An alien who has been placed in removal proceedings and has been living in the United States without legal status for a long time may be eligible for Non-LPR Cancellation of Removal pursuant to Immigration & Nationality Act (the “INA”) § 240A(b)(1). See INA § 240A(b)(1). To be eligible for Non-LPR Cancellation of Removal, the alien must establish he/she

  1. has been physically present in the U.S. for a continuous period of at least ten years immediately prior to filing an EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents with the Immigration Court;
  2. has been a person of good moral character during the past ten years;
  3. has not been convicted of certain criminal offenses; and has a U.S. citizen or lawful permanent resident spouse, parent or child who would endure exceptional and extremely unusual hardship if removal was not cancelled.See INA § 240(A)(b)(1)(A)-(D).

The “stop-time” rule defines when continuous residence or continuous physical presence ends. See INA § 240A(d). According to INA § 240A(d), continuous residence ends when either the alien commits a designated criminal offense or is served with a Notice to Appear (the “NTA”) placing him/her in removal proceedings.See INA § 240A(d)(1)(A)-(B). The Board of Immigration Appeals (the “BIA”) has recently issued a decision in the Matter of Ordaz, 26 I. & N. Dec. 637 (BIA 2015) significantly impacting how the “stop-time” rule is applied. In the Matter of Ordaz, the BIA held that an NTA that was served upon an alien, but never actually resulted in the commencement of deportation/removal proceedings against the alien did not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal. See Matter of Ordaz, 26 I. & N. Dec. 637 (BIA 2015).

In the Matter of Ordaz, the alien claimed to have entered the United States in 1990.Id. at 637. Approximately eight years later the alien encountered immigration officers and was served with an NTA on April 2, 1998, which advised him that he needed to appear before an Immigration Judge (the “IJ”) at a date, time, and place to be determined. Id. However, the deportation/removal proceedings against the alien were never commenced as the NTA was not properly filed with the Immigration Court as required by 8 C.F.R. § 3.14(a). Id. at 637-638. The alien was served by the Department of Homeland Security (the “DHS”) with a second NTA on or about September 1, 2004. Id. at 638. The alien applied for Non-LPR Cancellation of Removal before the Immigration Court. Id. The IJ concluded the alien was ineligible for Non-LPR Cancellation of Removal, because the period of continuous physical presence ended when he was previously served with a NTA in 1998. Id. As such, the IJ concluded the alien had failed to accrue the required ten years of continuous physical presence for Non-LPR Cancellation of Removal. Id.

The BIA concluded an NTA that was served upon an alien, but never actually resulted in the commencement of removal proceedings against the alien did not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal. Though acknowledging that the language in INA § 240A(d)(1) could refer to any NTA, the BIA nonetheless concluded this was “not the best reading of section 240A(d)(1), considering the typical posture of removal proceedings and the overall context of the statute.” Id. at 640. The BIA first noted that removal “proceedings ordinarily begin with a single notice to appear and end with an order of removal or a grant of some form of relief from removal.” Id. DHS may amend an NTA at any time during the removal proceedings by simply serving a Form I-261, Additional Charges of Removability making it unnecessary to initiate new removal proceedings “on the basis of an additional, superseding notice to appear.” Id. The BIA further noted “affording 'stop-time' effect to 'any' notice to appear, regardless of whether proceedings were ever commenced on that basis, would potentially render an alien ineligible for relief on the basis of a charging document that was invalid or otherwise insufficient to support a removal charge as issued.” Id. Where removal proceedings are never commenced, an “alien would not have the opportunity to contest, or require the DHS to prove, the allegations and charges contained in the notice to appear.” Id.

The BIA further reconciled its interpretation of the “stop-time” rule with its prior decisions in the Matter of Cisneros, 23 I. & N. Dec. 668 (BIA 2004) and Matter of Camarillo, 25 I. & N. Dec. 644 (BIA 2011). In the Matter of Cisneros, the BIA “rejected the argument that service of a notice to appear in a prior proceeding that was prosecuted to completion should have 'stop-time' effect in all future proceedings.Matter of Ordaz, 26 I. & N. at 641 citing Matter of Cisneros, 23 I. & N. at 672. Congress' express intent in enacting the “stop-time” rule was to thwart “the prior practice of allowing periods of continuous physical presence to accrue” during the pendency of removal proceedings, which allowed aliens to employ dilatory tactics in proceedings in order to 'buy time' to establish eligibility for cancellation of removal.”Matter of Cisneros, 23 I. & N. at 670. In the Matter of Camarillo, the BIA had concluded INA § 240A(d)(1) was triggered as of the date the NTA was served, even if the date, time and place of the hearing was not specified so long as removal proceedings were actually initiated based upon that NTA. Matter of Camarillo, 25 I. & N. Dec. at 650.

As such, the Matter of Cisneros, Matter of Camarillo, and Matter of Ordaz interpret INA § 240A(d)(1) as ending an alien's period of continuous physical presence as of the date the NTA was served, provided that such NTA was the basis for the removal proceedings in which the alien sought cancellation of removal. The BIA concluded the NTA issued to the alien in the Matter of Ordaz in 1998 did not end his continuous physical presence, because it was never used to actually commence removal proceedings against the alien.

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