Although it may not have generated much attention in the media, a very important precedential decision was issued by the Board of Immigration Appeals last month. Lawyers who practice deportation and removal defense certainly know about, or certainly should. The decision is Matter of ORDAZ, 26 I & N Dec. 637 (BIA 2015) and it is especially relevant in these times given the seemingly endless delay of individuals having their day in immigration court. The decision concerns the "stop-time" rule and whether service of a Notice To Appear that does not result in commencement of removal proceedings effectively triggers the stop-time rule for purposes of cancellation of removal.
General Requirements To Qualify for Cancellation of Removal
Often misunderstood as the 10 Year Immigration Law, cancellation of removal is a defensive application that eligible individuals can file for in immigration proceedings that, if granted, not only allows them to stay in the US but also receive permanent residence. 8 US Code 1229b provides:
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-
- (A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
- (B) has been a person of good moral character during such period;
- (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2) or 1227(a)(3) of this title, subject to paragraph (5); and
- (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Stop-time Rule and Its Effect on Cancellation
With respect to the physical presence requirement, the law provides that any period of continuous residence or continuous physical presence in the United States shall be deemed to end when the "alien is served a notice to appear."
Holding of Matter of Ordaz
In the Ordaz case, the government argued that the Respondent was ineligible for cancellation of removal due to service of a Notice to Appear that occurred prior to Mr. Ordaz accruing the necessary ten years. The wrinkle here, though, is that that same Notice to Appear never amounted to anything, as it was never filed with the Immigration Court. By the time the government served a second Notice to Appear, the Respondent had, by that time, acquired the necessary ten years to be eligible to apply for cancellation of removal. After a brief discussion of the ambiguous language in the statute and possible interpretations, the Court arrived at a common-sense understanding and held that "the language and structure of section 240A(d)(1) of the Act do not support giving 'stop-time" effect to a notice to appear that was served on an alien but was never used to commence proceedings." So, in other words, the NTA document that is served and constitutes the basis of the proceedings is the one that cuts off the ten years. If a Notice to Appear that is not the basis upon which current removal proceedings are predicated on, there may be a window of opportunity for a defendant (otherwise known as a "respondent") in Immigration Court to apply for cancellation of removal, provided he/she meets the other criteria.