to appear. |
| Whether the statutory language supports treating a notice to appear as stop-time when proceedings are not commenced. | DHS contends text and purpose support broad stop-time effect. | Ordáz-Gonzalez emphasizes statutory ambiguity and case law limiting stop-time to proceedings initiated on that notice. | Yes; the court adopts narrower reading limiting stop-time to the notice used in the cancellation proceedings and not to an unused prior notice. |
Key Cases Cited
- Matter of Cisneros, 23 I&N Dec. 668 (BIA 2004) (stop-time relates to charging document in the cancellation proceedings)
- Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011) (stop-time timing; definitional link to section 239(a); not to alter end date of presence unless proceedings initiated)
- K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (U.S. 1988) (statutory interpretation requires plain meaning and context)
- Robinson v. Shell Oil Co., 519 U.S. 337 (1987) (interpret statute by language, context, structure)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (statutory interpretation should fit entire regulatory scheme)