“Stop-Time” Rule Not Triggered If Removal Case Was Not Commenced

In a recent case regarding "cancellation of removal”, the Board of Immigration Appeals  ruled that the language and structure of section 240A(d)(1) of the INA do not support giving “stop-time” effect to a notice to appear (NTA) that was served on an alien but was never used to commence proceedings. Consequently, a NTA served on the respondent in 1998 did not terminate the respondent’s continuous physical presence as a requirement for his application for cancellation of removal. 

In Matter of ORDAZ, the respondent is a native and citizen of Mexico who first entered the United States in 1990. On April 2, 1998, he was served with a NTA which advised him to appear before an Immigration Judge. However, because the notice was not filed with the Immigration Court in accordance with the regulation, removal proceedings were never formally started. On September 1, 2004, the Department of Homeland Security (DHS) served him with a second NTA and commenced the proceedings in the case. The respondent then applied for cancellation of removal, claiming that he has a strong cancellation application since he had continuously resided in the United States for ten years. The Immigration Judge denied the application, holding that the “stop-time” rule broke the period of continuous physical presence when he was served with the first NTA in 1998.

Foreign nationals who are deportable from the United States may still be able to stay if are eligible for some form of relief from removal. “Cancellation of removal” is one such relief application. The main purpose of cancellation of removal is to allow longtime residents of the U.S. with family ties and equities a way to remain here despite their transgressions. When a non-resident of the U.S. applies for cancellation, he must establish that he  has continuously resided in the United States for at least ten (10) years.  According to the “stop time” rule, accrual of the continuous physical presence stops when the non-resident was served with an NTA, or when the individual commits a crime that triggers the stop-time rule.

The court first reasoned that the language and structure of section 240A(d)(1) of the Act do not support giving “stop-time” effect to a NTA that was served on a foreign national but was never served on the Immigration Court to start proceedings.  The reference to a NTA is merely “definitional in nature", which does not break a foreign's period of continuous residence or physical presence. The commencement of proceedings is a separate issue from the service of the notice to appear. The “stop-time” rule is triggered by the commencement of proceedings, not the service of the NTA. Perphaps more importantly, the BIA is concerned about the lack of opportunity for a foreigner to contest the charges in the NTA if removal proceedings were not commenced.  Such a result would go against the Congressional goals in creating cancellation of removal.

This is an important decision as it is not unusual for the Government to have served the NTA of a foreigner without actually commencing removal proceedings with the Immigration Court.  In these situations, the foreigner will be able to continue accruing time to meet the ten-year continuous physical presence requirement for cancellation of removal.