BIA Holds That The “Stop-Time” Rule Under INA §240A(d)(1) Is Not Triggered By The Entry Of A Final Order of Removal, But Rather Only By Service Of A Statutorily Compliant Notice To Appear Or The Commission Of Specified Criminal Offenses, In Accordance With The Plain Language Statutory Analysis Provided In Niz-Chavez v. Garland, 141 S. Ct. 1472 (2021). Breaks In Physical Presence Under INA §240A(d)(2) Continue To Be Interpreted As Distinct From Termination Of Physical Presence Under The Stop-Time Rule. Matter Of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), Followed. A Respondent Claiming A Fundamental Change In Law As The Basis For Seeking Sua Sponte Reopening Must Also Establish Prima Facie Eligibility For The Relief Sought. Matter Of G-D-, 22 I&N Dec. 1132 (BIA 1999), Followed.
On January 11, 2023, the Board of Immigration Appeals (BIA or Board) denied a motion to reopen removal proceedings, 18 years after initially dismissing the same respondent’s appeal from the decision of an Immigration Judge (IJ) ordering her removal.
Respondent had attempted to enter the U.S. with another person’s United States passport. Charged with inadmissibility per INA §212(a)(6)(C)(ii) for falsely representing herself to be a U.S. citizen and §212(a)(7)(A)(i)(I) for seeking admission without valid documentation, Respondent was served with a notice to appear (NTA) that did not comply with INA §239(a)(1) because it omitted the date and time of her initial hearing. The Immigration Court subsequently sent her a notice of hearing with this information and she appeared as scheduled. After a venue change, Respondent applied for relief from removal but the IJ denied her applications and ordered her removed. The BIA dismissed her appeal of that decision in 2005, resulting in a final order of removal.
In 2021, Respondent moved to reopen proceedings based on Niz-Chavez v. Garland, 141 S. Ct. 1472 (2021), less than 3 months after the Supreme Court announced its decision in that case; she asked that the Board reopen on its own motion, arguing that under Niz-Chavez her noncompliant NTA did not trigger the “stop-time” rule per INA §240A(d)(1) and that she therefore had continued to accrue continuous physical presence in the U.S. for purposes of cancellation of removal under INA §240A(b)(1)(A), even though she is subject to a final order. As such, she contended that she met the 10 years of continuous physical presence requirement.
In response, DHS did not allege she had stopped accruing continuous physical presence, but argued that the motion should be denied because Respondent “did not otherwise demonstrate prima facie eligibility for cancellation of removal.” Because the BIA found that its adjudication of these 2 issues was dispositive of the motion, it did not reach the other arguments made on appeal.
The decision, in initially analyzing the applicability of the stop-time rule found at INA §240A(d)(1), which holds that continuous residence or physical presence in the U.S. ends when the applicant A) is served an NTA under INA §239(a) or (b) or B) has committed certain criminal offenses, whichever is earliest, noted that 3 circuit courts have held that these are the only 2 circumstances that trigger the rule. Because the entry of a final order of removal “is not one of the discrete circumstances enumerated by the statute”, it cannot by itself trigger the rule. However §240A(d)(2) provides that one will be considered to have failed to maintain continuous physical presence if he or she departs the U.S. for any period over 90 days or in the aggregate exceeding 180 days. As such, the Board has previously held that these additional events amount to “breaks” in presence, even if they are not specifically set forth in the statutory provision.
The opinion also found support for its conclusion in the fact that Congress specified that service of a compliant NTA or the commission of certain crimes “shall” terminate any period of continuous physical presence. The BIA interpreted the statue to hold that every period of continuous physical presence ends when the stop-time rule applies, “leaving no periods of continuous physical presence to be controlled by the final order rule.” As such, the Board concluded that the stop-time rule is only triggered by the service of a compliant NTA or the commission of certain, specified crimes. Respondent’s final order did not trigger the rule and she therefore had continued to accrue physical presence for purposes of cancellation.
Next, in discussing reopening, the decision explained that while Respondent had demonstrated the requisite continuous physical presence, she had not “made a prima facie showing that her removal would cause exceptional and extremely unusual hardship to her United States citizen son or daughter,” her qualifying relatives for the purposes of cancellation under §240A(b)(1)(D). In effect, she had failed to identify and document heightened hardship beyond that which would normally be expected to occur in the circumstances.
Additionally, Respondent did not address whether she merited a favorable exercise of discretion, a showing required for cancellation; this was considered particularly relevant by the BIA “given the length of time that has elapsed since she was ordered removed in 2005 and the fact that she attempted to enter the United States with a false passport.” The motion to reopen was therefore denied as Respondent had not proven a “reasonable likelihood that all statutory requirements for cancellation of removal have been met and that she would deserve a favorable exercise of discretion.” Matter of Chen, 28 I&N Dec. 676 (BIA 2023).
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