PEREZ

Interim Decision #3389

In re Cristobal PEREZ, Respondent

File A91 875 147 - Huntsville

Decided May 12, 1999

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. §

1229b(d)(1) (Supp. II 1996), continuous residence or physical presence for cancellation of

removal purposes is deemed to end on the date that a qualifying offense has been committed.

(2) The period of continuous residence required for relief under section 240A(a) com-

mences when the alien has been admitted in any status, which includes admission as a tem-

porary resident.

(3) An offense described in section 240A(d)(1) is deemed to end continuous residence or

physical presence for cancellation of removal purposes as of the date of its commission,

even if the offense was committed prior to the enactment of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546.

Isaias D. Torres, Esquire, Houston, Texas, for respondent

John W. McPhail, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,

HURWITZ, FILPPU, COLE, MATHON, JONES, GRANT, and SCIALABBA,

Board Members. Dissenting Opinion: GUENDELSBERGER, Board Member,

joined by SCHMIDT, Chairman; VILLAGELIU and ROSENBERG, Board

Members.

FILPPU, Board Member:

We have jurisdiction over this timely appeal pursuant to 8 C.F.R. §

3.1(b) (1999). The respondent has appealed the Immigration Judge’s

October 29, 1997, oral decision finding that he is removable on the basis of

his conviction for a controlled substance violation pursuant to section

237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §

1227(a)(2)(B)(i) (Supp. II 1996), and pretermitting his application for can-

cellation of removal pursuant to section 240A(a) of the Act, 8 U.S.C. §

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1229b(a) (Supp. II 1996). Removability is not an issue on appeal. The

respondent contends that the Immigration Judge erred in finding him statu-

torily ineligible to apply for cancellation of removal on the ground that the

required period of continuous residence was terminated when he commit-

ted the controlled substance offense. Our review is de novo with regard to

the issue on appeal. Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The

appeal will be dismissed.

I. ISSUE PRESENTED

The issue in this case is whether the “stop-time” rule of section

240A(d)(1) of the Act operates to terminate the period of continuous resi-

dence required for cancellation of removal under section 240A(a) as of the

date that the respondent committed his offense.

II. FACTUAL BACKGROUND

In removal proceedings commenced on September 26, 1997, the

respondent admitted, through his counsel, each of the factual allegations in

the Notice to Appear (Form I-862). Specifically, the respondent stated that

he is a native and citizen of El Salvador, that he was first admitted as a tem-

porary resident on September 21, 1989, and that his status was subsequent-

ly adjusted to that of a lawful permanent resident on December 7, 1990. The

respondent further admitted that he was convicted on July 11, 1997, in the

184th District Court of Harris County, Texas, of possession of cocaine, and

that this offense was committed on or about August 4, 1992.1 The respon-

dent conceded that he was removable as charged under section

237(a)(2)(B)(i) of the Act on the basis of this conviction.

III. THE RESPONDENT’S RETROACTIVITY ARGUMENT

The respondent’s position on appeal is that the presumption against the

retroactive effect of statutes stated by the Supreme Court in Landgraf v. USI

Film Products, 511 U.S. 244 (1994), is applicable in this case. The respon-

1

We note that the dates provided by the Immigration and Naturalization Service in its

brief on appeal for each of these events are inexplicably inconsistent with those alleged by the

Service on the continuation page (Form I-831) to the Notice to Appear (Form I-862). For the

purposes of this decision, we have used the dates alleged on the Form I-831, which were

admitted to by the respondent at his October 29, 1997, hearing.

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dent contends that, because he committed his drug offense prior to the pas-

sage of section 240A of the Act, that section’s rules limiting eligibility for

relief from removal should not be applied to him. See Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L.

No. 104-208, § 304(a)(3), 110 Stat. 3009-546, 3009-595 (“IIRIRA”) (cod-

ified at 8 U.S.C. § 1229b).

We first note that the relief of cancellation of removal is both discre-

tionary and prospective in nature. Section 240A of the Act therefore does

not impair a substantive right to relief that was in place prior to its enact-

ment. When assessing statutory eligibility or discretionary merit for a grant

of cancellation of removal, we must necessarily look at a variety of

antecedent events, including events that are both favorable and unfavorable

to the alien. An alien’s past criminal conduct may well impact on the oper-

ation of the statute. But it does so only to the extent of defining the Attorney

General’s present authority to grant discretionary relief to removable aliens,

or of informing as to the exercise of discretion. We therefore do not find that

applying section 240A would have an impermissible “retroactive effect” as

contemplated in Landgraf.

In any event, where Congress has expressly prescribed the reach of the

new legislation, there is no need to resort to the judicial default rules set

forth in Landgraf. We find that Congress has provided specific direction on

the scope of applicability of the section 240A rules governing the relief of

cancellation of removal. The effective date provisions of the legislation

implementing the new procedures provide, with certain exceptions not

applicable here, that section 240A applies to aliens unless they are current-

ly in deportation or exclusion proceedings. See IIRIRA §§ 304(c)(2), 110

Stat. at 3009-597; 309(c)(1), 110 Stat. at 3009-625. The respondent is not

in deportation or exclusion proceedings. He is in removal proceedings com-

menced after the April 1, 1997, effective date that the IIRIRA established

for such proceedings. Consequently, the section 240A rules apply.

IV. THE STATUTORY REQUIREMENTS FOR RELIEF

UNDER SECTION 240A(a)

Since the respondent’s eligibility for relief is controlled by the rules

stated in section 240A of the Act, we must address whether the Immigration

Judge properly applied these rules when he pretermitted the respondent’s

application for section 240A(a) cancellation of removal.

Section 240A(a) provides that a lawful permanent resident may seek

cancellation of removal if the statutory prerequisites for that relief have

been satisfied. The prerequisites for section 240A(a) relief are that the alien

(1) has been an alien lawfully admitted for permanent residence for not less than 5

years,

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(2) has resided in the United States continuously for 7 years after having been admit-

ted in any status, and

(3) has not been convicted of any aggravated felony.

The respondent was admitted for permanent residence on December 7,

1990, and therefore meets the first requirement of the statute.2 We will not

address the question whether the respondent meets the third requirement for

relief because there is no documentary evidence relating to the respondent’s

conviction in the record. Therefore, we confine our inquiry to the remain-

ing issue of whether the Immigration Judge correctly determined that the

respondent had not satisfied the second requirement of 7 years of continu-

ous residence after having been admitted in any status. The respondent com-

mitted his criminal offense before he accrued 7 years of residence.

However, he was convicted of that offense nearly 8 years after his admis-

sion as a temporary resident.

V. UNDER THE NATURAL AND STRAIGHTFORWARD READING

OF SECTION 240A(d)(1), TIME CEASES TO ACCRUE

ON THE DATE AN OFFENSE IS COMMITTED

The commencement of the period of continuous residence is defined in

section 240A(a)(2) of the Act as the date when the respondent has been

“admitted in any status.” For the purpose of triggering the accrual of the 7

years of continuous residence required under section 240A(a)(2), we inter-

pret admission in “any status” to include admission as a temporary resident.

The respondent was first admitted in “any status,” and continuous residence

thus began to accrue, when he was admitted as a temporary resident on

September 21, 1989.

The termination of continuous residence is defined by the special rule

at section 240A(d)(1), which provides as follows:

For purposes of this section, any period of continuous residence or continuous physi-

cal presence in the United States shall be deemed to end when the alien is served a

notice to appear under section 239(a) or when the alien has committed an offense

referred to in section 212(a)(2) that renders the alien inadmissible to the United States

under section 212(a)(2) or removable from the United States under section 237(a)(2)

or 237(a)(4), whichever is earliest. (Emphasis added.)

2

In its brief on appeal, the Service misreads the statute as requiring continuous residence

in the United States for a period of 5 years as a lawful permanent resident prior to the com-

mission of a criminal offense. Section 240A(a)(1), requiring admission for permanent resi-

dence for not less than 5 years, does not state a requirement for continuous residence or phys-

ical presence and therefore does not trigger the application of section 240A(d)(1). The con-

tinuous residence requirement of section 240A(a)(2) is the provision at issue here.

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Applying section 240A(d)(1) of the Act, the Immigration Judge deter-

mined that the respondent’s period of continuous residence ended on

August 4, 1992, the date he committed his offense, and that he consequent-

ly had less than the required 7 years of continuous residence. We find that

the Immigration Judge was correct in applying the commission date as the

date that continuous residence terminated.

The natural and straightforward reading of section 240(A)(d)(1) indi-

cates that continuous residence or physical presence is deemed to end at the

point when the alien “has committed” one of the designated offenses, i.e.,

one that is “referred to in section 212(a)(2) that renders the alien inadmis-

sible to the United States under section 212(a)(2) or removable from the

United States under section 237(a)(2) or 237(a)(4).” Section 240A(d)(1) of

the Act.

The date that criminal misconduct is committed is the critical point in

time when calculating the statutorily required period of time under section

240A(d)(1). The subsequent “renders” clause does not impose a separate

temporal requirement. Rather, it is a restrictive clause which modifies the

word “offense” by limiting and defining the types of offenses which cut off

the accrual of further time as of the date of their commission. Thus, it

implicitly requires that the steps necessary to “render” an alien inadmissi-

ble or removable shall have occurred before the offense qualifies for section

240A(d)(1) purposes. However, the statute does not identify the date that

the final step for inadmissibility or removability occurs as the date that the

further accrual of time terminates. To the contrary, it clearly defines the ter-

minating point to be the time when “the alien has committed [the] offense.”

In the instant case, the respondent was ultimately “rendered”

deportable under section 237(a)(2)(B)(i) by his conviction for an offense

that is referred to in section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. §

1182(a)(2)(A)(i)(II) (1994 & Supp. II 1996). Hence, his conviction placed

his offense within those specified in section 240A(d)(1) for purposes of ter-

minating continuous residence. However, once it was determined that the

offense was one of those qualifying offenses, the statute set the date when

the offense was “committed” as the point in time when his continuous res-

idence ended.

It would strain our reading of section 240A(d)(1) to interpret the statute

as permitting any date to be used for calculating the period of continuous

residence or presence other than the date the offense was committed. In

determining Congress’ intent, we should not read a statute in a tortuous

manner in search of ambiguity when the natural and straightforward read-

ing leads to no anomalous or absurd result.

In any event, to the extent that a strained reading of section 240A(d)(1)

suggests ambiguity when it is read in isolation, we find that it is readily

resolved when interpreted in the context of section 240A as a whole, and by

a common sense reading of the statute. Any possible ambiguity disappears

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by simply recognizing that the word “renders” is implicitly modified by a

single word, such as “subsequently,” or “ultimately,” in those situations

where the commission of the crime does not itself render an alien immedi-

ately removable. Thus, in a case such as the one now before us, time stops

accruing “when the alien has committed an offense that [subsequently] ren-

ders the alien inadmissible . . . or removable.”

VI. SECTION 240A(d)(1) MUST BE INTERPRETED IN THE

CONTEXT OF SECTION 240A AS A WHOLE

Assigning the phrase “has committed” its ordinary and natural mean-

ing gains support when those words are viewed in the context of the struc-

ture of section 240A as a whole. The Supreme Court has noted that if an

ambiguity is perceived when a provision is read in isolation, it is often clar-

ified when it is interpreted in the context of the remainder of the statutory

scheme. Bailey v. United States, 516 U.S. 137, 146 (1995).

Reviewing the text of section 240A as a whole, it is apparent that when

Congress intends a conviction to control eligibility for cancellation of

removal, it has expressly said so. For example, cancellation of removal for

a lawful permanent resident is conditioned on the fact that the alien “has not

been convicted of any aggravated felony.” Section 240A(a)(3) of the Act

(emphasis added). Cancellation of removal for an alien who is not a per-

manent resident also requires that the alien “has not been convicted of an

offense under section 212(a)(2), 237(a)(2), or 237(a)(3).” Section

240A(b)(1)(C) of the Act (emphasis added). Congress again used the word

“convicted” in its special rule for a battered spouse or child, conditioning

relief on a showing that the alien “has not been convicted of an aggravated

felony.” Section 240A(b)(2)(D) of the Act (emphasis added).

It is significant that Congress did not use the word “convicted” in

section 240A(d)(1) of the Act. Rather, it chose the word “committed” for

the rule governing the calculation of continuous residence and physical

presence. Congress used the separate terms “convicted” and “committed”

within section 240A itself, so we must assume that it intended each term

to have a “particular, nonsuperfluous meaning.” Bailey v. United States,

supra, at 146.

Further, this distinction between the commission and the conviction of

offenses occurs repeatedly throughout the Act. The difference in these terms

continues to be evident in the amendments to the Act made by the IIRIRA,

and by other amendments, both before and after the enactment of the IIRI-

RA, which were made by the Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), and the

Nicaraguan and Central American Relief Act of 1997, Pub. L. No. 105-100,

tit. II, 111 Stat. 2193, amended by Pub. L. No. 105-139, 111 Stat. 2644

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(1997) (“NACARA”).3

For example, conviction of a crime involving moral turpitude commit-

ted within a statutorily defined period has long been a ground for deporta-

tion. The current provision is found in section 237(a)(2)(A)(i) of the Act and

provides, in part, that an alien who “is convicted of a crime involving moral

turpitude committed within five years . . . after the date of admission” is

deportable. Similar statutory provisions were formerly found at section

241(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1251(a)(2)(A)(i)(I) (1994), section

241(a)(4) of the Act, 8 U.S.C. § 1251(a)(4) (1988), and section 19(a) of the

Immigration Act of February 5, 1917, 39 Stat. 874. It is well established that

this ground of deportation arises from the commission of the offense with-

in the 5-year period irrespective of whether or not the conviction for the

offense occurs within the 5 years. See Matter of A-, 6 I&N Dec. 684, 687

(BIA 1955); Matter of Yanez-Jaquez, 13 I&N Dec. 449, 451 (BIA 1970).

In view of the distinctions which Congress has made between the com-

mission of an offense and a conviction under the immigration laws, we find

it appropriate to heed Congress’ choice in construing the language of the

statute.

VII. THE LEGISLATIVE HISTORY DOES NOT

COMPEL A CONTRARY READING

It is appropriate to look to legislative history for guidance in discerning

legislative intent. In this case, the legislative history seemingly points to an

intent that is contrary to the natural and straightforward reading of the

statute. However, it is far too limited to use as a basis for concluding that

the words of the statute do not mean what they say. We find only one sen-

tence that is pertinent to the issue at hand. The Joint Explanatory Statement

of the Committee of Conference includes the statement that “[s]ection

240A(d) provides that the period of continuous residence or physical pres-

ence ends when an alien is served a notice to appear under section 239(a)

(for the commencement of removal proceedings under section 240), or

when the alien is convicted of an offense that renders the alien deportable

from the United States, whichever is earliest.” See H.R. Conf. Rep. No.

104-828, at 214, available in 1996 WL 563320, at *474 (emphasis added).

This sentence refers only to offenses that render an alien “deportable”

3

See, e.g., sections 101(f), 212(a)(2)(A), (B), (E), 237(a)(2), 238, 241(b)(3) of the Act, 8

U.S.C. §§ 1101(f), 1182(a)(2)(A), (B), (E), 1227(a)(2), 1228, 1231(b)(3) (1994 & Supp. II

1996); see also AEDPA §§ 435, 110 Stat. at 1274-75; 440(a), (d), (e)(7), (f), 110 Stat. at 1276-

78; IIRIRA §§ 203(c), 110 Stat. at 566; 301(a), 110 Stat. at 575; 304; 309(c)(4)(G), 110 Stat.

at 3009-626.

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without mentioning those relating to inadmissibility that are also included

in the section 240A(d)(1) cutoff rule. This one sentence appears to be an

incorrect and incomplete summary of section 240A(d)(1). There is no

analysis or discussion from which to conclude that Congress did not intend

to give effect to the term “committed” that it actually used in the statute to

curtail continuous residence or physical presence.

Given the conflict between the use of the word “committed” in the

statute and the use of the word “convicted” in the legislative history, we

must assume that one of these documents was drafted in error. An error in

a 54-page summary of a 197-page conference report is understandable and

is an example of why the Supreme Court cautions that legislative history is

often unreliable, particularly when it is sparse. See Board of Education of

Westside Community Schools v. Mergens, 496 U.S. 226, 238, 242 (1990). It

is the statute, not the legislative history, that was passed by Congress and

signed into law by the President. As stated by the Supreme Court, “Without

a clearer indication of congressional intent than provided by the extremely

sketchy legislative history . . . the best evidence of what Congress wanted

is found in the statute itself . . . .” Bread Political Action Committee v.

Federal Election Committee, 455 U.S. 577, 584 (1982). We would need

more persuasive legislative history than this single sentence to reject the

express language of the statute.

VIII. IN ENACTING SECTION 240A(d)(1), CONGRESS DEPARTED

FROM THE LANGUAGE OF FORMER SECTION 244(a)

We likewise find nothing in our past precedent which requires us to

interpret section 240A(d)(1) in a manner that is contrary to an ordinary con-

struction of the language of the statute. In Matter of P-, 6 I&N Dec. 788

(BIA 1955), we interpreted language in former section 244(a) of the Act, 8

U.S.C. § 1254(a) (1952), which provided a rule governing the calculation

of the period of continuous physical presence required to establish eligibil-

ity for suspension of deportation in cases where the alien was deportable

under certain criminal and other specified grounds. That language bears

some similarity to section 240A(d)(1) to the limited extent that it references

the “commission” of an act. The relevant language of former section 244(a)

provided that, in order to be eligible for relief, an alien who was deportable

under one of the designated grounds must have been “physically present in

the United States for a continuous period of not less than ten years imme-

diately following the commission of an act, or the assumption of a status,

constituting a ground for deportation.” (Emphasis added.)

Under that statutory scheme, the Board concluded that the commission

of the crime “did not become ‘a ground for deportation’ until he was con-

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victed of that act and sentenced therefor” and held that the 10-year period

must be measured from the date of the alien’s conviction and sentence.

Matter of P-, supra, at 790; see also Matter of Lozada, 19 I&N Dec. 637

(BIA 1988).

However, suspension of deportation under section 244(a) is not avail-

able to aliens, such as the respondent, who are in removal proceedings.

Aliens in removal proceedings may seek the relief of cancellation of

removal pursuant to section 240A(b) of the Act, under the rules enacted by

the IIRIRA, as amended by section 203(a)(1) of the NACARA, 111 Stat. at

2196-98.

Congress has shown its familiarity with the language of former section

244(a) by carrying it forward in the “special rule” applicable to certain

NACARA-eligible aliens. It is significant that Congress did not choose that

language to measure the time requirements under the general cancellation

of removal rules that apply to all other aliens. The language employed in

section 240A(d)(1) is meaningfully different from that at issue in Matter of

P-. When Congress replaces long-standing language with new language, it

is reasonable to give that new language an ordinary and natural construc-

tion. It is not appropriate to give it a strained reading, simply because of the

reading given to analogous, but meaningfully different language in prior

law.

Moreover, as a general matter, we note that the classes of aliens who

had been subject to the 10-year physical presence rule of former section

244(a) that was at issue in Matter of P-, supra, will largely be ineligible, by

virtue of their criminal or other specified misconduct, to seek relief under

the analogous cancellation of removal provisions in section 240A(b) per-

taining to nonpermanent residents. See sections 240A(b)(1)(C), (c)(4) of the

Act, as amended.

Congress has only carried the old rule forward into removal proceed-

ings for a limited category of aliens described in section 309(c)(5)(C)(i) of

the IIRIRA, as amended by section 203(a)(1) of the NACARA, who are eli-

gible to seek “special rule” cancellation of removal despite their inadmissi-

bility or deportability under the specified criminal and other grounds. See

IIRIRA § 309(f)(1)(B), as amended by NACARA § 203(b), 111 Stat. at

2198-99. For NACARA-eligible aliens seeking “special rule” cancellation

of removal, our decision in Matter of P-, interpreting language that has been

carried forward in the “special rule” provision at section 309(f)(1)(B)(iii),

may have continuing relevance. Id.

However, all other aliens are subject to the general rules for cancella-

tion of removal. For non-NACARA aliens the period of continuous resi-

dence or physical presence required for cancellation of removal is set forth

in sections 240A(a)(2), (b)(1)(A), and (2)(B) of the Act. Congress has

directed that the requisite time period is to be calculated under the rule

defined in section 240A(d)(1). When structuring that rule, Congress chose

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not to employ the “assumption of status” and “constituting” a ground for

deportation language that had been in place for decades for purposes of cal-

culating the accrual of time for certain suspension of deportation cases.

We therefore conclude that Matter of P-, supra, is inapposite to non-

NACARA cancellation of removal cases. Those cases are controlled by the

section 240A(d)(1) rule for calculating the period of continuous residence

or physical presence required for cancellation of removal.

In sum, neither the scant legislative history nor prior precedent compels

us to read the statute in a manner that is contrary to the words used by

Congress. As explained earlier, however, we find support within the statute

itself for giving full effect to the natural reading of the “has committed” lan-

guage.

IX. OTHER CONSTRUCTIONS LEAD TO ANOMALIES

We have considered alternative constructions of the statute, but we find

them unsatisfactory. The most obvious alternatives involve: (a) substituting

the date of conviction in place of the date of commission of the crime as the

cutoff point, which would be consistent with the language in the legislative

history; or (b) reading the statutory language to cut off the accrual of time

at the point when the alien finally becomes inadmissible or removable, as

the dissent of Board Member Guendelsberger suggests.

An approach which substitutes a requirement that the alien has been

convicted for the “has committed” language in section 240A(d)(1) admit-

tedly offers the attraction of ease of application in those cases where an

alien’s inadmissibility or deportability is dependent on the existence of a

conviction. However, such an interpretation would be unworkable in calcu-

lating the continuous period in those cases where some act other than a con-

viction renders an alien inadmissible or deportable.

For example, some grounds of inadmissibility may be established with-

out a conviction, such as inadmissibility under section 212(a)(2)(A)(i)(I),

for crimes involving moral turpitude, and under section 212(a)(2)(A)(i)(II),

for controlled substances offenses. Inadmissibility under these provisions

may be established by a conviction, but it may also be established by the

admission to the commission of, or the admission to acts which constitute

the essential elements of, one of those offenses.

Requiring a conviction would allow an alien who is rendered inadmis-

sible by his or her admissions to continue to accrue time, until served with

a notice to appear, despite having committed an offense that has rendered

him or her inadmissible. Such an approach is contrary to the language of

section 240A(d)(1).

We could, of course, substitute the concepts of “admits having com-

mitted” or “admits to acts constituting the essential elements of” a crime of

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moral turpitude in place of the “has committed” language chosen by

Congress. This would be consistent with looking to the date of conviction

in cases where a conviction is needed, but it would require substituting a

variety of concepts for the “has committed” language that Congress actual-

ly used. Moreover, this would mean that the controlling date is effectively

the date that the alien is finally rendered inadmissible or deportable, either

by virtue of a conviction or the required admissions of having committed a

crime. This brings us to the dissent’s proposal, which specifically focuses

on the date the alien is rendered inadmissible or removable.

The dissent’s proposed reading is that time ceases to accrue when the

alien is rendered inadmissible or removable. The use of such a date as the cut-

off date, however, would leave no role for the “has committed” language to

play in section 240A(d)(1). The statute would read as if the “has committed”

language were not present. But the statutory language focuses on “when the

alien has committed an offense.” It does not direct the inquiry to the date

“when the alien . . . [is rendered] . . . inadmissible . . . or removable.”

The Supreme Court has consistently expressed a deep reluctance to

interpret a statutory provision in a way that makes other language within the

same statute superfluous. See, e.g., Freytag v. Comm’r, 501 U.S. 868, 877

(1991); International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187,

201 (1991); Pennsylvania Dep’t of Pub. Welfare v. Davenport, 495 U.S.

552, 562 (1990). We simply cannot agree with a construction of the statu-

tory language here that effectively turns the “has committed” phrase into

surplusage.4

Despite its ease of administration in the large number of cases where a

conviction is needed for removability, a construction of the statute that

relies on the date of conviction in a case such as the one before us must

either ignore (as the dissent’s reading in effect would do) or give multiple

meanings to the “has committed” language selected by Congress for the

rule governing how continuous residence and physical presence are to be

calculated. An approach which substitutes various events for the “has com-

mitted” language in the statute, or which relegates that language to needless

surplusage, is simply not sensible.5

X. CONCLUSION

4

The last sentence of former section 212(c), 8 U.S.C. § 1182(c) (1994), as amended by

section 440(d) of the AEDPA, 110 Stat. at 1217, and section 306(d) of the IIRIRA, 110 Stat.

at 3009-612, did not use the word “when” and was not concerned with marking a point in time

for measuring or ending the accrual of residence or physical presence. Contrary to the dis-

sent’s argument, we do not see the relevant language of former section 212(c) performing a

“similar function” to the language of section 240A(d)(1).

5

We see no “lingering ambiguities” here to which the rule of lenity might otherwise

apply. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).

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We find that the only sensible construction of the statute is to give the

words used their natural and straightforward meaning. There is insufficient

legislative history here to conclude that Congress did not intend to give

effect to the “has committed” language in section 240A(d)(1). We will not

accord greater weight to a single sentence of legislative history, which

incompletely addresses the issue of termination of time, than we accord to

the language of the statute itself.

The language chosen by Congress directs that an alien cease accruing

the time required to establish eligibility for the relief of cancellation of

removal at the point where he or she abuses the hospitality of this country

by committing one of the designated offenses, so long as the offense sub-

sequently renders the alien inadmissible or removable. Adhering to the

direct command of the statutory language has not been shown to lead to any

anomalous or absurd results in removal cases. And, importantly, it allows us

to apply the statute in various situations, aside from those where a convic-

tion is needed for removability, without being forced to contort the ordinary

meaning of the provision as written and without making any language

superfluous.

Accordingly, this respondent’s period of continuous residence is

deemed to have ended on the date he committed his controlled substance

violation. The commission of that offense was prior to his attainment of the

required 7 years of continuous residence. Therefore, he is statutorily ineli-

gible for section 240A(a) cancellation of removal. Accordingly, we find that

the Immigration Judge’s pretermission of his application for cancellation of

removal was proper.

ORDER: The appeal is dismissed.

Board Member Anthony C. Moscato did not participate in the decision in

this case.

DISSENTING OPINION: John W. Guendelsberger, Board Member, in

which Paul W. Schmidt, Chairman; Gustavo D. Villageliu and Lory D.

Rosenberg, Board Members, joined

I respectfully dissent.

The respondent, a permanent resident alien, was found removable

under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8

U.S.C. § 1227(a)(2)(B)(i) (Supp. II 1996), on the basis of his conviction for

a controlled substance violation. He has applied for cancellation of removal

under section 240A(a) of the Act, 8 U.S.C. § 1229(b)(a) (Supp. II 1996), in

order to retain his status as a lawful resident of the United States. The

respondent is otherwise eligible for cancellation of removal if he can show

that he has 7 years of continuous residence in the United States after hav-

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ing been admitted in any status.1 Section 240A(a)(2) of the Act. The ques-

tion presented here is whether the termination provision in section 240A(d)

ended the qualifying period of residence as of the date of the respondent’s

conviction or the date of the crime.2 The majority concludes that the “nat-

ural reading” of section 240A(d) establishes that Congress intended to end

the qualifying period of residence as of the date the offense was committed.

I cannot agree.

The “natural” and grammatically correct reading of the statute, clear

legislative history directly on point, and basic principles of statutory con-

struction all call for an interpretation of section 240A(d)(1) that would ter-

minate the period of continuous residence at the time a respondent is ren-

dered inadmissible or removable. In this case, the respondent was rendered

removable upon conviction for the controlled substance violation. At that

point, he had accrued 7 years of continuous residence. I therefore disagree

with the majority’s determination that the respondent is ineligible for can-

cellation of removal under section 240A(a).

I. SECTION 240A(d)(1) ENDS ACCRUAL OF CONTINUOUS

RESIDENCE WHEN A RESPONDENT IS RENDERED

INADMISSIBLE OR REMOVABLE FOR HAVING

COMMITTED ONE OF THE DESIGNATED OFFENSES

Section 240A(d)(1) addresses termination of continuous residence in

the following terms:

For purposes of this section, any period of continuous residence or continuous physi-

cal presence in the United States shall be deemed to end when the alien is served a

notice to appear under section 239(a) or when the alien has committed an offense

referred to in section 212(a)(2) that renders the alien inadmissible to the United States

under section 212(a)(2) or removable from the United States under section 237(a)(2)

or 237(a)(4), whichever is earliest.

Boiled down to its essentials3, the critical language in section 240A(d)(1)

1

There is no dispute that the respondent is otherwise eligible for cancellation of

removal under section 240A(a). He has been admitted for permanent residence for more than

the required 5 years and has not been convicted of an aggravated felony. See sections

240A(a)(1), (3) of the Act.

2

The respondent was first admitted as a temporary resident on September 21, 1989. He

was convicted of possession of cocaine in July 1997. The offense date was in August 1992.

If section 240A(d)(1) ends continuous residence on the date of conviction, the respondent

accrued the required 7 years of continuous residence. If continuous residence ends on the

date of commission of the offense, the respondent lacks the required 7 years.

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Interim Decision #3389

for purposes of the issue presented in this case reads as follows:

[A]ny period of continuous residence . . . shall be deemed to end WHEN the alien has

committed an offense [referred to in section 212(a)(2)] that renders the alien . . .

removable from the United States under section 237(a)(2) . . . .

The final clause, “that renders the alien . . . removable,” is a subordinate

clause which modifies the direct object, “offense.” The “that renders”

clause is attached to, and is an integral part of, the main clause beginning

with the word “when.” It answers the question of when the commission of

particular offenses, those “referred to in section 212(a)(2),” ends accrual of

residence time. The subordinate clause attached to the main clause indicates

that termination occurs WHEN “the alien has committed an offense . . . that

renders the alien removable from the United States.” The “when” clause

does not end with the direct object, “an offense,” or the descriptive phrase

attached to it. It is limited by the “that renders” clause which modifies “an

offense” and describes an additional factor which must have occurred

before accrual of residence ends.

The majority asserts that the “that renders” clause merely defines the

types of offenses which cut off the accrual of time. But the types of offens-

es which cut off the accrual of time are earlier described as those offenses

“referred to in section 212(a)(2).” It is not the type of offense which is reg-

ulated by the “that renders” clause, but the impact of the offense, i.e., inad-

missibility or deportability. The “that renders” clause is, of course, descrip-

tive; it completes the description of when an offense which has been com-

mitted will terminate the accrual of residence.

The majority suggests that its reading of the statute may be better

understood if the word “subsequently” or “ultimately” is inserted before the

word “renders.” See Matter of Perez, 22 I&N Dec. 3389, at 6 (BIA 1999).

Notably, Congress did not choose to include such a modifier, and as an

administrative body, we are not free to add language or rewrite provisions

in order to achieve a particular meaning or result. Nor would such addi-

tional language necessarily achieve the result suggested by the majority.

The subordinate “that renders” clause would still modify the “when”

clause, as it now does. The suggested language would also make no sense

in those cases in which commission of an offense is the same event that ren-

ders the alien inadmissible or removable, as in the case of an alien charged

with having engaged in prostitution or commercialized vice. See section

212(a)(2)(D) of the Act, 8 U.S.C. § 1182(a)(2)(D) (1994 & Supp. II 1996).

3

There is no question that the respondent had accrued 7 years of continuous residence

prior to the service of the notice to appear. Because the respondent is charged with a ground

of removability, the reference to inadmissibility under section 212(a) has also been extracted.

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In such situations, there would be no “subsequent” event.

II. THE MAJORITY DISTORTS THE SIGNIFICANCE AND

MEANING OF THE “COMMITTED AN OFFENSE” LANGUAGE

The majority queries why Congress would have used the “has commit-

ted an offense” language had it meant to allow accrual of residence until

occurrence of some event after the date of commission. Part of the answer

is that section 212(a)(2), the universe of offenses which may eventually

result in termination of accrual of residence, contains a variety of descrip-

tions of the conduct which will render a respondent inadmissible or remov-

able. Some provisions require a criminal conviction.4 Some require only

admission of acts constituting a criminal offense.5 For some other provi-

sions the mere commission of an offense suffices to render an alien inad-

missible.6

Congress, having selected section 212(a)(2) grounds as the core of rel-

evant offenses for purposes of section 240A(d), could not describe those

offenses in terms of “convictions under section 212(a)(2)” because that

would leave out all of those grounds which render an alien inadmissible

without need for a conviction. The phrase “committed an offense referred

to in section 212(a)(2)” is a shorthand description which sweeps broadly

enough to encompass all the various acts, short of conviction, described in

the section 212(a)(2) grounds for inadmissibility.

The majority suggests that the “has committed” language would be

superfluous were the “that renders” clause read to govern when accrual of

residence terminates. But the “has committed” language is no more super-

fluous as used in section 240A(d) than it was in the last sentence of former

section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), as amended. The lan-

guage performs a similar function in both statutes: it describes a category of

offenses which may, upon occurrence of a later event, result in a cutoff of

eligibility for benefits. Former section 212(c) contained the following bar to

eligibility:

an alien who is deportable by reason of having committed a criminal offense covered

4

See, e.g., section 212(a)(2)(B) of the Act (conviction for two or more moral turpitude

offenses).

5

See, e.g., section 212(a)(2)(A) of the Act (admits having committed or admits commit-

ting acts which constitute the essential elements of a crime involving moral turpitude or con-

trolled substance violation).

6

See, e.g., section 212(a)(2)(D) of the Act (engaged in or is coming to the United States

to engage in prostitution or commercialized vice).

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Interim Decision #3389

in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section

241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of

their commission, otherwise covered by section 241(a)(2)(A)(i). (Emphasis added).7

Although most grounds of deportation listed in the section 212(c) bar

to relief required a conviction, section 241(a)(2)(B)(ii) of the Act, 8 U.S.C.

§ 1251(a)(2)(B)(ii) (1994), also rendered deportable “[a]ny alien who is, or

at any time after entry has been, a drug abuser or addict.” Thus there was a

need for the “committed any criminal offense” catchall in describing the

grounds covered, rather than “convicted of” or some other terminology.

Notably, mere commission of an offense was not enough to bar relief

under former section 212(c). But that did not make the section 212(c) “hav-

ing committed” language superfluous. The term was part and parcel of the

description of those categories of aliens who would be rendered ineligible

for relief upon occurrence of a subsequent event, in the case of section

212(c), a finding of deportability. See Matter of Fortiz, 21 I&N Dec. 1199

(BIA 1998) (holding that for an alien to be barred from eligibility for a

waiver under section 212(c) as one who “is deportable” by reason of hav-

ing committed a criminal offense covered by one of the criminal deporta-

tion grounds there enumerated, he or she must have been charged with, and

found deportable on, such grounds); Matter of Fuentes-Campos, 21 I&N

Dec. 905 (BIA 1997). Likewise, the term “has committed” in section

240A(d) describes the categories of criminal acts which subject an alien to

the stop-time rule and directs that time ends when the alien is rendered inad-

missible or removable. The majority’s purported concern over superfluous

language is therefore simply unfounded.

Another provision using the point of “commission” to describe the

grounds covered is former section 244(a)(2) of the Act, 8 U.S.C. §

1254(a)(2) (1994), which precludes suspension of deportation for persons

deportable under former sections 241(a)(2), (3), or (4) who have not been

physically present in the United States for a continuous period of not less than 10 years

immediately following the commission of an act, or the assumption of a status, con-

stituting a ground for deportation. (Emphasis added.)

In construing section 244(a)(2), this Board ruled that it was not the “com-

mission of the act,” but the fact of deportability for having committed such

an offense, that was the crucial point in time. Matter of Lozada, 19 I&N

Dec. 637 (BIA 1988); Matter of P-, 6 I&N Dec. 788 (BIA 1955).

7

This limitation on section 212(c) relief was added by section 440(d) of the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214,

1217 (“AEDPA”), as amended by section 306(d) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-

546, 3009-612 (“IIRIRA”).

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The statute in Matter of P- defined the event that triggered the com-

mencement, rather than the termination, of the required period. The respon-

dent in Matter of P- would have accrued the requisite 10 years if measured

from the date of commission of the crime, but would not if the operative

date was the date he was convicted. The Board found that the commission

of the crime “did not become ‘a ground for deportation’ until he was con-

victed of that act and sentenced therefor” and accordingly ruled that the 10-

year period must be measured from the date of his conviction and sentence.

Matter of P-, supra, at 790.

Matter of P- was followed in Matter of Lozada, supra, where the Board

applied the same language that was at issue in Matter of P- and concluded

that “it is the conviction, not the commission of the offense, that renders the

alien deportable.” Matter of Lozada, supra, at 640. Notably, the language

used by the Board, “renders the alien deportable,” is the same language

selected by the drafters of section 240A(d), i.e., the cutoff occurs “when the

alien has committed an offense . . . that renders the alien inadmissible . . .

or removable.” (Emphasis added.) This choice of language strongly sug-

gests that the drafters’ intentions as to the workings of the termination pro-

vision in section 240A(d) were consistent with the Board’s explanation in

Lozada of the operation of the termination provision in section 244(a).

When Congress replaced the section 212(c) waiver and section 244(a)

suspension of deportation with cancellation of removal in sections 240A(a)

and (b), it considerably revised the criminal bars to eligibility. It retained,

however, the “committed an offense” formula from former section 212(c) to

describe the types of grounds which would affect timing. As in former sec-

tion 212(c), it is the point at which the respondent is rendered inadmissible

or removable that is crucial in terms of timing in section 240A(d).

III. LEGISLATIVE HISTORY AND BASIC PRINCIPLES OF

STATUTORY CONSTRUCTION INDICATE THAT THE

ACCRUAL OF TIME ENDS WHEN THE RESPONDENT

IS RENDERED INADMISSIBLE OR REMOVABLE

On rare occasions, legislative history affords insight into the intent of

the framers. Remarkably, in this case, we have an instance of legislative his-

tory directly on point. The Joint Explanatory Statement of the Committee

of Conference clearly states: “Section 240A(d) provides that the period of

continuous residence or physical presence ends when an alien is served a

notice to appear under section 239(a) (for the commencement of removal

proceedings under section 240), or when the alien is convicted of an offense

that renders the alien deportable from the United States, whichever is earli-

est.” See H.R. Conf. Rep. No. 104-828, at 214, available in 1996 WL

563320, at *474 (emphasis added). The legislative history makes no men-

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tion of the date that the alien has committed the offense.

The majority declares the legislative history incomplete and, therefore,

incorrect. The legislative history may be technically incomplete, because it

does not address inadmissibility and those few grounds of inadmissibility

which do not require a conviction in order that the respondent be rendered

inadmissible, e.g., admission of commission of a moral turpitude crime

under section 212(a)(2)(A) or engagement in prostitution under section

212(a)(2)(D). But the reference in the legislative history is to offenses

which render the alien deportable (now removable), and all of the covered

offenses in section 237(a)(2) (i.e., those which are referred to in section

212(a)(2)) require a conviction before the alien is considered removable.8

Thus the legislative history’s reference to “conviction” is an accurate reflec-

tion of the statute’s effect in removal cases, i.e., for all the applicable

removal grounds the alien is rendered removable upon conviction of a des-

ignated offense. While the legislative history may be technically incom-

plete, that does not make it incorrect, as the majority asserts, insofar as the

expression of the general rule of interpretation to be applied to those offens-

es for which a conviction is required in the ground for inadmissibility or

removal. In that sense the legislative history affords important guidance, if

not a clear resolution, of the question of when, by and large, termination of

residence occurs.

As discussed above, the guidance afforded in the legislative history of

section 240A(d) is consistent with the approach used to bar relief in the

predecessor provisions to cancellation of removal and in the Board’s prior

interpretation of similar statutory language in former section 244(a)(2).

Other provisions barring relief for those involved in criminal activity gen-

erally resort to the date of conviction as the crucial factor in terminating eli-

gibility. See, e.g., sections 240A(a)(3), (b)(1)(C) of the Act.

The majority’s “anomalies” argument is premised on the proposition

that we propose to substitute “conviction” for “commission” in the statute.

No such proposal has been made. Nor is that what the statute says. The

statute refers to the point at which the alien is rendered inadmissible or

removable. Thus the “anomalies” argument is built upon a false premise and

fails.

The majority’s statement that requiring a conviction would allow an

alien who is rendered inadmissible by his or her admissions to continue to

8

Under the terms of section 240A(d), only those section 237(a)(2) offenses which over-

lap with offenses described in section 212(a)(2) operate to terminate accrual of time. These

section 237(a)(2) offenses are convictions for moral turpitude crimes (section 237(a)(2)(A))

and for controlled substance violations (section 237(a)(2)(B)(i)). The bars for aggravated

felony convictions, firearms convictions, and other offenses described in section 237(a)(2) do

not overlap with offenses described in section 212(a)(2).

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accrue time until served with a notice to appear is simply wrong. If the alien

is rendered inadmissible under the terms of section 212(a)(2) by admission

of an offense, the accrual of residence would cease with the date of the

admission of the offense. See, e.g., section 212(a)(2)(D) of the Act (inad-

missible if engaged in or coming to the United States to engage in prostitu-

tion or commercialized vice).

The termination of residence time upon the occurrence of the event

which renders the alien inadmissible or removable is the historical approach

and a common sense approach which eases administration of the law. Under

this approach, as a practical matter, it is generally the date of conviction

which will become the crucial point to be identified. The date of conviction

is normally easy to pinpoint. Under the majority approach, in every case

involving section 240A(d), the adjudicator will have to identify the date of

commission of the offense. Just when a crime was “committed” will, in

some cases, be uncertain or indeterminate. In cases involving conspiracies

to commit an offense, for example, there will be considerable difficulty in

identifying the offense date. Thus, ease of administration also augers in

favor of a reading which recognizes that accrual of time ends when the alien

is rendered inadmissible or removable.

The respondent’s offense is one “referred to in section 212(a)(2)” at

subparagraph (A)(i)(II), which pertains to controlled substance violations.

However, with certain exceptions not applicable in this case, an alien who

has committed a controlled substance violation is not inadmissible under

section 212(a)(2) until he has been convicted.9 Similarly, an alien is not

removable under subparagraph (B)(i) of section 237(a)(2) without a con-

viction.

Any lingering doubts as to the appropriate construction of section

240A(d), after examining legislative history and other aids to construction,

should be resolved by the rule of lenity, a principle of statutory interpreta-

tion deeply imbedded in immigration law. This rule requires that when a

limitation on relief from removal is ambiguous, it must be afforded the nar-

rower meaning, the meaning in which fewer activities bar the alien from eli-

gibility. The reason for this rule in the immigration area is that, given the

drastic consequences of deportation or removal, Congress must speak clear-

ly and definitely before we apply a bar to relief from removal. See INS v.

Errico, 385 U.S. 214, 225 (1966) (construing section 241(f) of the Act, 8

U.S.C. § 1251(f)(1964), and indicating that doubts as to the correct con-

struction of the statute affording relief from deportation should be resolved

9

See generally section 212(a)(2)(A)(i) of the Act; Matter of J-, 2 I&N Dec. 285 (BIA

1945). We also note that the record does not include evidence that the respondent is a drug

trafficker under section 212(a)(2)(C), which may render a respondent inadmissible without a

conviction.

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in the alien’s favor); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 449

(1987) (noting the “longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the alien”); Fong Haw Tan v.

Phelan, 333 U.S. 6, 10 (1948) (stating that any doubts regarding the con-

struction of the Act are to be resolved in the alien’s favor); Matter of Tiwari,

19 I&N Dec. 875 (BIA 1989). Here, the rule of lenity also points toward the

interpretation which terminates the period of continuous residence when the

respondent is rendered inadmissible or deportable.

IV. CONCLUSION

A common sense reading, clear legislative history, ease of administra-

tion, and our prior interpretation of similar statutory language indicate that

section 240A(d) terminates accrual of time toward the continuous residence

requirement when the respondent is rendered inadmissible or removable for

commission of an offense described in section 212(a)(2). The respondent

accrued more than the requisite 7 years of continuous residence between his

admission as a temporary resident on September 21, 1989, and his convic-

tion on July 11, 1997, which rendered him removable. Accordingly, I would

sustain his appeal and remand the record to the Immigration Judge for con-

sideration of the respondent’s application for cancellation of removal under

section 240A(a).

708