In re Perez
| Decision Date | 12 May 1999 |
| Docket Number | Interim Decision No. 3389.,File A91 875 147. |
| Citation | 22 I&N Dec. 689 |
| Parties | In re Cristobal PEREZ, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
We have jurisdiction over this timely appeal pursuant to 8 C.F.R. § 3.1(b) (1999). The respondent has appealed the Immigration Judge's October 29, 1997, oral decision finding that he is removable on the basis of his conviction for a controlled substance violation pursuant to section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (Supp. II 1996), and pretermitting his application for cancellation of removal pursuant to section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (Supp. II 1996). Removability is not an issue on appeal. The respondent contends that the Immigration Judge erred in finding him statutorily ineligible to apply for cancellation of removal on the ground that the required period of continuous residence was terminated when he committed the controlled substance offense. Our review is de novo with regard to the issue on appeal. Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The appeal will be dismissed.
The issue in this case is whether the "stop-time" rule of section 240A(d)(1) of the Act operates to terminate the period of continuous residence required for cancellation of removal under section 240A(a) as of the date that the respondent committed his offense.
In removal proceedings commenced on September 26, 1997, the respondent admitted, through his counsel, each of the factual allegations in the Notice to Appear (Form I-862). Specifically, the respondent stated that he is a native and citizen of El Salvador, that he was first admitted as a temporary resident on September 21, 1989, and that his status was subsequently adjusted to that of a lawful permanent resident on December 7, 1990. The respondent further admitted that he was convicted on July 11, 1997, in the 184th District Court of Harris County, Texas, of possession of cocaine, and that this offense was committed on or about August 4, 1992.1 The respondent conceded that he was removable as charged under section 237(a)(2)(B)(i) of the Act on the basis of this conviction.
The respondent's position on appeal is that the presumption against the retroactive effect of statutes stated by the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994), is applicable in this case. The respondent contends that, because he committed his drug offense prior to the passage of section 240A of the Act, that section's rules limiting eligibility for relief from removal should not be applied to him. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 304(a)(3), 110 Stat. 3009-546, 3009-595 ("IIRIRA") (codified at 8 U.S.C. § 1229b).
We first note that the relief of cancellation of removal is both discretionary and prospective in nature. Section 240A of the Act therefore does not impair a substantive right to relief that was in place prior to its enactment. When assessing statutory eligibility or discretionary merit for a grant of cancellation of removal, we must necessarily look at a variety of antecedent events, including events that are both favorable and unfavorable to the alien. An alien's past criminal conduct may well impact on the operation of the statute. But it does so only to the extent of defining the Attorney General's present authority to grant discretionary relief to removable aliens, or of informing as to the exercise of discretion. We therefore do not find that applying section 240A would have an impermissible "retroactive effect" as contemplated in Landgraf.
In any event, where Congress has expressly prescribed the reach of the new legislation, there is no need to resort to the judicial default rules set forth in Landgraf. We find that Congress has provided specific direction on the scope of applicability of the section 240A rules governing the relief of cancellation of removal. The effective date provisions of the legislation implementing the new procedures provide, with certain exceptions not applicable here, that section 240A applies to aliens unless they are currently in deportation or exclusion proceedings. See IIRIRA §§ 304(c)(2), 110 Stat. at 3009-597; 309(c)(1), 110 Stat. at 3009-625. The respondent is not in deportation or exclusion proceedings. He is in removal proceedings commenced after the April 1, 1997, effective date that the IIRIRA established for such proceedings. Consequently, the section 240A rules apply.
Since the respondent's eligibility for relief is controlled by the rules stated in section 240A of the Act, we must address whether the Immigration Judge properly applied these rules when he pretermitted the respondent's application for section 240A(a) cancellation of removal.
(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.
The respondent was admitted for permanent residence on December 7, 1990, and therefore meets the first requirement of the statute.2 We will not address the question whether the respondent meets the third requirement for relief because there is no documentary evidence relating to the respondent's conviction in the record. Therefore, we confine our inquiry to the remaining issue of whether the Immigration Judge correctly determined that the respondent had not satisfied the second requirement of 7 years of continuous residence after having been admitted in any status. The respondent committed his criminal offense before he accrued 7 years of residence. However, he was convicted of that offense nearly 8 years after his admission as a temporary resident.
The commencement of the period of continuous residence is defined in section 240A(a)(2) of the Act as the date when the respondent has been "admitted in any status." For the purpose of triggering the accrual of the 7 years of continuous residence required under section 240A(a)(2), we interpret admission in "any status" to include admission as a temporary resident. The respondent was first admitted in "any status," and continuous residence thus began to accrue, when he was admitted as a temporary resident on September 21, 1989.
The termination of continuous residence is defined by the special rule at section 240A(d)(1), which provides as follows:
For purposes of this section, 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) or 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. (Emphasis added.)
Applying section 240A(d)(1) of the Act, the Immigration Judge determined that the respondent's period of continuous residence ended on August 4, 1992, the date he committed his offense, and that he consequently had less than the required 7 years of continuous residence. We find that the Immigration Judge was correct in applying the commission date as the date that continuous residence terminated.
The natural and straightforward reading of section 240(A)(d)(1) indicates that continuous residence or physical presence is deemed to end at the point when the alien "has committed" one of the designated offenses, i.e., one that is "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)." Section 240A(d)(1) of the Act.
The date that criminal misconduct is committed is the critical point in time when calculating the statutorily required period of time under section 240A(d)(1). The subsequent "renders" clause does not impose a separate temporal requirement. Rather, it is a restrictive clause which modifies the word "offense" by limiting and defining the types of offenses which cut off the accrual of further time as...
To continue reading
Request your trial