Stop-Time Victory

The 10th Circuit Federal Court of Appeals granted our request to correct an erroneous decision for our client from the Board of Immigration Appeals (BIA).

“The Attorney General may allow otherwise-removable aliens to remain in the country if, among other things, they have accrued 10 years of continuous physical presence in the United States. We call this form of discretionary relief “cancellation of removal.” Under the statutory “stop-time rule,” the period of continuous physical presence ends (A) when the alien is served with a notice to appear, or (B) when the alien has committed certain criminal offenses. 8 U.S.C. § 1229b(d)(1). Nothing more, nothing less. In the latest installment of “What Triggers the Stop-Time Rule?” the Government asks us to hold that the issuance of a final order of removal is a third, extra-statutory event sufficient to stop the clock. The plain language of the statute supports no such conclusion. Declining to read ambiguity into a statute where none exists, we hold a final order of removal does not stop the accrual of continuous physical presence. … This petition for review represents the latest chapter in the Government’s ongoing efforts to dig itself out of a hole it placed itself in. … After years of statutory short-circuiting, the Government finds itself in the uncomfortable position of being wrong.”

This means that accumulation of continuous physical presence for cancellation of removal is dictated by the plain language of the statute.

The 10th Circuit went on to tell the BIA that it must provide a reasons for its decisions. “By failing to ‘announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted,’ we cannot discern why the BIA found no extraordinary circumstance which would warrant equitable tolling, so the BIA abused its discretion.”

We are very excited for our client and for the positive impact of this case for other clients and foreign nationals in immigration court.


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