Rachak v. Attorney General of the United States, 2013 U.S. App. LEXIS 17480

Tarik Rachak, a Moroccan lawful permanent resident since 2002, had a 2006 Pennsylvania marijuana offense and a 2011 conviction for possession of cocaine and drug paraphernalia.
Rachak was placed in Pennsylvania’s Accelerated Rehabilitative Disposition in 2006 but was later removed from the program and pled guilty in 2011 to the 2006 charge.
DHS charged Rachak as removable in September 2011 under 8 U.S.C. § 1227(a)(2)(B)(i) based on the July 2011 controlled-substance conviction.
Rachak sought continuances while pursuing a Pennsylvania PCRA collateral attack on his 2011 conviction; the IJ denied further continuances and ordered removal, finding Rachak ineligible for cancellation of removal because his continuous-residence “clock” was stopped by the 2006 offense.
The BIA affirmed the denial of continuance and the stop-time determination. Rachak petitioned for review challenging (1) statutory eligibility for cancellation (stop-time rule) and (2) the denial of a continuance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2006 controlled-substance offense stopped accrual of the 7-year continuous-residence period under § 1229b(d)(1)(B)	Rachak: 2006 offense should not stop the clock because a statutory waiver (§ 1182(h) for small-quantity marijuana) was available	Government: 2006 offense rendered him inadmissible under § 1182(a)(2) and thus triggered the stop-time rule; absence of a waiver application is dispositive	Held: Court has jurisdiction to resolve this legal question and affirms BIA — the 2006 offense stopped the clock; Rachak’s failure to seek the waiver before the agency is fatal.
Whether the denial of a continuance is reviewable by the court	Rachak: IJ and BIA erred in denying continuance while PCRA appeal was pending	Government: Denial of continuance is a discretionary decision not raising a legal or constitutional issue	Held: No jurisdiction to review the discretionary denial of a continuance under § 1252(a)(2)(C); petition dismissed in part.

Roye v. Att’y Gen. of U.S., 693 F.3d 333 (3d Cir.) (jurisdictional standard for criminal-alien petitions)
Baraket v. Holder, 632 F.3d 56 (2d Cir.) (interpretation of § 1229b(d)(1) as a question of law)
Khan v. Att’y Gen. of U.S., 448 F.3d 226 (3d Cir.) (continuance denials are discretionary; scope of review explained)
Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir.) (discretionary decisions are not reviewable under § 1252(a)(2)(D))
Jarbough v. Att’y Gen. of U.S., 483 F.3d 184 (3d Cir.) (limitations on review of factual and discretionary determinations)
Briseno-Flores v. Att’y Gen. of U.S., 492 F.3d 226 (3d Cir.) (standard of review for stop-time interpretation)
Hanif v. Att’y Gen. of U.S., 694 F.3d 479 (3d Cir.) (review of BIA merits decision)
Paredes v. Att’y Gen. of U.S., 528 F.3d 196 (3d Cir.) (pendency of collateral attack does not negate finality for immigration purposes)