Nelson cases on stop time rule 2011-2012


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Nelson cases on stop time rule 2011-2012

  1. 1. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT June 13, 20121.) Order granting Motion to No. 11-1654adopt Opinion as Precedent.2.) 3rd Circuit Precedent. MICHAEL ALEXANDER NELSON,3.) BIA Precedent. Petitioner__________________________________These decisions discuss the"stop-time" rule and involve v.the same individual alienrespondent cum petitioner. ATTORNEY GENERAL OF THE UNITED STATES, Respondent (Agency No. A044-843-940) Present: VANASKIE, BARRY and CUDAHY, Circuit Judges Motion by Respondent to Publish the Opinion Dated 05/22/2012. Respectfully, Clerk/pdb for smw _________________________________ORDER________________________________ The foregoing motion is GRANTED By the Court, /s/Maryanne Trump Barry Circuit Judge Dated: July 10, 2012 Smw/cc: Jeffrey L. Menkin, Esq. Kristen Sawicki, Esq. Richard H. Frankel, Esq. Jonathan OBoyle, Esq.
  2. 2. PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 11-1654 _____________ MICHAEL ALEXANDER NELSON, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent ______________ ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (Agency No. A044-843-940) ____________ Argued: April 19, 2012 ____________ Before: VANASKIE, BARRY and CUDAHY,* Circuit Judges (Opinion Filed: May 22, 2012) ____________Kristen Sawicki (Argued)Richard H. Frankel, Esq. (Argued)Drexel UniversityEarle Mack School of Law* Honorable Richard D. Cudahy, Senior Circuit Judge for theUnited States Court of Appeals for the Seventh Circuit, sittingby designation. 1
  3. 3. 3320 Market StreetPhiladelphia, PA 19104Counsel for PetitionerJeffrey L. Menkin, Esq. (Argued)United States Department of JusticeOffice of Immigration Litigation, Civil DivisionP.O. Box 878Ben Franklin StationWashington, DC 20044Counsel for Respondent ____________ OPINION OF THE COURT ____________BARRY, Circuit Judge Michael Nelson petitions for review of the decision ofthe Board of Immigration Appeals, which concluded that hehad not accumulated the seven years of continuous residencein the United States necessary to be eligible for cancellationof removal under 8 U.S.C. § 1229b. We will deny thepetition. I. Nelson is a native and citizen of Jamaica who wasadmitted to the United States as a lawful permanent residenton November 3, 1994. In early 1999, less than five years afterhis admission to the United States, Nelson pleaded guilty inNew York state court to possession of approximately 16ounces of marijuana (―the 1999 conviction‖). In August 2000, Nelson visited Canada for two days.Although his 1999 conviction rendered him inadmissible tothe United States, Nelson was nonetheless allowed to reenterthe country through a border checkpoint. Following his 2
  4. 4. reentry, he did not leave the United States again and livedhere without interruption. On November 16, 2006, Nelson was arrested in NewJersey after attempting to retrieve a package containing asubstantial amount of marijuana that had been mailed to aSears Auto Center. In May 2008, he was tried by a jury inNew Jersey state court and found guilty of attemptedpossession with intent to distribute marijuana in violation ofN.J.S.A. §§ 2C:5-1, 2C:35-5b(10), & 2C:35-7.1 (―the 2008convictions‖). He proceeded to challenge these convictionson direct appeal. On November 26, 2008, the Department of HomelandSecurity (―DHS‖) issued a Notice to Appear asserting thatNelson was removable because his 2008 convictionsconstituted aggravated felonies and controlled substancesoffenses pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i).The Immigration Judge (―IJ‖) originally found Nelsonremovable based on these convictions, but later withdrewthose findings after Nelson established that the convictionswere on direct appeal and thus were not ―final.‖ On September 8, 2009, DHS issued additional removalcharges based instead on Nelson’s 1999 conviction. Nelson,for his part, subsequently applied for cancellation of removal.After finding Nelson removable based on the 1999conviction, the IJ denied his application for cancellation ofremoval, concluding that Nelson had not accrued the requiredseven years of continuous residence in the United Statesnecessary to be eligible for that relief. In particular, the IJfound that Nelson’s 1999 drug offense triggered the ―stop-time‖ provision of 8 U.S.C. § 1229b(d)(1), and ended hisperiod of continuous residence short of the seven-yearstatutory threshold. Furthermore, the IJ determined thatNelson was not permitted to start a new period of continuousresidence based on his reentry to the United States followinghis two-day trip to Canada in 2000. Nelson appealed to the BIA. On appeal, Nelsonconceded his removability based on the 1999 conviction, but 3
  5. 5. argued that the IJ erred in denying his application forcancellation of removal for failure to meet the residencerequirement. He did not dispute that his 1999 conviction wasan event that interrupted his continuous residence. Rather, heargued that, based on this Court’s decision in Okeke v.Gonzales, 407 F.3d 585 (3d Cir. 2005), he was entitled toestablish a new period of continuous residence after hisreentry to the United States in 2000. On February 11, 2011, the BIA issued a precedentialdecision affirming the IJ and dismissing Nelson’s appeal. Inre Nelson, 25 I. & N. Dec. 410 (BIA 2011). The BIAdistinguished Okeke and concluded that ―the clock does notstart anew simply because an alien departs and reenters theUnited States following the commission of a triggeringoffense.‖ Because the BIA found Nelson removable basedexclusively on the 1999 conviction, it refused to address the2008 convictions or DHS’s claim that Nelson’s direct appealfrom those convictions had been dismissed. Nelsonpetitioned for review of the BIA’s decision. II. We have jurisdiction to review the decision of the BIAunder 8 U.S.C. § 1252(a). Because the BIA issued its ownopinion, and did not simply adopt the opinion of the IJ, wereview only the BIA’s decision as the final agency decision.Sarango v. Attorney General, 651 F.3d 380, 383 (3d Cir.2011). However, to the extent the BIA deferred to or adoptedthe IJ’s reasoning, we also look to and consider the decisionof the IJ on those points. See Chavarria v. Gonzalez, 446F.3d 508, 515 (3d Cir. 2006). We review the BIA’sconclusions of law de novo, but give so-called Chevrondeference to its interpretation of the Immigration andNationality Act. Id. (citing INS v. Aguirre-Aguirre, 526 U.S.415, 424–25 (1999)). ―Under the familiar two-step Chevroninquiry, first, if the statute is clear we must give effect toCongress’ unambiguous intent, and, second, if the statute issilent or ambiguous with respect to a specific issue, we deferto an implementing agency’s reasonable interpretation of thatstatute.‖ De Leon-Ochoa v. Attorney General, 622 F.3d 341, 4
  6. 6. 348 (3d Cir. 2010). A. The relevant statute in this case is 8 U.S.C. § 1229b,which provides that aliens may be eligible for cancellation ofremoval if they meet certain requirements. The preciseeligibility requirements depend on the alien’s status as apermanent resident or a nonpermanent resident. With respectto permanent residents, the statute provides that: The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien— (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.8 U.S.C. § 1229b(a).1 The crucial provision for purposes ofthis petition is the requirement of a continuous seven-yearresidence in the United States. With respect to the residency requirement, the statutecontains a section on the ―[t]reatment of certain breaks inpresence.‖ In particular, it states that ―[a]n alien shall beconsidered to have failed to maintain continuous physical1 The requirements for nonpermanent residents are somewhatmore onerous, although they also must show a continuousperiod in the country—described as continuous ―physicalpresen[ce]‖ rather than continuous ―residence.‖ Id. at §1229b(b)(1)(A). 5
  7. 7. presence . . . if the alien has departed from the United Statesfor any period in excess of 90 days or for any periods in theaggregate exceeding 180 days.‖ Id. § 1229b(d)(2). Moreimportantly for Nelson, however, the statute also contains aprovision calling for the ―termination‖ of an alien’scontinuous period of residence, stating: 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 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States . . . or removable from the United States . . ., whichever is earliest.Id. § 1229b(d)(1). This section is known as the ―stop-time‖provision of the statute. B. Both this Court and the BIA have analyzed andelaborated on the stop-time provision of § 1229b. In In reMendoza-Sandino, 22 I. & N. Dec. 1236 (BIA 2000)(―Mendoza‖), the BIA held that, once an alien’s period ofcontinuous presence or residence is terminated by the stop-time provision—through service of a notice to appear orcommission of a specified offense—it does not restart, andthe alien does not automatically begin accruing a new periodfollowing the cessation of the first one. In reaching thatconclusion, the BIA focused on the language and structure ofthe statute, particularly the fact that the service of a notice toappear or commission of a crime are said to ―end‖ the alien’speriod of continuous presence. The Board contrasted thatwith the provision of the statute identifying events that merely―break‖ the alien’s period of continuous presence: Congress has distinguished between certain actions that ―end‖ continuous physical presence, 6
  8. 8. i.e., service of a charging document or commission of a specified crime, and certain departures from the country that only temporarily ―break‖ that presence. Service of . . . a notice to appear is not included as an interruptive event under [the statute], which merely breaks continuous physical presence. Rather . . . such service is deemed to end an alien’s presence completely. Therefore, a reading of [the statute] that would allow an alien to accrue a new period of continuous physical presence after the service of a charging document is not supported by the language of [the statute].Id. at 1240. Accordingly, the BIA concluded ―that thelanguage of [the statute] reflects that service of a notice toappear . . . is not simply an interruptive event that resets thecontinuous physical presence clock, but is a terminatingevent, after which continuous physical presence can no longeraccrue.‖ Id. at 1241 (emphasis supplied). We have held that the Mendoza decision is reasonableand entitled to Chevron deference. Briseno-Flores v.Attorney General, 492 F.3d 226 (3d Cir. 2007). C. As noted above, Nelson admits that he committed anoffense in 1999 which triggered the stop-time provision andended his residency period short of the seven-year statutoryrequirement. Applying Mendoza and Briseno-Flores, thatresidency period, once terminated, would not restart. Seekingto avoid this result, Nelson argues he should be deemed tohave begun a new period of continuous residence after his1999 conviction based solely on his reentry to the UnitedStates from Canada following a brief trip. Because the BIAruled against him on this point, Nelson bears the burden ofshowing that the BIA’s decision was either contrary to theunambiguous language of the statute, or an unreasonableinterpretation of the statute. Nelson has failed to meet that 7
  9. 9. burden here. 1. Nelson’s first contention is that the plain language ofthe statute unambiguously provides for a new period ofcontinuous residence to begin after an alien exits and reentersthe country following his commission of a crime. Inparticular, he relies on the language of the cancellation ofremoval statute stating that a lawful permanent resident musthave ―resided in the United States continuously for 7 yearsafter having been admitted in any status.‖ 8 U.S.C. §1229b(a)(2) (emphasis supplied). Nelson argues that thislanguage ―makes clear that seven years of continuousresidence following any admission will be sufficient . . . [and]a new admission equals a new period of continuousresidence.‖ (Petitioner’s Br. at 43.) Nelson contends that hisreturn from Canada in 2000 constituted a new ―admission,‖and thus a period of seven years residence after that admissionshould qualify him for cancellation of removal regardless ofthe fact that he failed to acquire seven years residence afterhis initial admission in 1994. We disagree with Nelson’s characterization that the―after having been admitted in any status‖ languageunambiguously shows a congressional intent to have the clockrestart following reentry.2 Viewed in context, the language2 The parties dispute whether Nelson was in fact ―admitted‖within the meaning of the statute when he returned fromCanada. The government argues that he was not admittedbecause his 1999 conviction rendered him inadmissible to thecountry, and an alien’s entry must be substantively lawful inorder to fall within the meaning of the statute. See 8 U.S.C. §1101(a)(13); Gallimore v. Attorney General, 619 F.3d 216,224-25 (3d Cir. 2010). Nelson counters that substantivelawfulness is not required. Rather, he argues that the alienneed only show that he was allowed into the country afterinspection, i.e., that his admission was procedurally regular.In re Quilantan, 25 I. & N. Dec. 285 (BIA 2010). We neednot resolve this dispute here, however, because we disagree in 8
  10. 10. could also be subject to other reasonable interpretations. Forexample, an alternative interpretation is that the ―after havingbeen admitted in any status‖ language simply means that theseven-year period need not accrue entirely after admission asa lawful permanent resident. The ―in any status‖ phrase couldshow congressional recognition that an alien may initially beadmitted to the United States in some other status (e.g., on astudent visa, as a refugee, or some other nonimmigrant status)and receive an adjustment of status to a permanent residentsometime later. Under this interpretation, the statutorylanguage merely clarifies that such an alien does not beginaccruing time towards the seven-year period only after hisadjustment to permanent resident status. Rather, the alienimmediately begins accumulating time following his initialadmission, regardless of the status. Furthermore, Nelson’s interpretation of the ―afterhaving been admitted in any status‖ language conflicts withthe plain language of the stop-time provision itself, whichdistinguishes between certain events that merely break orinterrupt the accumulation of the statutory period (after whicha new period can restart) and events that terminate or end theaccumulation of a continuous period. If Congress hadintended the clock to restart after every reentry into thecountry, it could have said so explicitly. Therefore, we cannotagree that the statutory language is unambiguous on thispoint. 2. Because the statutory language does notunambiguously provide for the beginning of a new period ofcontinuous residence following reentry, Nelson can prevailonly if he establishes that the BIA’s interpretation isunreasonable. If the BIA’s decision is reasonable, we mustdefer to it even if we would have adopted a different reading.Yusupov v. Attorney General, 518 F.3d 185, 198 (3d Cir.2008).any case with Nelson’s argument that the statutory language isclear and unambiguous. 9
  11. 11. Nelson argues that the BIA’s decision is unreasonablebecause it conflicts with our decision in Okeke v. Gonzales,407 F.3d 585 (3d Cir. 2005). In that case, Anderson JudeOkeke, a Nigerian citizen, first entered the United States in1981 pursuant to a student visa to attend Touro College. In1983, after returning to Nigeria for personal reasons, Okekeattempted to reenter the United States and was arrested forpossession of marijuana. Okeke pleaded guilty and received asentence of five years probation. After returning from anothertrip to Nigeria in 1984, Okeke lived in the United Stateswithout interruption for about 13 years and overstayed hisstudent visa. In 1997, the government served him with anotice to appear citing his 1984 entry to the country (not his1981 or 1983 entries) and charging him with failing to complywith the terms of his student visa because he no longerattended Touro College. Okeke admitted the allegations inthe notice, but filed an application for cancellation ofremoval. In the removal proceedings, the BIA concluded thatOkeke could not demonstrate the continuous physicalpresence to qualify for cancellation of removal because hiscommission of a controlled substance offense in 1983triggered the stop-time provision and no further physicalpresence could accrue after that point. Okeke appealed. On appeal, a fractured panel of this Court disagreedwith the BIA and granted the petition for review. Althoughthe appeal resulted in three separate opinions, Nelson reliesexclusively on Judge Garth’s opinion. Judge Garth rejectedthe government’s reliance on Mendoza—noting that it did notaddress the issue of reentry—and instead relied on In reCisneros-Gonzales, 23 I. & N. Dec. 668 (BIA 2004)(―Cisneros‖). Judge Garth read Cisneros as standing for theproposition that, if an alien exits and reenters the country aftera clock-stopping event, he begins a new period of continuousresidence or presence. Therefore, Judge Garth found that―[w]here, as here, there is (lawful) reentry after a clock-stopping event (i.e., the commission of a controlled substanceoffense), the clock starts anew.‖ Okeke, 407 F.3d at 590. Although there is language in Okeke that undoubtedly 10
  12. 12. supports Nelson’s argument, we cannot agree that the BIAacted unreasonably in refusing to follow the decision in thiscase. As the BIA correctly noted, the fractured nature ofOkeke makes it difficult to articulate a controlling rationalethat could be applied outside the specific facts of that case.Even if we were to conclude that Judge Garth’s opinionrepresents the controlling rationale, his opinion was basedheavily on his interpretation that reentry was the critical factfor restarting the clock in Cisneros. The BIA, however, hassince rejected that interpretation, and concluded that Cisneros―did not announce a broad proposition that reentries, legal orillegal, will always restart the clock.‖ In re Nelson, 25 I. & N.Dec. 410, 414 n.4 (BIA 2011). The BIA’s interpretations andexplanations of its own decisions are entitled to deference. Moreover, Judge Garth himself expressly limited thereach of his opinion in Okeke, and noted that he was notaddressing a case such as Nelson’s: [T]his case is not about deporting an alien who had committed a crime. The [Notice to Appear (―NTA‖)] in this case made no reference to Okeke’s alleged commission of the controlled substance offense. The Court expresses no opinion as to Okeke’s immigrant status had such a charge been made, either when the action was allegedly committed or when the NTA was eventually filed.Okeke, 407 F.3d at 590. Judge Garth emphasized that theNTA cited Okeke’s entry into the country in May 1984 (afterthe drug offense) and made no mention of (1) his earlierentries into the country in 1981 and 1983; or (2) his controlledsubstance offense in 1983. Therefore, Judge Garth found:―[p]ursuant to the express terms of the NTA, then, it is thatfinal [May 1984] entry that should be considered incalculating [his] continuous physical presence. To focus onevents occurring prior to that time, when the NTA makes nomention of them, is both illogical and unjust.‖ Id. at 591(emphasis supplied). Nelson, in contrast, cannot crediblyargue that it is ―illogical and unjust‖ to consider his 1999 11
  13. 13. conviction when that conviction is explicitly referenced in theamended notice to appear. For all of these reasons, the BIA did not actunreasonably in concluding that Judge Garth’s opinion inOkeke did not control the outcome in this case. Rather, theBIA’s conclusion that Nelson’s reentry did not restart theclock is reasonable. The relevant portions of the statute arecompletely silent as to the effect of a reentry, save for thespecial rules providing that aliens who depart from the UnitedStates for extended periods of time break or interrupt theirperiod of continuous residence/presence. 8 U.S.C. §1229b(d)(2). If Congress had intended for an alien’sdeparture from the United States to have any additionalsignificance, it would have explicitly said so. Furthermore,there is no sound logical justification for attaching suchsignificance to departure from the country. An alien wholeaves for a two-day trip to Canada after committing a crimeand lives in the United States for seven years after returninghas no greater logical claim to be entitled to cancellation ofremoval than a similarly-situated alien who never leaves thecountry. Accordingly, the BIA’s decision not to make such adistinction is reasonable and entitled to Chevron deference. 12
  14. 14. as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704 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 periodof continuous residence required for cancellation of removal under section 240A(a) of theImmigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006), section 240A(d)(1) of the Actdoes not permit such residence to restart simply because the alien has departed from, andreturned to, the United States.FOR RESPONDENT: Whitney Elliott, Esquire, Edison, New JerseyFOR THE DEPARTMENT OF HOMELAND SECURITY: Alan Wolf, Senior AttorneyBEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.FILPPU, Board Member: This case concerns the question whether under the “stop-time” ruleof 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, andreentry to, the United States after a conviction for a crime that would otherwisestop the accrual of continuous residence for purposes of determining eligibilityfor cancellation of removal under section 240A(a) of the Act. We hold thatcontinuous residence cannot be restarted, at least in the absence of a waiverof inadmissibility in regard to the conviction. We must also address whetherwe are nevertheless constrained to reach a different outcome under the lawof the United States Court of Appeals for the Third Circuit, the jurisdictionin which this case arises. Because we find that we are not so constrained,we will dismiss the respondent’s appeal from the Immigration Judge’sJune 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 theUnited States as a lawful permanent resident on November 3, 1994. As theImmigration Judge noted, the respondent testified that he visited Canada for2 days in August 2000 and returned to the United States. 410
  15. 15. Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704 On April 9, 1999, the respondent was convicted of possession of marijuanain violation of section 221.25 of the New York Penal Law, based on an offensecommitted on or about February 20, 1999.1 He was also convicted of twocontrolled 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 sections237(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 controlledsubstance violation. The Notice to Appear was factually predicatedon the respondent’s 1994 admission as an immigrant and on his 2008controlled substance convictions in New Jersey. On September 8, 2009, theDepartment of Homeland Security (“DHS”) issued a Form I-261 (AdditionalCharges of Inadmissibility/Deportability), which added the respondent’s 1999conviction as a factual allegation supporting his removability. The Immigration Judge ruled that the respondent’s 2008 convictions werenot final for immigration purposes because they were on direct appealin New Jersey.2 However, she determined that the respondent was removableunder section 237(a)(2)(B)(i) of the Act as a result of his 1999 conviction. TheImmigration Judge also denied the respondent’s application for cancellationof removal under section 240A(a) of the Act because he failed to establish therequisite 7 years of continuous residence. Specifically, she found that therespondent 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 drugoffense that rendered him removable. In making this finding, the ImmigrationJudge determined that the respondent was not permitted to start a new periodof continuous residence upon his reentry to the United States in 2000. On appeal, the respondent does not contest the Immigration Judge’s findingthat he is removable under section 237(a)(2)(B)(i) of the Act. However,he argues that the Immigration Judge erred in denying his applicationfor cancellation of removal based on her determination that he failedto demonstrate that he “has resided in the United States continuously for7 years after having been admitted in any status,” as required by section240A(a)(2) of the Act. In this regard, the respondent does not dispute that1 The Immigration Judge denied the respondent’s request for an additional continuanceto seek post-conviction relief related to his 1999 conviction, and the respondent has notchallenged that determination on appeal.2 The DHS did not appeal from that determination. However, both the DHS and therespondent have filed motions based upon subsequent developments regarding therespondent’s 2008 convictions. The DHS’s motion states that the respondent’s appeal hasbeen dismissed, while the respondent claims that a further appeal of his convictions has beentaken. In light of our disposition of this case, we need not resolve the issues raised in themotions. 411
  16. 16. Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704he was convicted of an offense in 1999 that triggered the “stop-time” ruleunder section 240A(d)(1). He nevertheless contends that he is entitledto establish a new period of continuous residence, commencing upon hisreentry to the United States in 2000. II. ANALYSIS We agree with the Immigration Judge’s conclusion that under section240A(d)(1) of the Act, the period of time the respondent was in theUnited States after his conviction and subsequent reentry to this countrycannot be counted toward the accrual of the 7 years of continuous residencerequired for cancellation of removal, since the clock does not start anewsimply because an alien departs and reenters the United States following thecommission 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 physicalpresence or continuous residence ‘ends’ upon the occurrence of one of thespecified events, whichever is earliest.” We therefore held that an alien couldnot accrue a new 7-year period of continuous physical presence for suspensionof deportation after the service of an Order to Show Cause, because section240A(d)(1) of the Act provides for the termination of physical presence uponservice of a charging document. In reaching this conclusion, we compared the language of section240A(d)(1) to that of section 240A(d)(2), which relates to the treatmentof certain “breaks” in continuous physical presence resulting from briefabsences from the country.3 We found that in enacting these two provisions,3 We note that section 240A(d)(2) of the Act only relates to cancellation of removal undersections 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 removalunder section 240A(a). Section 240A(d)(2) provides as follows: (continued...) 412
  17. 17. Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704Congress distinguished between actions that “end” continuous physicalpresence or residence and those that only temporarily interrupt the accrualof continuous physical presence by absence from the country for a certainperiod of time. Id. at 1240. Based on the language of both sections,we concluded that the service of a charging document and the commissionof a specified crime were “terminating” events, after which continuousphysical presence or continuous residence could no longer accrue. 1240-41. Our interpretation of the statute was also supported by the legislative historyof section 240A(d) of the Act. We noted various congressional reportsin which the legislators recognized the difference between a temporary “break”in continuous physical presence resulting from a brief departure and the eventsthat caused physical presence and residence to “terminate forever,” namely theissuance of a charging document and the commission of a specified crime. 1242-43. The legislative history also made it clear that the legislatorsintended to remove the incentive for aliens to prolong their stay in this countryto become eligible for immigration benefits. With this in mind, we concludedthat it would be contrary to the intent of Congress to permit an alien to accruea new period of time after the occurrence of one of the terminating eventsin section 240A(d)(1) of the Act. Our decision in Matter of Mendoza-Sandino has been found by theThird Circuit to be entitled to deference under Chevron, U.S.A., Inc. v. NaturalResources Defense Council, Inc., 467 U.S. 837 (1984). Briseno-Floresv. 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” ourinterpretation of the statute and cited rulings of other circuit courts that werein 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 Najjarv. Ashcroft, 257 F.3d 1262, 1299-1330 (11th Cir. 2001); Ram v. INS, 243 F.3d510, 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 courtnoted that our reasoning had been questioned by the concurring opinionin Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005), an earlier decision of the(...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
  18. 18. Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704Third Circuit on which the respondent relies as support for his argumentson appeal. The facts in Okeke differ from those in this case. The alien there enteredin 1981 as a nonimmigrant student, returned home, and then came back to theUnited States in 1983. Upon reentry, he was arrested for possessionof marijuana, to which he pled guilty. He subsequently departed the countryand was readmitted on his student visa in 1983 and 1984. In 1997, he wasplaced in proceedings and was charged with removability based on his failureto maintain student status. Thus, unlike the respondent, he was not chargedon the basis of the commission of his crime. The Third Circuit panel in Okeke issued three separate opinions. Theopinion of the court held that the alien was entitled to a new periodof continuous physical presence, commencing upon his reentry to theUnited States. Specifically, it distinguished Matter of Mendoza-Sandino, bothon the facts and because it did not address the question whether a lawfulreentry 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 (BIA2004).4 Okeke v. Gonzales, 407 F.3d at 589-90. Although the judge in thisopinion found that reentry after a clock-stopping event such as the commissionof 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 chargingdocument had alleged that Okeke was removable on the basis of his controlledsubstance offense, rather than for the failure to maintain student status arisingonly after he had made a lawful reentry. Id. at 590-91.54 In Matter of Cisneros, which, unlike this case, involved the question of accrualof continuous physical presence after the service of a charging document, we distinguishedMatter of Mendoza-Sandino and held that the “stop-time” rule was not intended to extendto charging documents issued in an earlier removal proceeding. We therefore held thatan alien who had been deported and accrued more than 10 years after returning to thecountry could count that period of continuous physical presence to establish eligibility forcancellation of removal under section 240A(b) of the Act in a subsequent removalproceeding. Our ruling in that case, which was based on a different factual scenario than thatpresented here, did not announce a broad proposition that reentries, legal or illegal, willalways 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 reentryas a nonimmigrant following his controlled substance conviction. We express no opinionon whether the respondent could have reset the “clock” had he obtained a waiver undersection 212(h) of the Act upon reentry, or had he been in new proceedings, following a priorremoval for his marijuana offense, after admission on a new visa issued with a waiver for theoffense. 414
  19. 19. Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704 The concurring opinion agreed with the result but interpreted our holdingin Matter of Cisneros differently and found Matter of Mendoza-Sandinoto be “incorrect.”6 Okeke v. Gonzales, 407 F.3d at 592-93 (Ambro, J.,concurring). The dissent would have followed our decision in Matterof Mendoza-Sandino and concluded that Okeke’s continuous physical presenceended when he was convicted of a drug offense, because the clock could notbe restarted. Id. at 597. We agree with the Immigration Judge that Okeke v. Gonzales is not bindingin this case. Since the respondent has been charged in the Notice to Appearwith the very crime that would terminate his continuous residence, the court’sruling, by its own terms, does not apply. Okeke v. Gonzales, 407 F.3dat 590-91. Moreover, given the fractured nature of the decision in Okeke,it would be difficult to ascertain a rationale that would be controlling outsideof the facts of that case. In any event, the Third Circuit’s more recent decisionin Briseno-Flores v. Attorney General of U.S., 492 F.3d at 231, found ourreasoning in Mendoza-Sandino to be reasonable and entitled to deference. In this case, the respondent’s commission of the crime leading to his 1999controlled substance conviction is a “stop-time” event for these removalproceedings. The Notice to Appear factually referenced his 1994 admission,and the Form I-261 specifically alleged his 1999 offense as support for thecharge that he is removable as a convicted alien. Moreover, there is no claimthat the respondent received a waiver in relation to his marijuana offensethat would have allowed him to effect a substantively lawful reentry after his2000 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 permanentresident may be regarded as seeking admission if he has committedan 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); section212(a)(2)(A)(i)(II) of the Act (providing that any alien who is convictedof a controlled substance violation is inadmissible). We therefore concludethat under our decision in Matter of Mendoza-Sandino, the clock could notbe reset by the respondent’s departure and return after his conviction. Anyother reading of section 240A(d)(1) of the Act that would allow an aliento accrue a new period of continuous residence simply by departing andreentering the United States following the commission of a triggering criminaloffense would undermine the intent of Congress, as expressed in the legislativehistory of the statute.6 In its subsequent opinion in Briseno-Flores v. Attorney General of U.S., 492 F.3d at 231n.6, the Third Circuit appeared to discount the concurring opinion in Okeke v. Gonzales. 415
  20. 20. Cite as 25 I&N Dec. 410 (BIA 2011) Interim Decision #3704 III. CONCLUSION For the reasons discussed above, we conclude that the respondent’s criminaloffense in 1999 terminated his continuous residence in the United States undersection 240A(d)(1) of the Act. Consequently, the period of time after hisreentry to this country cannot be counted toward the accrual of the 7 yearsof continuous residence required for cancellation of removal under section240A(a). Therefore, the respondent is not statutorily eligible for that relief,and his appeal will be dismissed. ORDER: The appeal is dismissed. 416