Argued: May 30, 2018
Petition for Review of an Order of the Board of Immigration
Appeals (Agency Case No. A206-033-430) Immigration Judge:
Honorable Steven A. Morley
Theodore J. Murphy [ARGUED] Murphy Law Firm Counsel for
A. Readler Anthony P. Nicastro Dana M. Camilleri Sabatino F.
Leo [ARGUED] United States Department of Justice Office of
Immigration Litigation Counsel for Respondent
Before: AMBRO, SCIRICA, and SILER, JR. [*] , Circuit Judges.
SCIRICA, CIRCUIT JUDGE
who are unlawfully present in the United States and ordered
removed may apply for cancellation of that removal if they,
among other things, have maintained a continuous physical
presence in the United States for at least ten years and have
been a person of good moral character for such period.
Congress modified the calculation of the physical presence
requirement when it amended the Immigration and Nationality
Act in 1996: Under the "stop-time rule," the
physical presence period ends when the Department of Homeland
Security serves the alien with a notice to
appear.As a result, aliens cannot continue to
accrue physical presence time during the pendency of (often
lengthy) removal proceedings and appeals. At issue is whether
the stop-time rule applies to the time period during which an
alien must exhibit good moral character.
Pablo Antonio Mejia-Castanon maintains that it does, such
that events occurring after the service of a notice to appear
cannot be used to evaluate his good moral character. This
time distinction is critical to Petitioner's application
for cancellation of removal because he admitted to helping
family members illegally enter the United States during the
pendency of his application, a transgression that
indisputably undermines his ability to demonstrate good moral
character. Under Petitioner's interpretation, the
stop-time rule operates to exclude these events from the
evaluation of his moral character. But if the stop-time rule
does not truncate the good moral character window, he will
not satisfy the good moral character requirement and will be
statutorily ineligible for cancellation of removal.
Board of Immigration Appeals rejected Petitioner's
reading of the statute, and two courts of appeals have
deferred to the Board's interpretation under
Chevron. For the reasons that follow, we agree with
our sister circuits and hold that the Board's
interpretation is entitled to Chevron
deference. Under that interpretation, the stop-time
rule does not apply to the good moral character requirement.
Instead, the relevant time period on which to evaluate an
alien's good moral character is the ten-year period prior
to the final administrative decision on an alien's
application for cancellation of removal. We will deny the
the Immigration and Nationality Act (INA), 8 U.S.C. §
1101 et seq., an alien who enters the United States
without permission, and who is not admitted or paroled, is
removable. See 8 U.S.C. §§
1182(a)(6)(A)(i), 1227(a)(1)(A). The Department of Homeland
Security may remove such an alien by initiating removal
proceedings before an Immigration Judge, see id.
§ 1229a, and providing written notice to the alien by
serving him with a "notice to appear," id.
§ 1229(a)(1). The notice to appear informs the alien,
among other things, of the "time and place" of the
removal hearing, the "legal authority under which the
proceedings are conducted," and the "charges
against the alien." Id. §
1229(a)(1)(G)(i), (B), (D). An alien served with a notice to
appear may challenge his removal on the merits or admit his
removability while seeking certain discretionary relief.
to amendments in 1996, one type of discretionary relief an
alien could seek was suspension of deportation. The INA
provided that "the Attorney General may, in his
discretion, suspend deportation" of an alien if he (1)
had "been physically present in the United States for a
continuous period of not less than seven years immediately
preceding the date of such application;" (2)
"prove[d] that during all of such period he was and is a
person of good moral character;" and (3) was "a
person whose deportation would . . . result in extreme
hardship to the alien or to his spouse, parent, or child, who
is a citizen of the United States or an alien lawfully
admitted for permanent residence." 8 U.S.C. §
1254(a)(1) (1994); see also I.N.S. v. Chadha, 462
U.S. 919, 923-24 (1983). "Even if these prerequisites
[we]re satisfied," however, "it remain[ed] in the
discretion of the Attorney General to suspend, or refuse to
suspend, deportation." I.N.S. v. Rios-Pineda,
471 U.S. 444, 446 (1985) (citations omitted).
this pre-1996 formulation, the Board of Immigration Appeals
interpreted the physical presence and good moral character
time periods to be identical. See In re
Ortega-Cabrera, 23 I. & N. Dec. 793, 794 (B.I.A.
2005) (citations omitted). And because the Board construed
"such application" in the phrase "immediately
preceding the date of such application," 8 U.S.C. §
1254(a)(1) (1994), to be "a continuing one," the
seven-year time period for both "continu[ed] to
accrue" through the Board's final administrative
decision on an alien's application for cancellation of
removal. Ortega-Cabrera, 23 I. & N. Dec. at 794.
In other words, an alien could accrue the required seven
years of physical presence during the pendency of her removal
proceedings and appeals, and her moral character would also
be evaluated until the final adjudication of her application.
statutory structure was problematic, however, because it
created a "substantial incentive" for those aliens
facing deportation "to prolong litigation" and to
"stall[ ] physical departure in the hope of eventually
satisfying" the seven-year requirement.
Rios-Pineda, 471 U.S. at 450. Congress believed
suspension of deportation was being abused and exploited,
particularly by aliens seeking to "accrue time toward
the seven year threshold even after they ha[d] been placed in
deportation proceedings." H.R. Rep. 104-469, at 122
(1996); see also In re Cisneros, 23 I. & N. Dec.
668, 670 (B.I.A. 2004) ("[A]liens in deportation
proceedings had knowingly filed meritless applications for
relief or otherwise exploited administrative delays in the
hearing and appeal process in order to 'buy time,'
during which they could acquire a period of continuous
presence that would qualify them for forms of relief that
were unavailable to them when proceedings were
initiated."). Congress also believed the
"'extreme hardship' standard"-the final
statutory requirement for suspension of
deportation--"ha[d] been weakened by recent
administrative decisions." H.R. Rep. No. 104-828, at 213
(1996) (Conf. Rep.).
address these concerns, Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA). See Pub. L. No. 104-208, Div. C, Tit. III,
Subtit. A, sec. 304(a)(3), § 240A, 110 Stat. 3009-594 to
3009-596. Relevant here, IIRIRA amended the INA to its
current form by replacing suspension of deportation with a
new and more limited form of relief called "cancellation
of removal." See 8 U.S.C. § 1229b; see
also H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.).
And IIRIRA created the stop-time rule, designed to prevent an
alien from accruing physical presence time during the
pendency of immigration proceedings.
introduced significant differences for aliens seeking relief
from removal: Congress extended the length of time required
for an alien to be physically present from seven to ten
years, excluded from eligibility those aliens who were
convicted of certain offenses under the INA, and strengthened
the hardship requirement from "extreme hardship" to
an "exceptional and extremely unusual hardship."
Compare 8 U.S.C. § 1254(a)(1) (1994)
(repealed), with 8 U.S.C. § 1229b(b)(1)(A)-(D).
See also H.R. Rep. No. 104-828, at 213 (1996) (Conf.
Rep.) ("The managers have deliberately changed the
required showing of hardship from 'extreme hardship'
to 'exceptional and extremely unusual hardship' to
emphasize that the alien must provide evidence of harm to his
spouse, parent, or child substantially beyond that which
ordinarily would be expected to result from the alien's
current law as adopted in IIRIRA, to be eligible for
cancellation of removal an alien must: (1) have "been
physically present in the United States for a continuous
period of not less than 10 years immediately
preceding the date of such application;" (2) have
"been a person of good moral character during such
period;" (3) have "not been
convicted" of certain offenses under the INA,
including crimes involving moral turpitude, certain felonies,
and document fraud; and (4) must "establish[ ] that
removal would result in exceptional and extremely unusual
hardship to the alien's spouse, parent, or child,
who is a citizen of the United States or an alien lawfully
admitted for permanent residence." 8 U.S.C. §
1229b(b)(1)(A)-(D) (emphasis added). If an alien satisfies these
four requirements, an Immigration Judge may grant
cancellation of removal after balancing "the favorable
and adverse factors" of the alien's particular case.
In re A-M-, 25 I. & N. Dec. 66, 76 (B.I.A.
eliminate the incentive to delay immigration proceedings to
accrue physical presence time, IIRIRA created the stop-time
rule in a separate subsection titled "Special rules
relating to continuous residence or physical presence."
8 U.S.C. § 1229b(d). Relevant here, the stop-time rule
provides, "[f]or the purposes of [cancellation of
removal]" an alien's period of continuous physical
presence "shall be deemed to end . . . when the alien is
served a notice to appear under section 1229(a)."
Id. § 1229b(d)(1).
stop-time rule is only triggered upon service of a notice to
appear "that, at the very least, 'specif[ies]'
the 'time and place' of the removal
proceedings." Pereira v. Sessions, 138 S.Ct.
2105, 2114 (2018) (quoting 8 U.S.C. § 1229(a)(1)(G)(i))
(alteration in original). Prior to Pereira, a number
of other courts of appeals had adopted a Board interpretation
finding § 1229b(d)(1) "does not impose substantive
requirements" on notices to appear. In re
Camarillo, 25 I. & N. Dec. 644, 647 (B.I.A.
2011). Pereira dispatched with this
understanding, characterizing § 1229(a)(1) as a
definitional provision establishing hearing time and place
among the minimum contents needed for a notice to appear to
trigger the stop-time rule.
if an alien is served with a notice to appear prior to
accruing sufficient physical presence time, he cannot satisfy
the physical presence requirement--and is therefore
ineligible for cancellation of removal--no matter how long
his immigration proceedings continue. Service of a notice to
appear that fails to set a hearing time and place does not
trigger the stop-time rule.
eligible for cancellation of removal, an alien also must have
"been a person of good moral character" during a
continuous ten-year period. 8 U.S.C. § 1229b(b)(1)(B).
Under the INA, "[n]o person shall be regarded as, or
found to be, a person of good moral character who,"
during the relevant time period satisfies any of a lengthy
list of prohibited conduct. 8 U.S.C. § 1101(f); see
also id. § 1101(f)(1)-(9). The list includes, for
example, being "a habitual drunkard," id.
§ 1101(f)(1), deriving income "principally from
illegal gambling activities," id. §
1101(f)(4), and giving false testimony to gain immigration
benefits, id. § ...