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Michael Alexander Nelson v. Attorney General of the United States

May 22, 2012

MICHAEL ALEXANDER NELSON, PETITIONER,
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (Agency No. A044-843-940)

The opinion of the court was delivered by: Barry, Circuit Judge

PRECEDENTIAL

Argued: April 19, 2012

Before: VANASKIE, BARRY and CUDAHY,*fn1 Circuit Judges

OPINION OF THE COURT

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 re-enter the country through a border checkpoint. Following his re-entry, 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)(1), 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 re-entry 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 re-entry 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 ...


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