Nelson v. Attorney Gen. of the U.S.

• Decision Date: 22 May 2012
• Docket Number: No. 11–1654.,11–1654.
• Citation: 685 F.3d 318
• Parties: Michael Alexander NELSON, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

685 F.3d 318

Michael Alexander NELSON, Petitioner,

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 11–1654.

United States Court of Appeals, Third Circuit.

Argued: April 19, 2012.

Opinion Filed: May 22, 2012.

Kristen Sawicki (Argued), Richard H. Frankel, Esq. (Argued), Drexel University, Earle Mack School of Law, Philadelphia, PA, for Petitioner.

Jeffrey L. Menkin, Esq. (Argued), United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: VANASKIE, BARRY and CUDAHY,^* Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

Michael Nelson petitions for review of the decision of the Board of Immigration Appeals, which concluded that he had not accumulated the seven years of continuous residence in the United States necessary to be eligible for cancellation of removal under 8 U.S.C. § 1229b. We will deny the petition.

I.

Nelson is a native and citizen of Jamaica who was admitted to the United States as a lawful permanent resident on November 3, 1994. In early 1999, less than five years after his admission to the United States, Nelson pleaded guilty in New York state court to possession of approximately 16 ounces of marijuana (“the 1999 conviction”).

In August 2000, Nelson visited Canada for two days. Although his 1999 conviction rendered him inadmissible to the United States, Nelson was nonetheless allowed to reenter the country through a border checkpoint. Following his reentry, he did not leave the United States again and lived here without interruption.

On November 16, 2006, Nelson was arrested in New Jersey after attempting to retrieve a package containing a substantial amount of marijuana that had been mailed to a Sears Auto Center. In May 2008, he was tried by a jury in New Jersey state court and found guilty of attempted possession with intent to distribute marijuana in violation of N.J.S.A. §§ 2C:5–1, 2C:35–5b(10), & 2C:35–7.1 (“the 2008 convictions”). He proceeded to challenge these convictions on direct appeal.

On November 26, 2008, the Department of Homeland Security (“DHS”) issued a Notice to Appear asserting that Nelson was removable because his 2008 convictions constituted aggravated felonies and controlled substances offenses pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i). The Immigration Judge (“IJ”) originally found Nelson removable based on these convictions, but later withdrew those findings after Nelson established that the convictions were on direct appeal and thus were not “final.”

On September 8, 2009, DHS issued additional removal charges based instead on Nelson's 1999 conviction. Nelson, for his part, subsequently applied for cancellation of removal. After finding Nelson removable based on the 1999 conviction, the IJ denied his application for cancellation of removal, concluding that Nelson had not accrued the required seven years of continuous residence in the United States necessary to be eligible for that relief. In particular, the IJ found that Nelson's 1999 drug offense triggered the “stop-time” provision of 8 U.S.C. § 1229b(d)( l ), and ended his period of continuous residence short of the seven-year statutory threshold. Furthermore, the IJ determined that Nelson was not permitted to start a new period of continuous residence based on his reentry to the United States following his two-day trip to Canada in 2000.

Nelson appealed to the BIA. On appeal, Nelson conceded his removability based on the 1999 conviction, but argued that the IJ erred in denying his application for cancellation of removal for failure to meet the residence requirement. He did not dispute that his 1999 conviction was an event that interrupted his continuous residence. Rather, he argued that, based on this Court's decision in Okeke v. Gonzales, 407 F.3d 585 (3d Cir.2005), he was entitled to establish a new period of continuous residence after his reentry to the United States in 2000.

On February 11, 2011, the BIA issued a precedential decision affirming the IJ and dismissing Nelson's appeal. In re Nelson, 25 I. & N. Dec. 410 (BIA 2011). The BIA distinguished Okeke and concluded that “the clock does not start anew simply because an alien departs and reenters the United States following the commission of a triggering offense.” Because the BIA found Nelson removable based exclusively on the 1999 conviction, it refused to address the 2008 convictions or DHS's claim that Nelson's direct appeal from those convictions had been dismissed. Nelson petitioned for review of the BIA's decision.

II.

We have jurisdiction to review the decision of the BIA under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, and did not simply adopt the opinion of the IJ, we review 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 adopted the IJ's reasoning, we also look to and consider the decision of the IJ on those points. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review the BIA's conclusions of law de novo, but give so-called Chevron deference to its interpretation of the Immigration and Nationality Act. Id. (citing INS v. Aguirre–Aguirre, 526 U.S. 415, 424–25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)). “Under the familiar two-step Chevron inquiry, first, if the statute is clear we must give effect to Congress' unambiguous intent, and, second, if the statute is silent or ambiguous with respect to a specific issue, we defer to an implementing agency's reasonable interpretation of that statute.” De Leon–Ochoa v. Attorney General, 622 F.3d 341, 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 of removal if they meet certain requirements. The precise eligibility requirements depend on the alien's status as a permanent resident or a nonpermanent resident. With respect to 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 of this petition is the requirement of a continuous seven-year residence in the United States.

With respect to the residency requirement, the statute contains a section on the “[t]reatment of certain breaks in presence.” In particular, it states that “[a]n alien shall be considered to have failed to maintain continuous physical presence ... 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.” Id. § 1229b(d)(2). More importantly for Nelson, however, the statute also contains a provision calling for the “termination” of an alien's continuous 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)( l ). This section is known as the “stop-time” provision of the statute.

B.

Both this Court and the BIA have analyzed and elaborated on the stop-time provision of § 1229b. In In re Mendoza–Sandino, 22 I. & N. Dec. 1236 (BIA 2000)(“Mendoza–Sandino ”), the BIA held that, once an alien's period of continuous presence or residence is terminated by the stop-time provision—through service of a notice to appear or commission of a specified offense—it does not restart, and the alien does not automatically begin accruing a new period following the cessation of the first one. In reaching that conclusion, the BIA focused on the language and structure of the statute, particularly the fact that the service of a notice to appear or commission of a crime are said to “ end ” the alien's period of continuous presence. The Board contrasted that with 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, 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 the language of [the statute] reflects that service of a notice to appear ... 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 (emphasis supplied).

We have held that the Mendoza–Sandino decision is reasonable and 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 an offense in 1999 which triggered the stop-time provision and ended his residency period short of the seven-year statutory requirement. Applying Mendoza–Sandino and Briseno–Flores, that residency period, once terminated, would not restart. Seeking to...