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Court Rejects ‘Continuous Presence’ Claim

A Nicaraguan native who entered the U.S in 2000 and overstayed his tourist visa, but who also represented in multiple applications for temporary protected status that he had entered the country in 1998, has failed to prove that he met the 10-year continuous physical presence requirement to request cancellation of removal; the 4th Circuit denies and dismisses his petition for review.

Petitioner concedes that a valid notice to appear stops the accrual of continuous physical presence for 10 years required for cancellation of removal. However, he argues his original notice to appear was invalid and thus did not activate the stop-time rule. He primarily contends that the initial notice’s incorrect charge renders it invalid. He also observes that the notice did not include the specific date and time of the hearing, as required by 8 U.S.C. § 1229(a)(1)(G)(i). We find his position unpersuasive.

After the immigration judge’s ruling, but before deciding petitioner’s appeal, the Board of Immigration Appeals issued a precedent decision holding that the stop-time rule does not require that the notice to appear include the date and time of a hearing. We analyze the BIA’s interpretation in accordance with Chevron USA Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984). We defer to the BIA’s reasonable interpretation, although we note that the notice to appear in this case substantially complied with the requirements of § 1229(a). This is hardly a case, moreover, where the Department of Homeland Security brought trumped-up charges for the purpose of stopping the clock; indeed, DHS initially relied on petitioner’s own statements as to when he entered the country. We do not decide today whether a more egregious case might warrant a different result. We deny this portion of the petition.

Petitioner next argues the IJ improperly denied his motion to terminate the removal proceedings. He believes that if the IJ had terminated the case, rather than continuing it so DHS could amend the charge against him, the stop-time rule would have been triggered only by the new charge – and after the 10 years had accrued. But in asking DHS to file the I-261  form, the IJ did precisely what petitioner had originally requested. Moreover, petitioner did not object to the IJ’s decision to continue the case. We find no abuse of discretion on these facts.

Petitioner also contends the IJ violated his procedural due process rights by pretermitting his application for cancellation of removal. This is prejudicial, he argues, because of “open factual issues” regarding his eligibility for relief: that is, whether the court should measure the 10 years from petitioner’s purported January 1998 entry date, rather than the October 2000 entry. Given petitioner’s earlier contention that DHS should not have given the 1998 entry date any credence, this argument strikes us as dubious at best. In any event, we lack jurisdiction to review it because petitioner failed to raise the question before the BIA. We dismiss this part of his petition.

The petition is denied in part and dismissed in part.

Urbina v. Holder (Diaz) No. 13-1084, March 17, 2014; On Petition for Review; Philip A. Eichorn for petitioner; Jennifer P. Williams, USDOJ, for respondent. VLW 014-2-060, 14 pp.

VLW 014-2-060

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