NELSON, 25 I&N Dec. 410 (BIA 2011)

Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704
410
Matter of Michael Alexander NELSON, Respondent
Decided February 17, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Once an alien has been convicted of an offense that stops the accrual of the 7-year period
of continuous residence required for cancellation of removal under section 240A(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006), section 240A(d)(1) of the Act
does not permit such residence to restart simply because the alien has departed from, and
returned to, the United States.
FOR RESPONDENT: Whitney Elliott, Esquire, Edison, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Alan Wolf, Senior Attorney
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
FILPPU, Board Member:
This case concerns the question whether under the “stop-time” rule
of section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(d)(1) (2006), the clock can be reset by an alien’s departure from, and
reentry to, the United States after a conviction for a crime that would otherwise
stop the accrual of continuous residence for purposes of determining eligibility
for cancellation of removal under section 240A(a) of the Act. We hold that
continuous residence cannot be restarted, at least in the absence of a waiver
of inadmissibility in regard to the conviction. We must also address whether
we are nevertheless constrained to reach a different outcome under the law
of the United States Court of Appeals for the Third Circuit, the jurisdiction
in which this case arises. Because we find that we are not so constrained,
we will dismiss the respondent’s appeal from the Immigration Judge’s
June 2, 2010, decision denying his application for cancellation of removal.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Jamaica who was admitted to the
United States as a lawful permanent resident on November 3, 1994. As the
Immigration Judge noted, the respondent testified that he visited Canada for
2 days in August 2000 and returned to the United States. Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704
1 The Immigration Judge denied the respondent’s request for an additional continuance
to seek post-conviction relief related to his 1999 conviction, and the respondent has not
challenged that determination on appeal.
2 The DHS did not appeal from that determination. However, both the DHS and the
respondent have filed motions based upon subsequent developments regarding the
respondent’s 2008 convictions. The DHS’s motion states that the respondent’s appeal has
been dismissed, while the respondent claims that a further appeal of his convictions has been
taken. In light of our disposition of this case, we need not resolve the issues raised in the
motions.
411
On April 9, 1999, the respondent was convicted of possession of marijuana
in violation of section 221.25 of the New York Penal Law, based on an offense
committed on or about February 20, 1999.1
He was also convicted of two
controlled substance violations in New Jersey on May 6, 2008.
On November 26, 2008, the respondent was served with a Notice to Appear
(Form I-862), which charged that he was removable pursuant to sections
237(a)(2)(A)(iii) and (B)(i) of the Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and
(B)(i) (2006), as an alien convicted of an aggravated felony and a controlled
substance violation. The Notice to Appear was factually predicated
on the respondent’s 1994 admission as an immigrant and on his 2008
controlled substance convictions in New Jersey. On September 8, 2009, the
Department of Homeland Security (“DHS”) issued a Form I-261 (Additional
Charges of Inadmissibility/Deportability), which added the respondent’s 1999
conviction as a factual allegation supporting his removability.
The Immigration Judge ruled that the respondent’s 2008 convictions were
not final for immigration purposes because they were on direct appeal
in New Jersey.2
However, she determined that the respondent was removable
under section 237(a)(2)(B)(i) of the Act as a result of his 1999 conviction. The
Immigration Judge also denied the respondent’s application for cancellation
of removal under section 240A(a) of the Act because he failed to establish the
requisite 7 years of continuous residence. Specifically, she found that the
respondent was admitted in 1994 and that under section 240A(d)(1) of the Act,
his period of continuous residence ended in 1999 when he committed the drug
offense that rendered him removable. In making this finding, the Immigration
Judge determined that the respondent was not permitted to start a new period
of continuous residence upon his reentry to the United States in 2000.
On appeal, the respondent does not contest the Immigration Judge’s finding
that he is removable under section 237(a)(2)(B)(i) of the Act. However,
he argues that the Immigration Judge erred in denying his application
for cancellation of removal based on her determination that he failed
to demonstrate that he “has resided in the United States continuously for
7 years after having been admitted in any status,” as required by section
240A(a)(2) of the Act. In this regard, the respondent does not dispute thatCite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704
3 We note that section 240A(d)(2) of the Act only relates to cancellation of removal under
sections 240A(b)(1) and (2) of the Act for aliens who are not lawful permanent residents.
It therefore has no direct application to the respondent’s request for cancellation of removal
under section 240A(a). Section 240A(d)(2) provides as follows:
(continued…)
412
he was convicted of an offense in 1999 that triggered the “stop-time” rule
under section 240A(d)(1). He nevertheless contends that he is entitled
to establish a new period of continuous residence, commencing upon his
reentry to the United States in 2000.
II. ANALYSIS
We agree with the Immigration Judge’s conclusion that under section
240A(d)(1) of the Act, the period of time the respondent was in the
United States after his conviction and subsequent reentry to this country
cannot be counted toward the accrual of the 7 years of continuous residence
required for cancellation of removal, since the clock does not start anew
simply because an alien departs and reenters the United States following the
commission of a triggering offense. Section 240A(d)(1), which sets forth the
“stop-time” rule, provides in pertinent part as follows:
Termination of Continuous Period
For purposes of this section, any period of continuous residence or continuous
physical presence in the United States shall be deemed to end (A) . . . when the alien
is served a notice to appear under section 239(a), or (B) when the alien has committed
an offense referred to in section 212(a)(2) that renders the alien inadmissible to the
United States under section 212(a)(2) or removable from the United States under
section 237(a)(2) or 237(a)(4), whichever is earliest.
As we noted in Matter of Mendoza-Sandino, 22 I&N Dec. 1236, 1240
(BIA 2000), “This provision clearly states that the continuous physical
presence or continuous residence ‘ends’ upon the occurrence of one of the
specified events, whichever is earliest.” We therefore held that an alien could
not accrue a new 7-year period of continuous physical presence for suspension
of deportation after the service of an Order to Show Cause, because section
240A(d)(1) of the Act provides for the termination of physical presence upon
service of a charging document.
In reaching this conclusion, we compared the language of section
240A(d)(1) to that of section 240A(d)(2), which relates to the treatment
of certain “breaks” in continuous physical presence resulting from brief
absences from the country.3
We found that in enacting these two provisions,Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704
(…continued)
Treatment of Certain Breaks in Presence
An alien shall be considered to have failed to maintain continuous physical
presence in the United States under subsections (b)(1) and (b)(2) if the alien has
departed from the United States for any period in excess of 90 days or for any periods
in the aggregate exceeding 180 days.
413
Congress distinguished between actions that “end” continuous physical
presence or residence and those that only temporarily interrupt the accrual
of continuous physical presence by absence from the country for a certain
period of time. Id. at 1240. Based on the language of both sections,
we concluded that the service of a charging document and the commission
of a specified crime were “terminating” events, after which continuous
physical presence or continuous residence could no longer accrue. Id.
at 1240-41.
Our interpretation of the statute was also supported by the legislative history
of section 240A(d) of the Act. We noted various congressional reports
in which the legislators recognized the difference between a temporary “break”
in continuous physical presence resulting from a brief departure and the events
that caused physical presence and residence to “terminate forever,” namely the
issuance of a charging document and the commission of a specified crime. Id.
at 1242-43. The legislative history also made it clear that the legislators
intended to remove the incentive for aliens to prolong their stay in this country
to become eligible for immigration benefits. With this in mind, we concluded
that it would be contrary to the intent of Congress to permit an alien to accrue
a new period of time after the occurrence of one of the terminating events
in section 240A(d)(1) of the Act.
Our decision in Matter of Mendoza-Sandino has been found by the
Third Circuit to be entitled to deference under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). Briseno-Flores
v. Att’y Gen. of U.S., 492 F.3d 226, 231 (3d Cir. 2007). In Briseno-Flores,
the court stated that “there is persuasive precedent to support” our
interpretation of the statute and cited rulings of other circuit courts that were
in agreement. Id. (citing Tablie v. Gonzales, 471 F.3d 60, 62 (2d Cir. 2006);
Peralta v. Gonzales, 441 F.3d 23, 25 (1st Cir. 2006)); see also Najjar
v. Ashcroft, 257 F.3d 1262, 1299-1330 (11th Cir. 2001); Ram v. INS, 243 F.3d
510, 517-18 (9th Cir. 2001); McBride v. INS, 238 F.3d 371, 377 (5th Cir.
2001); Afolayan v. INS, 219 F.3d 784, 789 (8th Cir. 2000). However, the court
noted that our reasoning had been questioned by the concurring opinion
in Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005), an earlier decision of theCite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704
4
In Matter of Cisneros, which, unlike this case, involved the question of accrual
of continuous physical presence after the service of a charging document, we distinguished
Matter of Mendoza-Sandino and held that the “stop-time” rule was not intended to extend
to charging documents issued in an earlier removal proceeding. We therefore held that
an alien who had been deported and accrued more than 10 years after returning to the
country could count that period of continuous physical presence to establish eligibility for
cancellation of removal under section 240A(b) of the Act in a subsequent removal
proceeding. Our ruling in that case, which was based on a different factual scenario than that
presented here, did not announce a broad proposition that reentries, legal or illegal, will
always restart the clock.
5 The opinion did not discuss the impact of former section 212(a)(23) of the Act,
8 U.S.C. § 1182(a)(23) (1982), on the substantive lawfulness of Okeke’s 1984 reentry
as a nonimmigrant following his controlled substance conviction. We express no opinion
on whether the respondent could have reset the “clock” had he obtained a waiver under
section 212(h) of the Act upon reentry, or had he been in new proceedings, following a prior
removal for his marijuana offense, after admission on a new visa issued with a waiver for the
offense.
414
Third Circuit on which the respondent relies as support for his arguments
on appeal.
The facts in Okeke differ from those in this case. The alien there entered
in 1981 as a nonimmigrant student, returned home, and then came back to the
United States in 1983. Upon reentry, he was arrested for possession
of marijuana, to which he pled guilty. He subsequently departed the country
and was readmitted on his student visa in 1983 and 1984. In 1997, he was
placed in proceedings and was charged with removability based on his failure
to maintain student status. Thus, unlike the respondent, he was not charged
on the basis of the commission of his crime.
The Third Circuit panel in Okeke issued three separate opinions. The
opinion of the court held that the alien was entitled to a new period
of continuous physical presence, commencing upon his reentry to the
United States. Specifically, it distinguished Matter of Mendoza-Sandino, both
on the facts and because it did not address the question whether a lawful
reentry after the commission of a triggering criminal offense restarts the clock,
relying instead on our decision in Matter of Cisneros, 23 I&N Dec. 668 (BIA
2004).4
Okeke v. Gonzales, 407 F.3d at 589-90. Although the judge in this
opinion found that reentry after a clock-stopping event such as the commission
of a crime started the clock anew under the circumstances of that case,
he specifically declined to express an opinion as to the outcome if the charging
document had alleged that Okeke was removable on the basis of his controlled
substance offense, rather than for the failure to maintain student status arising
only after he had made a lawful reentry. Id. at 590-91.5Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704
6 In its subsequent opinion in Briseno-Flores v. Attorney General of U.S., 492 F.3d at 231
n.6, the Third Circuit appeared to discount the concurring opinion in Okeke v. Gonzales.
415
The concurring opinion agreed with the result but interpreted our holding
in Matter of Cisneros differently and found Matter of Mendoza-Sandino
to be “incorrect.”6 Okeke v. Gonzales, 407 F.3d at 592-93 (Ambro, J.,
concurring). The dissent would have followed our decision in Matter
of Mendoza-Sandino and concluded that Okeke’s continuous physical presence
ended when he was convicted of a drug offense, because the clock could not
be restarted. Id. at 597.
We agree with the Immigration Judge that Okeke v. Gonzales is not binding
in this case. Since the respondent has been charged in the Notice to Appear
with the very crime that would terminate his continuous residence, the court’s
ruling, by its own terms, does not apply. Okeke v. Gonzales, 407 F.3d
at 590-91. Moreover, given the fractured nature of the decision in Okeke,
it would be difficult to ascertain a rationale that would be controlling outside
of the facts of that case. In any event, the Third Circuit’s more recent decision
in Briseno-Flores v. Attorney General of U.S., 492 F.3d at 231, found our
reasoning in Mendoza-Sandino to be reasonable and entitled to deference.
In this case, the respondent’s commission of the crime leading to his 1999
controlled substance conviction is a “stop-time” event for these removal
proceedings. The Notice to Appear factually referenced his 1994 admission,
and the Form I-261 specifically alleged his 1999 offense as support for the
charge that he is removable as a convicted alien. Moreover, there is no claim
that the respondent received a waiver in relation to his marijuana offense
that would have allowed him to effect a substantively lawful reentry after his
2000 trip to Canada. See section 101(a)(13)(C)(v) of the Act, 8 U.S.C.
§ 1101(a)(13)(C)(v) (2006) (providing that a returning lawful permanent
resident may be regarded as seeking admission if he has committed
an offense identified in section 212(a)(2) of the Act, 8 U.S.C. § 1182(a)(2)
(2006), and has not been granted a waiver or cancellation of removal); section
212(a)(2)(A)(i)(II) of the Act (providing that any alien who is convicted
of a controlled substance violation is inadmissible). We therefore conclude
that under our decision in Matter of Mendoza-Sandino, the clock could not
be reset by the respondent’s departure and return after his conviction. Any
other reading of section 240A(d)(1) of the Act that would allow an alien
to accrue a new period of continuous residence simply by departing and
reentering the United States following the commission of a triggering criminal
offense would undermine the intent of Congress, as expressed in the legislative
history of the statute.Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704
416
III. CONCLUSION
For the reasons discussed above, we conclude that the respondent’s criminal
offense in 1999 terminated his continuous residence in the United States under
section 240A(d)(1) of the Act. Consequently, the period of time after his
reentry to this country cannot be counted toward the accrual of the 7 years
of continuous residence required for cancellation of removal under section
240A(a). Therefore, the respondent is not statutorily eligible for that relief,
and his appeal will be dismissed.
ORDER: The appeal is dismissed.