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Category: Non-LPR Cancellation

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The Board of Immigration Appeals held in this case that the service of a Notice to Appear in Removal Proceedings (NTA) does not stop the accrual of time toward eligibility for cancellation of removal if the NTA was never filed with an immigration court.

In Ordaz-Gonzalez, the former INS served the NTA on the respondent in 1998. Ordaz-Gonzalez would not have been eligible for cancellation of removal as a non-permanent resident (INA 240A(b)(1) cancellation) if the INS had then filed that NTA with the immigration court because he could not have satisfied the requirement that he have 10 years of continuous physical presence in the U.S. prior to commencement of removal proceedings (certain other events also stop the accrual of time). However, INS never filed that NTA. Instead, in 2004 the successor agency, DHS, served Ordaz-Gonzalez with a new NTA, which it did file with the court. By that time, he alleged that he did have more than 10 years of continuous presence. The immigration judge disagreed. The immigration judge found that the service of the first NTA stopped his accrual of continuous residence.

The Board sustained Ordaz-Gonzalez's appeal of that decision. The Board found the statutory language did not specifically address Ordaz-Gonzalez's unusual situation, noting that Congress probably would not have anticipated it. (Rather, Congress's intent in adding the stop-time rule was to remove an incentive for dilatory tactics in removal proceedings where the NTA was filed with the court.) The Board found the best reading of the statute in Ordaz-Gonzalez's unusual situation was to find that an unfiled NTA does not stop time. Otherwise, even service of an invalid or defective NTA would stop time, as well as service of an NTA where the respondent prevailed in the prior removal proceedings.

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In Matter of Pina-Galindo, the Board found that the respondent was ineligible for cancellation of removal for a non-permanent resident under INA 240A(b)(1) because he had been convicted of two or more offenses with an aggregate sentence to confinement of 5 years or more.

The respondent was put in removal proceedings for being present without admission or parole.  He applied for cancellation of removal based on being physically present in the U.S. for 10 or more years and the hardship that removal would cause to a qualifying relative.  The immigration judge found him ineligible for cancellation because he had multiple alcohol-related convictions, including a conviction for driving while intoxicated for which he received a 10-year sentence. Non-permanent resident cancellation requires, among other things, that the applicant not be convicted of an offense listed at INA 212(a)(2).  Section 212(a)(2) lists several crime-based grounds of inadmissibility, including: crimes involving moral turpitude, controlled substance offenses, and multiple criminal offenses with an aggregate sentence to confinement of 5 years or more.  Pina-Galindo was found ineligible for having multiple convictions with an aggregate sentence to 5 or more years.

The respondent argued that the legislative history indicated that Congress only intended to disqualify applicants with convictions that involved moral turpitude or a controlled substance offense, since the Conference Report stated that only aliens inadmissible under INA 212(a)(2)(A) (the subsection covering crimes involving moral turpitude and controlled substance offenses) would be ineligible for cancellation.  The Board brushed aside that argument by supposing that the Conference Report likely referred only to the most common grounds of disqualification.

The respondent also argued that the language of the grounds of ineligibility for cancellation refer to a singular conviction under 212(a)(2), while multiple convictions are required for an offense to be described under the multiple conviction with 5 year aggregate sentence ground of inadmissibility.  The Board responded that the Dictionary Act (1 U.S.C 1) provides that for any Act of Congress the singular shall include the multiple unless the context requires otherwise.

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The Board of Immigration Appeals held that a conviction for 18 U.S.C. § 1001(a)(2) (2002), making a materially false, fictitious, or fraudulent statement or representation to a government official (here to obtain a U.S. passport) is a crime involving moral turpitude (CIMT). It distinguished earlier decisions that found this was not necessarily the case because the earlier version of the statute did not always require materiality. The current version does. The Board therefore upheld the finding that the noncitizen was ineligible for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA) due to having a felony CIMT.

The Board also reaffirmed that entry on a false claim to U.S. citizenship is not an inspection and admission for purposes of the INA and denied voluntary departure in the exercise of discretion.

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The Board held that grant of an INA 212(h) waiver for an offense listed under section 212(a)(2) would not remove the bar to section 240A(b) cancellation of removal for a non-permanent resident who has a conviction for a 212(a)(2) offense.

The Board reached this conclusion based on the statutory language of 240A(b), which requires that the noncitizen “has not been convicted of an offense under section 212(a)(2).” The Board determined that this language referred to actual convictions, not to whether an applicant was "inadmissible" for such a conviction. In contrast, other portions of the Act (including VAWA cancellation) refer to "inadmissibility" or "deportability." Since 212(h) waives only inadmissibility, but does not affect the existence of the conviction, it does not eliminate a conviction for purposes of eligibility for cancellation.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3722.pdf

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