In re Cisneros-Gonzalez
| Decision Date | 01 September 2004 |
| Docket Number | File A92 890 131,Interim Decision Number 3500 |
| Citation | 23 I&N Dec. 668 |
| Parties | In re Ignacio CISNEROS-Gonzalez, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: HOLMES, Acting Vice Chairman; HURWITZ, FILPPU, MOSCATO, MILLER, OSUNA, and PAULEY, Board Members. Concurring Opinion: SCIALABBA, Chairman; joined by GRANT, Board Member. Dissenting Opinion: COLE, Board Member, joined by HESS, Board Member.
FILPPU, Board Member:
The respondent appeals from an Immigration Judge's January 23, 2002, decision denying his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2000). The respondent's request for oral argument is denied. 8 C.F.R. § 1003.1(e)(7) (2004). The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is currently in removal proceedings, but he was previously in deportation proceedings, which were conducted under prior law. Specifically, on December 28, 1990, the respondent—a native and citizen of Mexico—was served an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S), charging him with deportability under former section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1988), as an alien who entered the United States without inspection. The respondent conceded deportability as charged, and on January 10, 1991, an Immigration Judge ordered him deported. The respondent waived appeal and made no application for relief from deportation, so he was physically deported to Mexico the same day. On the next day, January 11, 1991, the respondent returned to the United States without being admitted or paroled. He has remained in the United States since that time without interruption.
On June 5, 2001, more than 10 years after his illegal return, the Immigration and Naturalization Service, now the Department of Homeland Security ("DHS"), served a Notice to Appear (Form I-862) on the respondent, charging him with removability as an alien present in the United States without being admitted or paroled. See section 212(a)(6)(A)(i) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2000). The respondent conceded removability and requested cancellation of removal under section 240A(b) of the Act, a form of relief that is available only to certain aliens who, at the time of filing the application, have been physically present in the United States for a continuous period of not less than 10 years.
The Immigration Judge concluded that the respondent could not satisfy the continuous physical presence requirement and denied his application for cancellation of removal. In coming to this conclusion, the Immigration Judge relied on the "stop-time" rule set forth at section 240A(d)(1) of the Act, which provides in pertinent part that an alien's period of continuous physical presence in the United States is "deemed to end ... when the alien is served a notice to appear." Specifically, the Immigration Judge cited as controlling authority our precedent decision in Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), which held in the context of a suspension of deportation application that service of an Order to Show Cause upon an alien "is not simply an interruptive event that resets the continuous physical presence clock, but is a terminating event, after which continuous physical presence can no longer accrue." Id. at 1241.
The issue before us is whether an alien who departs the United States after being served with a valid charging document can, upon his subsequent return to the United States, accrue a period of continuous physical presence—measured from the date of his return—so as to demonstrate eligibility for cancellation of removal.
Because the respondent is not a lawful permanent resident of the United States, he is eligible for cancellation of removal only if he can prove that he "has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date" upon which his application for relief was submitted. Section 240A(b)(1)(A) of the Act. This continuous physical presence requirement is subject to several "special rules" set forth at section 240A(d) of the Act, one of which provides in pertinent part 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 under section 239(a)." Section 240A(d)(1) of the Act. Although the language of section 240A(d)(1) refers only to "notices to appear," Congress has clarified that continuous physical presence may also be terminated by service of an Order to Show Cause in deportation proceedings under prior law. See section 203(a)(1) of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997) ("NACARA"); Matter of Nolasco, 22 I&N Dec. 632 (BIA 1999).
Section 240A(d)(1) was enacted into law by section 304(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-595 ("IIRIRA"). Legislative history reflects that section 240A(d)(1) was enacted by Congress in order to restrict perceived abuses arising from the prior practice of allowing periods of continuous physical presence to accrue after service of a charging document. Specifically, the Judiciary Committee of the House of Representatives asserted that aliens in deportation proceedings had knowingly filed meritless applications for relief or otherwise exploited administrative delays in the hearing and appeal processes in order to "buy time," during which they could acquire a period of continuous presence that would qualify them for forms of relief that were unavailable to them when proceedings were initiated. See Report of the Committee on the Judiciary, House of Representatives, on H.R. 2202, H.R. Rep. No. 104-469 (1996).
With this legislative intent in mind, we held in Matter of Mendoza-Sandino, supra, that a period of physical presence accrued by an alien after service of an Order to Show Cause, but prior to the issuance of an administratively final order of deportation, could not be counted toward the 7 years of continuous physical presence required to establish eligibility for suspension of deportation. In other words, Matter of Mendoza-Sandino resolved the question whether service of a valid charging document precluded an applicant for relief from accruing a qualifying period of continuous physical presence in the proceedings that arose from service of that charging document. That decision did not resolve the question, presented here, whether an alien who departed the United States after being served with a valid charging document can seek relief in a subsequent removal proceeding, based on a new period of continuous physical presence measured from the date of his return. Applying the "stop-time" rule to an alien in these latter circumstances implicates ambiguities in the language and purpose of section 240A(d)(1) that were not present in Matter of Mendoza-Sandino, supra.
The language of section 240A(d)(1) of the Act is ambiguous as to the effect of a charging document served in an earlier proceeding relative to the accrual of continuous physical presence in subsequent proceedings. As the tribunal vested in the first instance with the Attorney General's authority to administer the Immigration and Nationality Act, we must therefore determine a reasonable interpretation of Congress' language. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984). In doing so, we must take into account the design of the Act as a whole, pursuant to the rules of statutory construction. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).
As previously noted, section 240A(d)(1) of the Act was enacted to prevent aliens from taking advantage of administrative delays in the hearing and appeal processes to accrue the term of continuous physical presence required to establish eligibility for relief. However, neither the language nor the legislative history of the "stop-time" rule suggests that Congress envisioned it to be a means of preventing aliens from illegally reentering the United States after a prior removal or deportation. On the contrary, that purpose was to be served by section 305(a)(3) of the IIRIRA, 110 Stat. at 3009-599, which directed the Attorney General to reinstate and reexecute prior orders of exclusion, deportation, or removal against aliens, such as the present respondent, who had unlawfully reentered the United States. Under the reinstatement procedure, which is codified at section 241(a)(5) of the Act, 8 U.S.C. § 1231(a)(5) (2000), an alien who has reentered the United States unlawfully after entry of a prior order of exclusion, deportation, or removal is generally ineligible for a hearing before an Immigration Judge, or for any form of relief under the Act, and is to be removed expeditiously in accordance with his or her prior order. See also 8 C.F.R. § 1241.8 (2004).
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