ORDAZ

Cite as 26 I&N Dec. 637 (BIA 2015) Interim Decision #3845

Matter of Marcos Victor ORDAZ-Gonzalez, Respondent

Decided July 24, 2015

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A notice to appear that was served on an alien but never resulted in the commencement

of removal proceedings does not have “stop-time” effect for purposes of establishing

eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration

and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2012).

FOR RESPONDENT: Andrew Knapp, Esquire, Los Angeles, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter R. Lee, Assistant

Chief Counsel

AMICUS CURIAE: Russell Abrutyn, Esquire, Troy, Michigan1

BEFORE: Board Panel: GUENDELSBERGER and MALPHRUS, Board Members;

GELLER, Temporary Board Member.

MALPHRUS, Board Member:

This case is before us on remand from the United States Court of

Appeals for the Ninth Circuit for our reconsideration of the respondent’s

eligibility for cancellation of removal under section 240A(b)(1) of the

Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1) (2006). Upon

further consideration, we will sustain the respondent’s appeal in part and

remand the record to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who claims to have

first entered the United States in 1990. Following an encounter with

immigration officers, the respondent was served with a notice to appear on

April 2, 1998, which advised him to appear before an Immigration Judge at

a date, time, and location to be determined in the future. Removal

proceedings were never commenced on the basis of that document because

1

We acknowledge and appreciate the helpful briefs submitted by the parties and by

amicus curiae representing the American Immigration Lawyers Association.

637

Cite as 26 I&N Dec. 637 (BIA 2015) Interim Decision #3845

it was not filed with the Immigration Court in accordance with 8 C.F.R.

§ 3.14(a) (1998). On September 1, 2004, the Department of Homeland

Security (“DHS”) served the respondent with a second notice to appear and

commenced the present proceedings on that basis.

The respondent applied for cancellation of removal under section

240A(b)(1) of the Act, claiming that his date of entry was in 1990 for

purposes of establishing his continuous physical presence in the United

States. In a decision dated December 12, 2006, the Immigration Judge

ruled that pursuant to the “stop-time” rule in section 240A(d)(1), the

respondent’s period of continuous physical presence terminated when he

was served with the 1998 notice to appear. The Immigration Judge

therefore denied the application, holding that the respondent had not

accrued the 10 years of continuous physical presence required by section

240A(b)(1)(A).

II. ANALYSIS

To be eligible for cancellation of removal under section 240A(b)(1) of

the Act, an alien must establish, among other things, that he 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.” Section

240A(b)(1)(A) of the Act. According to the “stop-time” rule, which is

applicable to cancellation of removal under sections 240A(a) and (b)(1),

“any period of continuous residence or continuous physical presence in the

United States shall be deemed to end . . . when the alien is served a notice

to appear under section 239(a) [of the Act, 8 U.S.C. § 1229(a) (2012)].”

Section 240A(d)(1) of the Act; see also Illegal Immigration Reform and

Responsibility Act of 1996, Division C of Pub. L. No. 104-208,

§ 304(a)(3), 110 Stat. 3009-546, 3009-595.2 The issue before us is whether

the “stop-time” rule is triggered when an alien is served with a notice to

appear but is never placed in proceedings on the basis of that document.

To determine the scope of section 240A(d)(1) of the Act, we look first

to the particular statutory language at issue. See K Mart Corp. v. Cartier,

Inc., 486 U.S. 281, 291 (1988). We must ascertain whether the statutory

language has a plain and unambiguous meaning with respect to the issue at

hand, which is “determined by reference to the language itself, the specific

context in which the language is used, and the broader context of the statute

2

Service of a notice to appear is not the only way to trigger section 240A(d)(1) of the

Act. The “stop-time” rule applies to the earlier of the date the notice to appear was

served or, if applicable, the date on which the alien committed an offense that renders

him or her inadmissible or removable under certain sections of the Act.

638

Cite as 26 I&N Dec. 637 (BIA 2015) Interim Decision #3845

as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 340−41 (1997).

However, where the specific question is not answered by the plain language

of the statute, either because the language is silent or is susceptible to

varying interpretations, “it is our duty to resolve any ambiguities and fill

any statutory gaps in a reasonable manner.” Matter of Velazquez-Herrera,

24 I&N Dec. 503, 508 (BIA 2008); see also Negusie v. Holder, 555 U.S.

511, 523 (2009).

The DHS contends that an alien’s period of continuous physical

presence under section 240A(b)(1) of the Act (or continuous residence

under section 240A(a)) is terminated upon the service of any notice to

appear, including the 1998 notice to appear in this case. According to the

DHS, this argument is supported by the fact that the statute refers to “a”

notice to appear (as opposed to “the” notice to appear) to describe the

document that triggers the “stop-time” rule. See Abdisalan v. Holder, 774

F.3d 517, 524 (9th Cir. 2014) (noting that the “definite article ‘the’

particularizes the subject which it precedes and is [a] word of limitation as

opposed to [the] indefinite or generalizing force ‘a’ or ‘an’” (quoting In re

Cardelucci, 285 F.3d 1231, 1234 (9th Cir. 2002))).

While we recognize that the most natural reading of the indefinite article

“a” in section 240A(d)(1) of the Act would be to refer to any notice to

appear, its use is not dispositive of the issue before us. The use of the word

“a” may be subject to more than one plausible interpretation depending on

the language and context of a statute. See F. Hoffmann-La Roche Ltd.

v. Empagran S.A., 542 U.S. 155, 173−75 (2004) (interpreting the phrase “a

claim” to refer to the plaintiff’s claim, as opposed to a claim by any person,

in light of the context, history, and basic intent of the statute, as well as the

consequences of a contrary interpretation); Sprietsma v. Mercury Marine,

537 U.S. 51, 63 (2002) (concluding that the phrase “a law or regulation”

does not encompass every type of law, including common law, where the

remaining statutory language and structure warrant a different reading).

Further, the complete passage at section 240A(d)(1) refers to a “notice to

appear under section 239(a),” which can be read as referring to the “written

notice” that is provided “[i]n removal proceedings under section 240 [of the

Act, 8 U.S.C. § 1229a (2012)].” Section 239(a)(1) of the Act. This could

be interpreted to mean that a written notice is not “a notice to appear under

section 239(a)” absent the actual commencement of proceedings. Under

these circumstances, the statute is ambiguous with respect to whether a

notice to appear that was served but not prosecuted “in removal

proceedings” has “stop-time” effect in subsequent proceedings based on a

different notice to appear. For the reasons discussed below, we conclude

that it does not.

639

Cite as 26 I&N Dec. 637 (BIA 2015) Interim Decision #3845

The DHS’s argument that “a” means “any” is not the best reading of

section 240A(d)(1), considering the typical posture of removal proceedings

and the overall context of the statute. While not exclusively the case,

proceedings ordinarily begin with a single notice to appear and end with an

order of removal or a grant of some form of relief from removal. If the

DHS wishes to amend the notice to appear, it may do so through the service

of a Form I-261 (Additional Charges of Removability) “[a]t any time

during the proceeding.” 8 C.F.R. § 1240.10(e) (2015). There is generally

no need for the DHS to initiate new proceedings on the basis of an

additional, superseding notice to appear. We are not convinced that

Congress anticipated the atypical situation involved here and intended to

address it through the use of the indefinite article “a” before the phrase

“notice to appear.”

Our conclusion is especially apt when we consider the potential

consequences of interpreting the statute in the manner advocated by the

DHS. Affording “stop-time” effect to “any” notice to appear, regardless of

whether proceedings were ever commenced on that basis, would potentially

render an alien ineligible for relief on the basis of a charging document that

was invalid or otherwise insufficient to support a removal charge as issued.3

And if proceedings were never commenced, the alien would not have the

opportunity to contest, or require the DHS to prove, the allegations and

charges contained in the notice to appear. In fact, if we were to adopt the

DHS’s approach, even in situations where an alien was provided such an

opportunity, a notice to appear that he or she has successfully defended

against would nevertheless have “stop-time” effect in later proceedings.4

We are not persuaded that Congress intended such far-reaching

consequences.

3

On the other hand, if the DHS amends a notice to appear by filing a Form I-261 during

the course of removal proceedings, the notice to appear would continue to have

“stop-time” effect. The statute affords “stop-time” effect to a single instrument—the

notice to appear that is the subject of proceedings in which cancellation of removal is

sought—irrespective of whether the allegations and charge(s) contained in that document

are later substituted or supplemented during proceedings. See Matter of Camarillo,

25 I&N Dec. 644, 650−51 n.7 (BIA 2011).

4

Of course, an alien’s eligibility for cancellation of removal may still be affected by

prior removal or deportation proceedings. Notably, an applicant for cancellation of

removal under section 240A(a) or (b)(1) of the Act is ineligible for such relief if he or she

is an alien “whose removal has previously been cancelled under [section 240A] or whose

deportation was suspended under [former] section 244(a) [of the Act, 8 U.S.C. § 1254(a)

(1994),] or who has been granted relief under [former] section 212(c) [of the Act,

8 U.S.C. § 1182(c) (1994),] as such sections were in effect before the date of the

enactment of the Illegal Immigration Reform and Immigration Responsibility Act of

1996.” Section 240A(c)(6) of the Act.

640

Cite as 26 I&N Dec. 637 (BIA 2015) Interim Decision #3845

This approach is consistent with our decision in Matter of Cisneros,

23 I&N Dec. 668, 672 (BIA 2004), where we held that “the ‘notice to

appear’ referred to in section 240A(d)(1) pertains only to the charging

document served in the proceedings in which the alien applies for

cancellation of removal.” In so holding, we rejected the argument that

service of a notice to appear in a prior proceeding that was prosecuted to

completion should have “stop-time” effect in all future proceedings. We

found the statutory language there, as here, to be ambiguous, and our

analysis was guided by the fact that Congress’ express intent for enacting

the “stop-time” rule was to address a different issue. Specifically, this rule

was designed to prevent “the prior practice of allowing periods of

continuous physical presence to accrue” during the pendency of removal

proceedings, which allowed aliens to employ dilatory tactics in proceedings

in order to “buy time” to establish eligibility for cancellation of removal.

Id. at 670. We found that this purpose would not be furthered by applying

the “stop-time” rule to an alien who was served a notice to appear in an

earlier, unrelated proceeding. Such an individual is not in a position to

“buy time” until after the DHS initiates removal proceedings on the basis of

a subsequent charging document. See id.

This rationale applies with equal force to an alien who is served a notice

to appear but is never placed in removal proceedings on that basis. In fact,

the decision to commence removal proceedings lies in the sole discretion of

the DHS. See 8 C.F.R. § 1003.14(a); see also, e.g., Cortez-Felipe v. INS,

245 F.3d 1054, 1057 (9th Cir. 2001); Matter of Lujan-Quintana, 25 I&N

Dec. 53, 56 (BIA 2009). We therefore find strong support in Matter of

Cisneros for the interpretation we adopt here.

We addressed a related, but different, “stop-time” issue in Matter of

Camarillo, 25 I&N Dec. 644 (BIA 2011). In that case, we considered

whether section 240A(d)(1) of the Act is triggered as of the date of service

of the notice to appear, even if the time and place of the hearing is not

specified, or at some later date, such as when a subsequent notice of hearing

is sent by the Immigration Court. Id. at 647−51. Our discussion of the

“stop-time” rule was therefore in the context of “when the notice to appear

is effective to terminate the accrual of continuous residence [or physical

presence].” Id. at 650 (emphasis added). Here, by contrast, we are

addressing a different ambiguity in the statute, namely, whether a

particular notice to appear has “stop-time” effect. While both of these

issues arise in the context of the same statute, they present different

questions of statutory interpretation, which must be evaluated based on the

language, structure, and context of the provision in regard to the specific

issue before us.

641

Cite as 26 I&N Dec. 637 (BIA 2015) Interim Decision #3845

With respect to the issue of timing (or when the “stop-time” rule takes

effect), Matter of Camarillo considered the interrelationship between the

service of a notice to appear and the required advisals under section

239(a)(1)(G)(i) of the Act. We noted that while section 239(a)(1)(G)(i)

requires an alien to be advised of the time and location the proceedings will

take place, such information is often provided after service of a notice to

appear, as contemplated by both the Act and the regulations. Matter of

Camarillo, 25 I&N Dec. at 647−48; see also Popa v. Holder, 571 F.3d 890,

896 (9th Cir. 2009) (explaining that the DHS “frequently serves [notices to

appear] where there is no immediate access to docketing information”

(quoting Dababneh v. Gonzales, 471 F.3d 806, 809 (7th Cir. 2006))). We

therefore concluded that section 240A(d)(1)’s reference to a notice to

appear “under section 239(a)” is merely definitional in nature. It does not

alter the time when an alien’s period of continuous residence or physical

presence is deemed to end, which the structure and legislative history of the

statute support as being the date the notice to appear is served.5

This is consistent with the approach we adopt here. Section

240A(d)(1)’s reference to section 239(a) of the Act is definitional in that it

specifies what “a notice to appear” refers to in section 240A(d)(1). Matter

of Camarillo, 25 I&N Dec. at 647, 650. It refers to the written notice that is

provided to an alien “[i]n removal proceedings under section 240.” Section

239(a)(1) of the Act. Such reference answers the question presented here:

whether the “stop-time” rule applies to a notice to appear that is properly

served but not used to commence proceedings. It does not, however, alter

the time when an alien’s period of continuous residence or continuous

physical presence is deemed to end. Therefore, we continue to interpret

section 240A(d)(1) as terminating an alien’s period of continuous residence

or physical presence as of the date a notice to appear is served, even if the

document does not contain the time and place of the hearing, provided that

proceedings are actually initiated on that basis.6

5

We stated that “the commencement of proceedings is a separate issue from the service

of the notice to appear. The application of the ‘stop-time’ rule is, by statute, based on

service of the notice to appear, not the commencement of proceedings . . . .” Matter of

Camarillo, 25 I&N Dec. at 650. However, this statement was made in in the context of

the typical situation where the DHS issues and proceeds on a single notice to appear. We

were not considering the situation where, as here, the original notice to appear was issued

but never prosecuted in removal proceedings.

6

The courts of appeals that have addressed Matter of Camarillo have deferred to it as a

reasonable interpretation of the ambiguous statutory language in section 240A(d)(1) of

the Act. Guaman-Yuqui v. Lynch, 786 F.3d 235, 241 (2d Cir. 2015); Gonzales-Garcia

v. Holder, 770 F.3d 431, 433−35 (6th Cir. 2014); Yi Di Wang v. Holder, 759 F.3d 670,

674−75 (7th Cir. 2014); Urbina v. Holder, 745 F.3d 736, 740 (4th Cir. 2014); see also

(continued . . .)

642

Cite as 26 I&N Dec. 637 (BIA 2015) Interim Decision #3845

Matter of Cisneros, Matter of Camarillo, and this decision together

interpret section 240A(d)(1) as ending, or “stopping,” an alien’s period of

continuous residence or continuous physical presence on the date a notice

to appear is served, provided that such document is the basis for the

proceedings in which cancellation of removal is being sought. This reading

gives meaning to the statute as a whole and is consistent with the Act in its

entirety, the nature of removal proceedings in general, and Congress’ goal

in enacting section 240A(d)(1) of the Act. See FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (explaining that in

determining the meaning of a statute, a court must “interpret the statute ‘as

a symmetrical and coherent regulatory scheme’ and ‘fit, if possible, all parts

into an harmonious whole” (citations omitted)).

III. CONCLUSION

The language and structure of section 240A(d)(1) of the Act do not

support giving “stop-time” effect to a notice to appear that was served on

an alien but was never used to commence proceedings. Consequently, the

1998 notice to appear, although properly served, did not terminate the

respondent’s continuous physical presence for purposes of his application

for cancellation of removal under section 240A(b)(1) of the Act.

Accordingly, his appeal will be sustained in part. The record will be

remanded to give the parties an opportunity to present additional arguments

and evidence, including testimony, as the Immigration Judge deems

appropriate.7

ORDER: The respondent’s appeal will be sustained in part.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

____________________________

O’Garro v. U.S. Att’y Gen., 605 F. App’x 951 (11th Cir. 2015) (deferring, in an

unpublished decision, to our interpretation in Matter of Camarillo); Soto v. Holder, 736

F.3d 1009, 1011−12 (1st Cir. 2013) (adopting a similar approach without discussing

Matter of Camarillo).

7

On remand, the Immigration Judge should determine whether the respondent

established that he first entered the United States in 1990 and make specific factual

findings regarding the respondent’s date of entry.

643