Okeke v. Atty Gen USA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

5-18-2005

Okeke v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-1831

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 03-1831/4640

__________

ANDERSON JUDE OKEKE,

Petitioner,

v.

ALBERTO R. GONZALES,*

Attorney General of the United States,

Respondent.

__________

On Petition for Review of Orders of Removal

from the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

(BIA No. A26-188-596)

__________

Argued: October 28, 2004

___________

* Attorney General Alberto Gonzales has been substituted for

former Attorney General John Ashcroft, the original respondent in

this case, pursuant to Fed. R. App. P. 43(c).

Before: NYGAARD, AMBRO, and GARTH, Circuit Judges

(Opinion Filed: May 18, 2005)

__________

OPINION OF THE COURT

__________

Joseph C. Hohenstein, Esq. (ARGUED)

Nationalities Service Center

1300 Spruce Street

Philadelphia, PA 19107

Attorney for Petitioner

Anderson Jude Okeke

James E. Grimes, Esq. (ARGUED)

John D. Williams, Esq.

Douglas E. Ginsburg, Esq.

Linda S. Wernery, Esq.

Mary Jane Candaux, Esq.

United States Department of Justice

Office of Immigration Litigation

Ben Franklin Station

P.O. Box 878, Civil Division

Washington, D.C. 20044

Attorney for Respondent

Attorney General of the United States

Garth, Circuit Judge:

Anderson Jude Okeke, a native and citizen of Nigeria,

petitions for review of two orders from the Board of

Immigration Appeals (“BIA”). Those orders affirmed the

Immigration Judge’s (“IJ”) decision that Okeke could not

demonstrate the requisite continuous physical presence in the

United States in order to qualify for cancellation of removal.

Essentially, the BIA found that the “stop-time” provision (8

U.S.C. § 1229b(d)(1)), once triggered, precludes the accrual of

a new period of continuous presence, which in this case would

possibly commence with Okeke’s lawful reentry into the United

States. That lawful reentry–the critical fact on appeal–occurred

after Okeke committed a controlled substance offense, which,

pursuant to 8 U.S.C. § 1229b(d)(1), clearly ended any prior

period of continuous physical presence. The question presented

in this appeal, therefore, is whether Okeke is entitled to a new

period of continuous physical presence, commencing upon his

lawful reentry into the United States, so as to allow him to

accrue the time required to establish eligibility for cancellation

of removal. See 8 U.S.C. § 1229b. For the reasons stated

herein, this Opinion of the Court concludes that the clock should

have restarted upon Okeke’s reentry. The Petition for Review

will therefore be granted.

I.

The facts on appeal are reasonably straightforward.

Okeke first entered the United States on September 15, 1981,

pursuant to a F-1 student visa in order to attend Touro College.

In January of 1983, after returning to Nigeria for personal

reasons, Okeke attempted to reenter the United States at John F.

Kennedy Airport, whereupon he was arrested for possession of

marijuana. Okeke has testified that he appeared before a court

in Queens, New York, where he pled guilty to possession of

marijuana and received a sentence of five years probation.

After that incident, Okeke returned to Nigeria on two

further occasions, once in December 1983 and then again in

April 1984. On both occasions, he was lawfully re-admitted to

the United States under his student visa. Since returning from

Nigeria in May of 1984, Okeke has lived here without

interruption.

On December 29, 1997, the Immigration and

Naturalization Service (“INS”) filed a Notice to Appear

(“NTA”), charging Okeke with removability under 8 U.S.C. §

1227(a)(1)(C)(i), inasmuch as he failed to maintain or comply

with the terms of his nonimmigrant admission to the United

States (i.e., he no longer attended Touro College).1 This was the

1

The NTA stated as follows:

The Service alleges that you:

1. You are not a citizen or national of the United States;

2. You are a native of Nigeria and a citizen of Nigeria;

3. You were admitted to the United States at New York, NY

on or about May 5, 1984 as a nonimmigrant student to attend

Touro College in New York, N.Y. for your duration of stay;

4. You did not attend Touro College in New York, N.Y.

after May 1985. You have failed to maintain or comply with

the conditions of the nonimmigrant status under which you

were admitted.

On the basis of the foregoing, it is charged that you are

subject to removal from the United States pursuant to the

only ground of deportation charged in the NTA. Okeke

admitted to the allegations in the NTA, but filed an application

for cancellation of removal.2

At the removal hearing on July 27, 1999, the IJ concluded

that Okeke could not demonstrate the requisite continuous

physical presence in the United States to qualify for cancellation

of removal. The IJ found sufficient proof of the commission of

a controlled substance offense,3 a crime providing for

inadmissibility. Such an act would have triggered the “stop-

time” provision, see 8 U.S.C. § 1229b(d)(1), and would have

stopped Okeke’s accrual of continuous physical presence well

before he could establish the necessary ten years required by the

cancellation of removal statute: Okeke entered the country in

1981 and committed the crime in 1983.

On appeal to the BIA, Okeke contested the IJ’s finding

on two grounds. First, Okeke argued that there was insufficient

following provision(s) of law:

Section 237(a)(1)(C)(i) of the [] Immigration and Nationality

Act (Act), as amended, in that after admission as a

nonimmigrant under section 101(a)(15) of the Act, you failed

to maintain or comply with the conditions of the

nonimmigrant status under which you were admitted.

2

Okeke and his wife, who together have six children, all of

whom are United States citizens, self-reported to the INS to pursue

their cancellation of removal claims. The INS issued the NTAs in

response thereto. Mrs. Okeke (A74-993-531) received approval for

her cancellation of removal claim (which was separated from her

husband’s claim at the July 27, 1999 hearing) on December 12, 2002,

because she demonstrated the “exceptional and extremely unusual

hardship” required by the statute.

3

The IJ based this finding on Okeke’s admissions during the

hearing and a National Criminal Information Center (“NCIC”) print-

out provided by the government.

proof of conviction, precluding the application of the “stop-

time” provision. The BIA rejected this contention, finding that

both the admissions and the NCIC report were probative of

Okeke’s commission of a controlled substance offense. Second,

Okeke challenged the IJ’s decision that he failed to establish the

requisite ten years continuous physical presence to qualify for

cancellation of removal.

Rejecting this contention as well, the BIA concluded that

the commission of a controlled substance offense is not simply

interruptive of the period of continuous physical presence, but

is a terminating event, after which no further continuous

presence can accrue for purposes of cancellation of removal.

The BIA thus affirmed the IJ’s decision, ordering Okeke to

voluntarily depart from the United States.

Thereafter, Okeke filed a motion for reconsideration,

which was denied by the BIA on November 28, 2003, for failure

to assert new legal arguments. Okeke filed timely petitions for

review of both BIA decisions, which were consolidated for

purposes of appeal on December 5, 2003.

II.

Appellate jurisdiction is derived from 8 U.S.C. § 1252.4

4

Because this appeal concerns the BIA’s interpretation of the

“stop-time” provision, 8 U.S.C. §§ 1229b(b)(1)(A), 1229b(d)(1), a

purely legal determination, the prohibition against appellate review

of discretionary determinations is not applicable. See 8 U.S.C. §

1252(a)(2)(B) (“no court shall have jurisdiction to review . . . any

other decision or action of the Attorney General the authority for

which is specified under this subchapter [8 U.S.C. §§ 1151-1378] to

be in the discretion of the Attorney General”) (emphasis added);

Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir. 2001) (holding

that “continuous physical presence” element is not a discretionary

factor); see also Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178

The Court must review the BIA’s statutory interpretation of the

INA under the deferential standard of Chevron, U.S.A., Inc. v.

Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984).

In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), this Court stated,

“‘if the statute is silent or ambiguous with respect to the specific

issue, the question for the court is whether the agency’s answer

is based on a permissible construction of the statute.’” Id. at

1239 (quoting Chevron, 467 U.S. at 843).

III.

Okeke sought cancellation of removal under 8 U.S.C. §

1229b(b).5 Inasmuch as the BIA held that Okeke failed to meet

(3d Cir. 2003) (concluding “that, for nondiscretionary factors, the

Court maintains jurisdiction, but as to discretionary decisions we lack

jurisdiction”).

5

8 U.S.C. § 1229b(b)(1) provides that the Attorney General

may cancel removal of an inadmissible or deportable alien if the alien

meets four threshold requirements:

The Attorney General may cancel removal of, and adjust to

the status of an alien lawfully admitted for permanent

residence, an alien who is inadmissible or deportable from the

United States if the alien--

(A) has been physically present in the United States for a

continuous period of not less than 10 years immediately

preceding the date of such application;

(B) has been a person of good moral character during such

period;

(C) has not been convicted of an offense under section

1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title (except in a

case described in section 1227(a)(7) of this title where the

Attorney General exercises discretion to grant a waiver); and

(D) establishes 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

the first threshold requirement for consideration of cancellation

of deportation–continuous physical presence in the United States

for not less than ten years, this opinion limits its discussion to

that narrow issue.

A period of continuous presence is “deemed to end”

either (1) when an alien is served with a Notice to Appear

placing him in immigration proceedings or (2) when the alien

commits an offense described in 8 U.S.C. § 1182(a)(2) that

renders him inadmissible under that section or deportable under

8 U.S.C. § 1227(a)(2) or (a)(4), “whichever is earliest.” 8

U.S.C. § 1229b(d)(1). Here, Okeke’s commission of a

controlled substance offense in 1983 is “an offense referred to

in” 8 U.S.C. § 1182(a)(2)(A)(i)(II), which triggered the “stop-

time” provision of the cancellation of removal statute, 8 U.S.C.

§ 1229b(d)(1).6

Okeke contends that his most recent admission to the

admitted for permanent residence.

Id.

6

A threshold question here is whether the BIA correctly

found that Okeke had committed a crime of inadmissibility, where the

record evidence included an uncertified NCIC report and Okeke’s

admission. Only upon a proper finding of the fact of a controlled

substance offense does the analysis proceed to the next inquiry –

whether the BIA properly interpreted the “stop-time” provision of the

cancellation of removal statute. However, the Court need not dwell

on this initial question because it concludes that, even if there was

sufficient evidence of the commission of a crime of inadmissibility,

the BIA’s interpretation of the “stop-time” provision was nevertheless

erroneous. The Court hastens to add, however, that Okeke’s

admission to the offense and conviction, coupled with the

corroborative evidence in the NCIC report, would appear to support

the BIA’s finding of a crime of inadmissibility.

United States on May 5, 1984 established a new and valid period

of continuous presence. The government disagrees, relying on

Matter of Mendoza-Sandino, 22 I. & N. Dec. 1236 (BIA 2000),

for the proposition that once a triggering event occurs –

commission of a controlled substance offense in this case – the

continuous physical presence clock does not start anew.

In Mendoza-Sandino, a majority of the en banc BIA

interpreted INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1), to mean

“that the continuous physical presence clock does not start anew

after the service of an Order to Show Cause.” Id. at 1240.

Several courts of appeals have deferred to this interpretation.

See Ram v. INS, 243 F.3d 510, 517-18 (9th Cir. 2001) (holding

that alien does not begin a new period of continuous physical

presence after being served with an Order to Show Cause);

Najjar v. Ashcroft, 257 F.3d at 1299-1300; McBride v. INS, 238

F.3d 371, 377 (5th Cir. 2001); Afolayan v. INS, 219 F.3d 784,

789 (8th Cir. 2000).

However, none of those cases, Mendoza-Sandino itself

included, addressed the distinct issue of whether lawful reentry

after commission of an offense, rendering the alien inadmissible,

restarts the clock. Indeed, none of those cases involved an

individual who left the United States and reentered. In

Mendoza-Sandino, the petitioner had been charged in an Order

to Show Cause and then had deliberately delayed or “stalled” all

proceedings until seven years had elapsed in order to qualify for

the requisite continuous physical presence.7 Mendoza-Sandino

was written to forestall reliance on a seven-year presence where

the petitioner had sought to “buy time.” That is not the situation

here. Because Okeke lawfully reentered the country (twice)

after a previous clock-stopping event, this case is factually,

indeed dramatically, different, and the government’s reliance on

7

8 U.S.C. § 1229b(b)(1) now requires ten years continuous

physical presence. See note 5 supra.

Mendoza-Sandino is misplaced.8

This analysis is therefore informed by another published

decision from the BIA – In re Ignacio Cisneros-Gonzalez, 23 I.

& N. Dec. 668 (BIA 2004). In Cisneros-Gonzalez, the

respondent – a native and citizen of Mexico – was served with

an Order to Show Cause charging him with deportability as an

alien who entered the United States without inspection, and he

was deported to Mexico the same day. He returned to the

United States the very next day without being admitted or

paroled, and had remained in this country since that time. He

had thus ostensibly accrued the requisite ten years of continuous

physical presence from the time of his unlawful re-entry.

Distinguishing Mendoza-Sandino, Cisneros-Gonzalez

quite properly states:

[Mendoza-Sandino] did not resolve the question,

presented here, whether an alien who departed the United

States after being served with a valid charging document

can seek relief in a subsequent removal proceeding,

based on a new period of continuous physical presence

measured from the date of his return. Applying the

“stop-time” rule to an alien in these latter circumstances

8

Judge Ambro, in his concurrence, interprets Mendoza as an

incorrect expression of § 1229b(d)(1), contending that it wrongfully

makes no provision for a new period of continuous physical presence.

By contrast, Judge Nygaard in his dissenting opinion relies on

Mendoza to preclude the accrual of a second period of continuous

physical presence. Mendoza, of course, addressed an entirely

different issue (Mendoza held that an alien could not qualify for the

required continuous physical presence by deliberately delaying

proceedings, after an NTA had been served, until sufficient years had

elapsed). Because this opinion relies on the authority and

applicability of Cisneros, it does not join the interpretations of

Mendoza given by either Judge Ambro or Judge Nygaard.

implicates ambiguities in the language and purpose of

section 240A(d)(1) that were not present in Matter of

Mendoza-Sandino, supra.

23 I. & N. Dec. at 670. At issue in Cisneros, then, was whether

an alien who departs the United States can, upon his subsequent

return, even if illegal, accrue a new period of continuous

physical presence – measured from the date of his return – so as

to demonstrate statutory eligibility for cancellation of removal.

The BIA held that such an alien could establish the requisite

continuous physical presence. Id. at 672.

Cisneros-Gonzalez, therefore, allows for the accrual of a

new period of continuous physical presence upon an alien’s

reentry into the United States. The BIA, at the time of its ruling

in this case, relied heavily on Mendoza-Sandino, lacking the

benefit of the Cisneros-Gonzalez decision, which was issued

after the BIA’s decision. Applying Cisneros-Gonzalez here, the

clock started anew as soon as Okeke reentered the country in

1984.

Cisneros-Gonzalez, it is true, involved two removal

proceedings, where the clock stopped upon the filing of the

Notice to Appear in the first removal proceeding. Okeke,

according to the record, had committed a crime of

inadmissibility, but had not been served with a Notice to Appear

until 1997. However, the commission of a specified crime is the

functional equivalent of the service of a Notice to Appear for

purposes of triggering the “stop-time” provision. As stated

earlier, a period of continuous presence is “deemed to end”

either (1) when an alien is served with a Notice to Appear

placing him in immigration proceedings or (2) when the alien

commits an offense described in 8 U.S.C. § 1182(a)(2) that

renders him inadmissible under that section or deportable under

8 U.S.C. § 1227(a)(2) or (a)(4), “whichever is earliest.” 8

U.S.C. § 1229b(d)(1). As a result, the difference in triggering

events in no way precludes the application of Cisneros-

Gonzalez.

What matters here is the reason for the recommencement

of the accrual period for purposes of cancellation of removal.

As in Cisneros-Gonzalez, Okeke reentered the country, though

the reentry in his case was lawful. The critical fact for

restarting the clock in Cisneros-Gonzalez was the reentry, not

the filing of the Notice to Appear in the first removal

proceeding. Where, as here, there is (lawful) reentry after a

clock-stopping event (i.e., the commission of a controlled

substance offense), the clock starts anew. Indeed, Okeke is an

a fortiori application of the Cisneros doctrine, particularly when

one considers that Okeke’s reentry was lawful and Cisneros’s

was not – yet Cisneros was allowed to qualify for his continuous

presence.

Moreover, this case is not about deporting an alien who

had committed a crime. The NTA in this case made no reference

to Okeke’s alleged commission of the controlled substance

offense. The Court expresses no opinion as to Okeke’s

immigrant status had such a charge been made, either when the

action was allegedly committed or when the NTA was

eventually filed.

The NTA provides that Okeke entered the United States

on May 5, 1984 to attend Touro College. It is significant that,

although Okeke had initially entered the United States in 1981

and had, after departing, reentered again in December of 1983,

the NTA contained no charge respecting his alleged commission

of a controlled substance offence in January of 1983. Rather, as

note 1 above reflects, the NTA confines itself to the student

status of Okeke. And it is that status that is dealt with here.

Pursuant to the express terms of the NTA, then, it is that

final entry that should be considered in calculating the ten years

continuous physical presence. To focus on events occurring

prior to that time, when the NTA makes no mention of them, is

both illogical and unjust.

IV.

Okeke admitted to committing a controlled substance

offense in 1983; “an offense referred to in” 8 U.S.C. §

1182(a)(2)(A)(i)(II), which implicated the “stop-time” provision

of the cancellation of removal statute, 8 U.S.C. § 1229b(d)(1).

Yet, because Okeke lawfully reentered this country after

committing a crime of inadmissibility, this opinion holds that the

accrual period should have recommenced. See Matter of

Cisneros, supra.

Accordingly, the Court will GRANT the Petition for

Review of the BIA’s decisions, and remand this matter to the

BIA for further proceedings consistent with this opinion.9

9

On November 28, 2003, the BIA denied Okeke’s motion for

reconsideration of its previous decision. Although Okeke also seeks

review of that decision, it has been rendered moot by our decision to

grant his Petition for Review of the BIA’s February 25, 2003 order

dismissing his appeal.

AMBRO, Circuit Judge, concurring

Mr. Okeke seeks cancellation of removal. To qualify, he must

establish, among other things, continuous physical presence in the

United States for ten years immediately preceding his application for

that relief. 8 U.S.C. § 1229b(b)(1)(A).10 “[A]ny period” of

continuous physical presence is “deemed to end” when an alien

commits a controlled substance offense. 8 U.S.C. § 1229b(d)(1);11 8

U.S.C. § 1182(a)(2). The Board of Immigration Appeals (“BIA”)

held that, under § 1229b(d)(1), Okeke’s 1983 controlled substance

offense12 ended his period of continuous physical presence. The BIA

10

Section 1229b(b)(1)(A) reads:

[The Attorney General may cancel removal of an

alien who is inadmissible or deportable from the

United States if the alien] has been physically

present in the United States for a continuous

period of not less than 10 years immediately

preceding the date of such application[.]

11

Section 1229b(d)(1) provides:

Termination of continuous period

For purposes of this section, any period of continuous

residence or continuous physical presence in the United

States shall be deemed to end (A) . . . when the alien is

served a notice to appear under section 1229(a) of this

title, or (B) when the alien has committed an offense

referred to in section 1182(a)(2) of this title that renders

the alien inadmissible to the United States under section

1182(a)(2) of this title or removable from the United

States under section 1227(a)(2) or 1227(a)(4) of this

title, whichever is earliest.

12

The BIA held that in 1983 Okeke possessed marijuana in

violation of New York Penal Law § 221.20.

further held that, under In re Mendoza-Sandino, 22 I. & N. Dec. 1236

(BIA 2000), a new period of continuous physical presence could not

begin after an old period ends under § 1229b(d)(1). It thus concluded

that Okeke had not accrued the required ten year period

necessary to qualify for cancellation of removal under

§ 1229b(b)(1), as he first entered the United States in 1981 and

his period of continuous physical presence ended in 1983 (with

the commission of the drug offense in New York) and could not

start over.

Okeke argues that, even assuming he committed a

qualifying drug offense in 1983, he began a new period of

continuous physical presence on May 5, 1984—the date of his

most recent admission into the United States. Because he was

continuously physically present in the United States until he

applied for cancellation of removal more than ten years later in

1998, Okeke contends he meets the ten year period requirement.

Both Judge Garth and I agree with Okeke. But we do so

by traveling different paths of analysis. He believes the BIA’s

recent decision in In re Cisneros-Gonzalez, 23 I. & N. Dec. 668

(BIA 2004), limits the reach of Mendoza and mandates the result

here. I do not believe Cisneros goes so far and instead conclude

that Mendoza is an impermissible reading of § 1229b(d)(1),

even after according the BIA the deference called for under

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837 (1984).

I. Cisneros does not hold that a new period of

continuous physical presence begins whenever

an alien reenters the United States.

As Judge Garth correctly notes, Cisneros states that

Mendoza “did not resolve the question, presented here, whether

an alien who departed the United States after being served with

a valid charging document can seek relief in a subsequent

removal proceeding, based on a new period of continuous

physical presence measured from the date of his return.”

Cisneros, 23 I. & N. Dec. at 670. In fact, Cisneros holds that an

alien who departed the United States after being served with a

valid charging document can seek relief in a subsequent removal

proceeding, based on a new period of continuous physical

presence measured from the date of his return. However, the

reason the alien can seek relief in a subsequent removal

proceeding is not because he or she left and reentered the United

States. Rather, the BIA reasoned, it is because “the ‘notice to

appear’ referred to in section [1229b(d)(1)] pertains only to the

charging document served in the proceedings in which the alien

applies for cancellation of removal, and not to charging

documents served on the alien in prior proceedings” (hereinafter

“the Cisneros rule”).13 Id. at 672.

The Cisneros rule, in context, applied as follows.

Cisneros received an NTA for his first removal proceeding

(“NTA #1”) in 1990. He was deported on January 10, 1991, and

illegally returned the next day. He was present in the United

States from then until he received an NTA for his second

removal proceeding (“NTA #2”) on June 5, 2001—more than 10

years after his illegal return. When Cisneros applied to cancel

the removal order based on the proceedings begun on June 5,

2001, the BIA held that only NTA #2, not NTA #1, ended his

period of physical presence under § 1229b(d)(1) because, to

repeat, “the ‘notice to appear’ referred to in [§ 1229b(d)(1)]

pertains only to the charging document served in the

13

Cisneros crafted a sensible rule for calculating periods

of presence with regard to notices to appear (“NTAs”) insofar

as, under that case, if the outcome of the proceedings initiated

by an NTA is favorable to an alien (or if an alien receives an

NTA by mistake), the alien will not “lose” continuous physical

presence time accumulated before he or she received the

“invalid” NTA.

proceedings in which [Cisneros] applie[d] for cancellation of

removal [that is, NTA #2], and not to charging documents

served on [him] in prior proceedings [that is, NTA #1].”

Cisneros, 23 I. & N. Dec. at 672.

In this context, I do not believe that Okeke can rely on

Cisneros, for it does not overrule Mendoza’s determination that

“the clock cannot be reset so that an alien accrues continuous

physical presence . . . after . . . the commission of a specified

crime.” Mendoza, 22 I. & N. Dec. at 1240. Cisneros does not

change Mendoza’s rule that, when an alien commits a crime

specified in § 1229b(d)(1) or receives an NTA specified in

§ 1229b(d)(1), any period of continuous presence ends and no

other period shall ever begin again. Instead, Cisneros merely

clarifies which NTA is specified in § 1229b(d)(1) (only the

NTA served in the proceedings in which the alien applies for

cancellation of removal). Cisneros, 23 I. & N. Dec. at 670.

Under Mendoza, and even after Cisneros, Okeke cannot reset

his clock and accrue continuous physical presence time because

he committed an offense specified in § 1229b(d)(1). The mere

fact of his subsequent reentering (whether lawful or unlawful)

does not change this situation. Thus, if Okeke is to prevail, I

believe that we must conclude that Mendoza’s interpretation of

§ 1229b(d)(1) is not permitted. For the following reasons, I

believe we should do so.

II. Okeke began a new period of continuous

physical presence after he committed a

specified offense because Mendoza’s

interpretation of § 1229b(d)(1) is

impermissible. Section 1229b(d)(1) must be

interpreted to allow the continuous physical

presence clock to restart after the commission

of a specified offense .

Mendoza’s interpretation of § 1229b(d)(1)—that the

clock cannot be reset so that an alien accrues continuous

physical presence after the commission of a specified

offense—is incorrect. Properly construing the statute, Okeke

began a new period of continuous physical presence after he

committed the offense at issue.

We review the BIA’s interpretation of § 1229b(d)(1)

according to the standards set out in Chevron. See Katsis v.

INS, 997 F.2d 1067, 1069 (3d Cir. 1993). If Congress has

directly spoken on an issue, we give the BIA no deference.

Chevron, 467 U.S. at 842-43. If a statute is silent or ambiguous

on the issue, we ask whether the BIA’s interpretation is based

on a permissible construction of the statute. Id. at 843.

However, “[t]he judiciary is the final authority on issues of

statutory construction . . . . If a court, employing traditional

tools of statutory construction, ascertains that Congress had an

intention on the precise question at issue, that intention is the

law and must be given effect.” Chevron, 467 U.S. at 843 n.9

(citations omitted).

Perhaps the most fundamental principle of statutory

construction is that words in a statute must be given their

ordinary meaning whenever possible. See Walters v. Metro.

Educ. Enters., Inc., 519 U.S. 202, 207 (1997). Section

1229b(d)(1)’s clause “any period . . . shall be deemed to end”

should be given its ordinary meaning: any period ends. The

ordinary meaning of this clause simply does not imply that

future periods of continuous presence are barred. Yet, Mendoza

not only interpreted it to mean any period ends, but also added

whole cloth that no future period can begin anew. 22 I. & N.

Dec. at 1240.

Another plain language argument for interpreting

§ 1229b(d)(1) to allow the continuous physical presence clock

to restart focuses on its “any period” language. “[A]ny”

indicates that there can be multiple periods of physical presence.

As BIA Member Guendelsberger’s dissent in Mendoza notes:

the core statement that “any period of continuous

presence . . . shall be deemed to end” strongly

suggests that there may be more than one period

to be considered. Although [§ 1229b(d)] clearly

cuts off the accrual of a period of time prior to a

specified event, it does not speak to periods of

time after the event in question. The reference to

ending “any period” of physical presence suggests

that another period of physical presence ensues.

22 I. & N. Dec. at 1245-46 (Guendelsberger, dissenting).

In addition, interpreting § 1229b(d)(1) to allow the

continuous physical presence clock to restart avoids a logical

conundrum, as Mendoza’s interpretation requires periods of

continuous physical presence to “end” before they even begin.

BIA Member Villageliu, dissenting in Mendoza, pointed out this

incongruity:

The word “period” means “an interval of time.”

Putting the words “any period” in context with the

words “continuous physical presence” cannot

logically refer to a period of time whose

continuity would be ended before the period of

time even begins because, logically, continuity

would not transcend its own ending.

22 I. & N. Dec. at 1254 (citation omitted) (Villageliu,

dissenting).

A further argument for interpreting § 1229b(d)(1) to

allow the continuous physical presence clock to restart is that it

preserves the concept of a “period of continuous physical

presence,” explicitly described in the plain language of the

statute, with regard to aliens seeking cancellation of removal

under § 1229b(b)(1) who have committed a crime specified in

§ 1229b(d)(1). Otherwise, the concept of a “period of

continuous physical presence” is destroyed because, as

explained below, the effective rule under Mendoza’s

interpretation of § 1229b(d)(1) is that if you commit a specified

offense you can never get a cancellation of removal under

§ 1229b(b)(1) (regardless of any periods of continuous presence,

no matter when or how long they were). If Congress had meant

this to be the rule, it would simply have stated it.

The reason the effective rule under Mendoza’s

interpretation of § 1229b(d)(1) is that if you commit a specified

offense you can never get a cancellation of removal under

§ 1229b(b)(1) is as follows. Section 1229b(b)(1) requires that,

for cancellation of removal, an alien must have been “physically

present in the United States for a continuous period of not less

than ten years immediately preceding the date of such

application.” 8 U.S.C. § 1229b(b)(1)(A) (emphasis added).

Thus, an alien cannot use an “old period”—that is, a past period

that is not “immediately preceding” his or her application for

cancellation of removal under § 1229b(b)(1)—to support such

an application. Thus, for example, an alien filing an application

in year 19, who arrived in the United States in year 0 and

committed a specified offense in year 10, could not use the

period from year 0 to year 10 because that period does not

“immediately preced[e]” the filing of the application in year 19.

Hence, if (1) an alien can never use an old period, and (2) under

Mendoza’s interpretation, the clock can never restart, Mendoza,

22 I. & N. Dec. at 1240, then as soon as an alien commits a

specified offense he or she will never be able to show ten years

of continuous physical presence immediately preceding the

application for cancellation of removal. Therefore, the effective

rule under Mendoza’s interpretation of § 1229b(d)(1) is that if

you commit a specified offense you can never get a cancellation

of removal under § 1229b(b)(1). In this context, interpreting

§ 1229b(d)(1) to allow the continuous physical presence clock

to restart preserves the concept of a “period of continuous

physical presence,” otherwise destroyed under Mendoza’s

interpretation of § 1229b(d)(1), with regard to aliens seeking

cancellation of removal under § 1229b(b)(1) who have

committed a crime specified in § 1229b(d)(1).

Importantly, there is an event that bars an alien from

receiving cancellation of removal under § 1229b(b)(1), but it is

not commission of a specified offense; rather, it is conviction of

a specified offense. Section 1229b(b)(1)(C) says that an alien

can never get a cancellation of removal under § 1229b(b)(1) if

he or she has “been convicted” of a specified offense.14 If the

rule was the same for commissions and convictions, why did

Congress make the distinction? 15

14

Judge Nygaard would hold that Okeke is ineligible for

cancellation of removal under § 1229b(b)(1)(C). However, neither

the IJ nor the BIA addressed the issue of whether Okeke is ineligible

under § 1229b(b)(1)(C), and neither the Government nor Okeke has

raised the issue to us. As the Government itself acknowledges in its

brief, the issue before us is not whether Okeke was convicted of a

controlled substance offense (and is thus ineligible for cancellation of

removal under § 1229b(b)(1)(C)), but rather whether Okeke

committed an offense that permanently ended his period of

continuous physical presence (and is thus ineligible under

§ 1229b(b)(1)(A)). See Government Brief at 16-19 (“Okeke is

ineligible for cancellation of removal not because he was convicted

but because he committed a controlled substance offense.” (emphasis

in original)). We thus may not raise the issue sua sponte and decide

it de novo. Rather, we must remand so that the BIA may have the

first opportunity to address the issue. See INS v. Ventura, 537 U.S.

12, 15-16 (2002) (holding that the Ninth Circuit erred in addressing

an issue not yet addressed by the BIA and stating that “[a] court of

appeals ‘is not generally empowered to conduct a de novo inquiry into

the matter being reviewed and to reach its own conclusions based on

such an inquiry.’ Rather, ‘the proper course, except in rare

circumstances, is to remand to the agency for additional investigation

or explanation.’” (quoting Fla. Power & Light Co. v. Lorion, 470

U.S. 729, 744 (1985))).

15

Another argument for interpreting § 1229b(d)(1) to

allow the continuous physical presence clock to restart is that,

Moreover, the forerunner statutory section to § 1229b, §

244 of the Immigration and Nationality Act (“INA”) (codified

at 8 U.S.C. § 1254 (repealed 1996)),16 was interpreted as

when the clock is not allowed to restart, an odd rule (probably

not intended by Congress) is created for permanent resident

aliens applying for cancellation of removal under § 1229b(a).

This provision does not have an “immediately preceding the

date of such application” requirement. Rather, § 1229b(a)

requires only that an alien “has resided in the United States

continuously for 7 years.” 8 U.S.C. § 1229b(a)(2).

The following example will illustrate the strange rule

that results under § 1229b(a) when the continuous presence

clock (or continuous residence clock in the case of § 1229b(a))

is not allowed to restart. Permanent resident alien “X” has

resided in the United States since year 0, but in year 1

committed a offense specified in § 1229b(d)(1). If X applies for

cancellation of removal under § 1229b(a) in year 20, X will not

qualify because X did not reside in the United States

continuously for 7 years, as X’s period of continuous residency

ended in year 1 and did not restart. On the other hand,

permanent resident alien “Y” has only resided in the United

States since year 11, and in year 19 committed an offense

specified in § 1229b(d)(1). If Y applies for cancellation of

removal under § 1229b(a) in year 20, Y will qualify because Y

resided in the United States continuously for over 7 years (from

year 11 to 19). Why would Congress prefer to cancel the

removal of Y who has resided continuously in the United States

for approximately half as long as X? More importantly, why

would Congress choose to cancel the removal of Y (who has

committed an offense recently, is less likely reformed, and is

more likely to recidivate), but not cancel the removal of X (who

has committed an offense less recently, is more likely reformed,

and is less likely to recidivate)?

16

The Conference Report states that “[n]ew section 240A

[codified at 8 U.S.C. §1229b] establishes revised rules for the type of

allowing the continuous physical presence clock to restart,

Mendoza, 22 I. & N. Dec. at 1246 (Guendelsberger, dissenting),

and Congress never stated that § 1229b should be interpreted

differently. Cf. Lindahl v. Office of Pers. Mgmt., 470 U.S. 768,

782 n.15 (1985) (Where “‘Congress adopts a new law

incorporating sections of prior law, Congress normally can be

presumed to have had knowledge of the interpretation given to

the incorporated law, at least insofar as it affects the new

statute.’”) (quoting Lorillard v. Pons, 434 U.S. 575, 580-

81(1978)); Pierce v. Underwood, 487 U.S. 552, 567 (1988) (re-

enactment of a statute “generally includes the settled judicial

interpretation” thereof). Therefore, we presume that Congress

also intended § 1229b(d)(1) to allow the clock to restart.

Under the old statutory regime—INA § 244, 8 U.S.C.

§ 1254—the duration of continuous physical presence an alien

had to demonstrate in order to be eligible for suspension of

deportation and adjustment of status depended on why the alien

was deportable. An alien deportable on most noncriminal

grounds had to demonstrate seven years of continuous physical

presence immediately preceding the alien’s application for

suspension of deportation. INA § 244(a)(1), 8 U.S.C.

§ 1254(a)(1). However, an alien deportable on most criminal

grounds had to demonstrate ten years of continuous physical

presence immediately following the commission of the act, or

assumption of the status, constituting a ground for deportation.

INA § 244(a)(2), 8 U.S.C. § 1254(a)(2). As BIA Member

Guendelsberger explained in his dissent in Mendoza, “the

resetting of the physical presence clock upon the occurrence of

particular events has been and remains inherent in the eligibility

provisions for suspension of deportation.” 22 I. & N. Dec. at

relief that is currently available to excludable and deportable aliens

under 212(c) and 244(a)-(d).” Joint Explanatory Statement,

Conference Report: Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, H.R. Rep. No. 104-828, 142 Cong.

Rec. H10841-02, H10896, 1996 WL 539315 (1996).

1246 (Guendelsberger, dissenting) (citing In re Bufalino, 11 I.

& N. Dec. 351, 357-58 (BIA 1965) (finding that a respondent

who is deportable under several grounds, one of which is listed

in § 244(a)(2), is ineligible for relief under § 244(a)(1) and must

establish eligibility under § 244(a)(2) from the date of the

commission of the last deportable act)). That the forerunner to

§ 1229b was interpreted to allow the continuous physical

presence clock to restart supports interpreting § 1229b that way.

A final reason Mendoza’s interpretation of § 1229b(d)(1)

is impermissible is that, because of the serious consequences of

deportation, rules of statutory interpretation relating to

immigration statutes require that ambiguities be construed in the

favor of the alien. See INS v. Errico, 385 U.S. 214, 225 (1966);

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (“To construe

this statutory provision less generously to the alien might find

support in logic. But since the stakes are considerable for the

individual, we will not assume that Congress meant to trench on

his freedom beyond that which is required by the narrowest of

several possible meanings of the words used.”); Sawkow v. INS,

314 F.2d 34, 37 (3d Cir. 1963) (“Of course, any doubt in the

interpretation of the statute must be resolved in favor of the

alien . . . .”).

Conclusion

We review the BIA’s interpretation of § 1229b(d)(1)

according to the standards set forth in Chevron. As the statute

is silent or ambiguous on the issue of whether the continuous

physical presence clock may restart, we ask whether the BIA’s

interpretation is based on a permissible construction of the

statute. In Chevron, the Supreme Court stated that if we

determine, using the traditional tools of statutory construction,

that Congress had an intention on an issue of statutory

interpretation, we must give effect to that intention. Using the

traditional tools of statutory construction, I determine that

Congress intended in § 1229b(d)(1) to allow the continuous

physical presence clock to restart after the commission of a

specified offense. Thus, Mendoza’s interpretation of

§ 1229b(d)(1) to mean that the clock cannot be reset so that an

alien accrues continuous physical presence after the commission

of a specified offense is impermissible.

Assuming Okeke committed a controlled substance

offense in 1983, he began a new period of continuous physical

presence on May 5, 1984—the date of his most recent

admission into the United States. Thus, because Okeke was

continuously physically present in the United States from May

5, 1984 until he applied for cancellation of removal more than

ten years later, he has accrued the required ten-year period

necessary to qualify for cancellation of removal under

§ 1229b(b)(1). I therefore concur with the result reached by

Judge Garth.

NYGAARD, Circuit Judge, dissenting.

I respectfully dissent. Although I agree with most of

what the majority writes, I reach a different conclusion. I

believe that Okeke has failed to establish that he qualifies for

cancellation of removal because his period of continuous

physical presence ended when he was convicted of a controlled

substance violation. Therefore, I would affirm.

As the majority correctly describes, to carry his burden

for cancellation of removal, Okeke must establish, inter alia,

both continuous physical presence in the United States for ten

years immediately preceding his application for relief and that

he has not been convicted of an offense under 8 U.S.C. §

1182(a)(2). See 8 U.S.C. §§ 1229b(b)(1)(A), (C). If an alien

commits a controlled substance violation under section

1182(a)(2), his period of continuous physical presence is

“deemed to end.” 8 U.S.C. § 1229b(d)(1). The BIA has held

that a new period of continuous physical presence may not

restart under section 1229b(d)(1). In re Mendoza-Sandino, 22

I. & N. Dec. 1236 (BIA 2000).

Following Mendoza-Sandino, Okeke does not qualify for

cancellation of removal under section 1229b(b)(1). He first

entered the United States in 1981. His period of continuous

physical presence ended in 1983, pursuant to section

1229b(d)(1), when he committed a drug offense in New York.

Under the BIA’s holding in Mendoza-Sandino, Okeke may not

restart his period of continuous physical presence because the

physical presence period ended pursuant to section 1229b(d)(1).

But there is more.

In addition to the “commission” trigger, there also exists

a “conviction” trigger, which also terminates a period of

continuous presence. Judge Ambro quite correctly states that

the event barring an alien from receiving cancellation of

removal under section 1229b(b)(1) is the conviction, not the

commission, of a specified offense. I would hold that Okeke is

not eligible for cancellation of removal because he was

“convicted” of possession of marijuana pursuant to New York

Penal Law section 221.20, which is a controlled substance

offense under section 1182(a)(2).

A conviction is established if: “(i) a judge or jury has

found the alien guilty or the alien has entered a plea of guilty

and (ii) the judge has ordered some form of punishment, penalty,

or restraint on the alien’s liberty to be imposed.” 8 U.S.C.

§1101(a)(48)(A). “The State Department has interpreted this to

mean that a conviction will be found if: (1) there has been a plea

or judicial finding of guilt, and (2) the court has imposed a term

of probation or some other form of restraint on the defendant.”

Id; see, e.g., Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002).

Okeke does not deny that in January 1983 he pleaded guilty to,

and the court imposed a term of probation for, possession of

marijuana. Thus a “conviction” has been established regarding

Okeke’s possession of marijuana.

Okeke, however, argues that it is not permissible to use

an individual’s testimony to prove a contested conviction. For

that proposition, he cites Matter of Pichardo, 21 I. & N. Dec.

330 (BIA 1996), in which the BIA held that the Immigration

Judge’s reliance on such extrinsic evidence of respondent’s

testimony was improper. Id. at 334–35. Pichardo is

distinguishable. In Pichardo, the respondent did not admit the

conviction. In contrast, Okeke has testified that he “pleaded

guilty to” and was “sentenced to probation” for possession of

marijuana, which meets the exact definition of a “conviction.”

8 U.S.C. §1101(a)(48)(A). “As the plain language [of the INA]

indicates, “conviction” includes a guilty plea. Ambiola v.

Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004); see North Carolina

v. Alford, 400 U.S. 25, 37 (1970).

Okeke’s sworn testimony affirmatively established that

he had been convicted of possession of marijuana—a predicate

he cannot now deny. The Court of Appeals for the Eleventh

Circuit has held that an alien’s admission of a drug conviction

under oath establishes the alien’s conviction for deportation

purposes. See Fequiere v. Ashcroft, 279 F.3d 1325 (11th Cir.

2002). I would too. The Court there reasoned that the

government need not establish a drug conviction by one of the

seven forms of proof articulated in 8 U.S.C. § 1229a(c)(3)(B)

because the statute does not state that the forms of proof it lists

constitute the sole means of establishing a criminal conviction.

Id. at 1327. The Court clarified by stating that “the statute

merely says that such forms ‘shall constitute proof of a criminal

conviction,’” and “[o]ther forms of proof will suffice if

‘probative.’” Id. Okeke pleaded guilty to possession of

marijuana and was sentenced for that offense. It follows that

Okeke’s own testimony of his conviction and sentence is

probative proof of a “conviction” and therefore was properly

taken into consideration by the BIA.

The BIA correctly found that Okeke committed and was

convicted of an offense referred to in 8 U.S.C. § 1182(a)(2). I

would hold that the BIA properly denied Okeke’s application for

cancellation of removal. He has not carried his burden to show

the requisite “continuous physical presence” in the United States

necessary to qualify for cancellation of removal. For these

reasons, I would affirm the BIA’s denial of Okeke’s Petition for

Review.