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.