Interim Decision #3428

Interim Decision #3428

In re Ignacio CAMPOS-TORRES, Respondent

File A91 089 115 - Chicago

Decided March 21, 2000

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

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

1229b(d)(1) (Supp. II 1996), an offense must be one “referred to in section 212(a)(2)” of the

Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal.

A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8

U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus

does not stop the further accrual of continuous residence or continuous physical presence for

purposes of establishing eligibility for cancellation of removal.

Lisa J. Palumbo, Esquire, Chicago, Illinois, for respondent

Seth B. Fitter, Assistant District Counsel, for the Immigration and Naturalization Service

Before:

Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; SCIALABBA,

Vice Chairman; VACCA, HOLMES, HURWITZ, VILLAGELIU, FILPPU,

ROSENBERG, MATHON, GUENDELSBERGER, MOSCATO, and MILLER,

Board Members. Concurring Opinion: GRANT, Board Member. Dissenting

Opinion: COLE, Board Member, joined by HEILMAN and JONES, Board

Members.

HURWITZ, Board Member:

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

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

February 12, 1998, decision finding him ineligible for cancellation of

removal pursuant to section 240A(a) of the Immigration and Nationality

Act, 8 U.S.C. § 1229b(a) (Supp. II 1996), because his commission of a

firearms offense terminated his residence in the United States prior to the

attainment of the statutorily required 7 years of continuous residence. There

is no issue on appeal regarding the respondent’s removability pursuant to

section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996),

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based on his conviction for a firearms violation.

We find that the respondent’s firearms offense did not cut off his continuous residence in the United States and that he is therefore eligible to

apply for cancellation of removal. Accordingly, we will sustain the appeal

and remand the record to the Immigration Judge to allow the respondent to

apply for that relief.

I. ISSUE PRESENTED

The issue in this case is whether, under the rule stated in section

240A(d)(1) of the Act, an offense that is not “referred to in section

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

stop the further accrual of continuous residence in the United States, which

is required to establish eligibility for cancellation of removal.

II. FACTS

The respondent, a native and citizen of Mexico, was admitted to the

United States as a temporary resident on May 4, 1988, and adjusted his status to that of a lawful permanent resident on December 13, 1990. It is

uncontested that on September 23, 1993, the respondent was convicted in

the Circuit Court of Cook County, Illinois, of a single offense of unlawful

use of a weapon, in violation of chapter 38, section 24-1(a)(7) of the Illinois

Compiled Statutes Annotated.1 The respondent was sentenced to 18

months’ probation. On June 25, 1997, the Immigration and Naturalization

Service issued and served a Notice to Appear (Form I-862), commencing

these removal proceedings and charging the respondent with removability

under section 237(a)(2)(C) of the Act.

III. THE CONTINUOUS RESIDENCE REQUIREMENT

The sole issue before us is whether the respondent’s commission of a

firearms offense precludes him from satisfying the requirement in section

240A(a)(2) of the Act that he have “resided in the United States continuously for 7 years after having been admitted in any status.”

The rule for calculating the period of continuous residence or continuous physical presence necessary to establish eligibility for cancellation of

1

That provision is now designated as chapter 720, section 5/24-1(a)(7) of the Illinois

Compiled Statutes, without substantive change.

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removal under sections 240A(a) and (b) of the Act is set forth in section

240A(d)(1), often referred to as the “stop time” rule. Matter of MendozaSandino, 22 I&N Dec. 3426 (BIA 2000); Matter of Nolasco, 22 I&N Dec.

3385 (BIA 1999). Section 240A(d)(1) provides, in its entirety, as follows:

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 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

[(i.e., deportable)]2 from the United States under section 237(a)(2) or 237(a)(4),

whichever is earliest. (Emphasis added.)

The issue that was raised before the Immigration Judge and argued in

the initial briefs submitted on appeal concerned the appropriate date to

apply in determining when accrual of continuous residence ends. We have

since decided that issue in Matter of Perez, 22 I&N Dec. 689 (BIA 1999),

where we held that continuous residence or physical presence terminates on

the date that an offense specified in section 240A(d)(1) is committed.3

Neither the parties nor the Immigration Judge addressed the threshold question whether a firearms offense is one of the crimes referred to in section

240A(d)(1) that will “stop time.” We accordingly requested briefing on this

issue, and both parties timely responded with thoughtful briefs.

IV. THE PARTIES’ POSITIONS

The respondent argues that Congress did not intend that the “stop time”

rule apply to firearms offenses. He contends that section 240A(d)(1) “clearly states that an alien’s offense, as a starting point, must be an offense

referred to in section 212(a)(2)” before the “stop time” rule will apply.

Accordingly, the respondent’s position is that, under the plain language of

2

Although section 240A generally uses the separate terms “inadmissible” in the context

of section 212(a) of the Act and “deportable” in the context of section 237(a) of the Act, section 240A(d) uses the term “removable” rather than “deportable” in relation to section

237(a)(2). The term “removable” encompasses both section 212(a) grounds of inadmissibility and the section 237(a) grounds of deportability, and it may ordinarily be used in place of

either term. See section 240(a)(2) of the Act, 8 U.S.C. § 1229a(a)(2) (Supp. II 1996).

However, because of the nature of the particular question before us and for the sake of clarity, we will use the separate terms in our discussion. See, e.g., sections 240A(a), (b)(1),

(b)(2)(D), (c)(4) of the Act.

3

The actual date that the respondent committed his firearms offense is not clear from the

record. The conviction document establishes, however, that he was convicted of the offense

prior to the time he attained 7 years of continuous residence. It necessarily follows that the

offense was committed prior to that time.

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the statute, firearms offenses do not cut off continuous residence because

they are not “referred to” in section 212(a)(2) of the Act. The respondent

reasons that Congress would not have twice referenced section 212(a)(2) in

section 240A(d)(1) if it had intended that offenses included in either section

212(a)(2) or sections 237(a)(2) and (4) would stop the accrual of time. The

respondent urges that in passing the Illegal Immigration Reform and

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

110 Stat. 3009-546 (“IIRIRA”), which replaced the separate and distinct

deportation and exclusion proceedings with uniform removal proceedings,

Congress intended to eliminate many of the differences between those separate proceedings. By suggesting that an offense must first be “referred to

in section 212(a)(2),” the respondent submits that Congress sought to create a “sense of parity between the two previously distinct proceedings by

attempting to include in the rule offenses that were found in both sections

of the statute.”

The Service, on the other hand, argues that section 240A(d)(1) is

ambiguous, but should be interpreted as providing for termination of continuous residence upon the commission of an offense included in any of the

three specified statutory sections. According to the Service, the plain language of section 240A(d)(1) does not clearly support either its position or

that of the respondent. In the Service’s view, either interpretation relegates

some of the language in the statute to surplusage. However, the Service

maintains that its reading presumes a grammatical error, whereas the

respondent’s position leaves the references to sections 237(a)(2) and (4)

without any effect. The Service contends that “[p]resumably, the drafters of

section 240A(d)(1) would more likely make a grammatical error, than

include a removal ground that would be totally ineffective in stopping

accrual of time as a resident.”

V. ANALYSIS

There is no question that the respondent’s offense rendered him

deportable under one of the grounds referenced in section 240A(d)(1) of the

Act. Specifically, he is deportable under section 237(a)(2)(C) on the basis

of his firearms offense. Thus, he is deportable under one of the criminal

grounds included within section 237(a)(2). However, the plain language of

section 240A(d)(1) also states that, as a prerequisite, an offense must be

“referred to in section 212(a)(2)” of the Act in order to stop accrual of time.

See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987) (stating that

there is a “strong presumption that Congress expresses its intent through the

language it chooses”); American Tobacco Co. v. Patterson, 456 U.S. 63, 68

(1982) (presuming “that the legislative purpose is expressed by the ordinary

meaning of the words used”); Chevron, U.S.A., Inc. v. Natural Resources

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Defense Council, Inc., 467 U.S. 837, 843 (1984) (holding that courts “must

give effect to the unambiguously expressed intent of Congress”). The

offenses included in section 237(a)(2)(C) of the Act are not referred to in

section 212(a)(2) of the Act and are therefore not “stop time” offenses. See

section 212(a)(2) of the Act.

The phrase “referred to in section 212(a)(2)” could not be more clear,

and we will apply its plain meaning. We are unaware of any legislative history that would overcome the strong presumption that these words mean

what they say. Richards v. United States, 369 U.S. 1, 10 (1962) (asserting

that, notwithstanding the ease of application inherent in an alternative construction of a statute, the courts “are bound to operate within the framework

of the words chosen by Congress and not to question the wisdom of the latter in the process of construction”). In section 240A(d)(1) of the Act,

Congress enacted a rule that requires a determination that an offense is

included in section 212(a)(2) before it will operate to cut off the accrual of

time. See Matter of Perez, supra, at 693 (holding that a controlled substance

offense that rendered the alien deportable under section 237(a)(2)(B) is an

offense that is referred to in section 212(a)(2) of the Act and thus terminates

continuous residence under section 240A(d)(1)).

The statute could easily have been drafted without the phrase “referred

to in section 212(a)(2),” or it could have been written so that any offense in

sections 212(a)(2), 237(a)(2), or 237(a)(4) would operate to cut off time, as

the Service contends that Congress intended. But that is not what the statute

says, and it would take far more than a simple grammatical correction to

reach the meaning urged by the Service. Our task is not to improve on the

statute or to question the wisdom of it, but rather to interpret the language

that was enacted as law. Richards v. United States, supra.

It is important to note that several of the grounds of deportability found

in section 237(a)(2) of the Act are referred to in section 212(a)(2) of the

Act, whereas others, such as the ground set forth in section 237(a)(2)(C),

are not. Compare section 212(a)(2) of the Act with section 237(a)(2) of the

Act. By contrast, of course, all of the offenses listed in section 212(a)(2) are

necessarily “referred to in section 212(a)(2).” Under the interpretation proposed by the Service, time would stop with the commission of any offense

that renders the alien inadmissible under section 212(a)(2) or deportable

under sections 237(a)(2) or (4). This reading would render the phrase

“referred to in section 212(a)(2)” surplusage, because there would be no

reason to distinguish between those offenses that constitute grounds of

deportability under section 237(a)(2), but not grounds of inadmissibility

under section 212(a)(2) (such as the respondent’s firearms offense), and

those that fall within both categories. See Matter of Perez, supra, at 699

(holding that provisions within statutes should not be interpreted in such a

way as to render other provisions superfluous) (citing Freytag v. Comm’r,

501 U.S. 868, 877 (1991); International Union, UAW v. Johnson Controls,

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Inc., 499 U.S. 187, 201 (1991); Pennsylvania Dep’t of Pub. Welfare v.

Davenport, 495 U.S. 552, 562 (1990)). The Service’s position writes the

phrase “referred to in section 212(a)(2)” out of section 240A(d)(1), materially changing its meaning.

Another important rule of statutory construction is that, in ascertaining

the “plain meaning” of the statute, the Board must consider both “the particular statutory language at issue, as well as the language and design of the

statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).

Indeed, the paramount index of congressional intent is the plain meaning of

the words used in the statute as a whole. See INS v. Cardoza-Fonseca,

supra, at 431. Thus, in construing the language of section 240A(d)(1) of the

Act, we must also consider the language in section 240A as a whole. See

Matter of Perez, supra, at 694 (providing that if an ambiguity is perceived

when one provision is read in isolation, it is often clarified when it is interpreted in the context of the statutory scheme as a whole) (citing Bailey v.

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

We note that Congress referred to grounds of inadmissibility and

deportability several times throughout section 240A of the Act. For

instance, section 240A(b)(1)(C) refers to sections 212(a)(2), 237(a)(2), and

237(a)(3) of the Act, stating that nonpermanent residents who have been

convicted of an offense under any of these provisions are ineligible for cancellation of removal. Similarly, in delineating special rules of eligibility for

battered spouses or children, section 240A(b)(2)(D) specifically states that

these rules apply only to aliens who are not inadmissible under sections

212(a)(2) or (3), or deportable under section 237(a)(1)(G) or sections

237(a)(2), (3), or (4) of the Act. The fact that, throughout section 240A, the

statute lists specific—and different—grounds of inadmissibility under section 212(a) and grounds of deportability under section 237(a) supports our

reading that, in section 240A(d)(1) of the Act, there is a meaningful distinction between those grounds of deportability under section 237(a) that

are referred to in section 212(a)(2), and those that are not.

Nonetheless, we are cognizant that this interpretation of section

240A(d)(1) of the Act leaves the phrase “or 237(a)(4)” without any meaningful effect because none of the offenses listed in section 237(a)(4) of the

Act are referred to in section 212(a)(2) of the Act. Rather, section 212(a)(3)

of the Act includes the security and related offenses analogous to those in

section 237(a)(4). Compare section 237(a)(4) of the Act with sections

212(a)(2), (3) of the Act. Normally, as noted above, we would not read a

statutory provision in such a way as to render another provision superfluous. However, looking to other subsections within section 240A of the Act

reveals that it is not the language of section 240A(d)(1) that renders the “or

237(a)(4)” language superfluous.

Section 240A(c) of the Act lists specific categories of aliens who are

statutorily ineligible for cancellation of removal under sections 240A(a) and

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(b)(1). Section 240A(c)(4) provides that an alien who is “deportable under

of [sic] section 237(a)(4)” is ineligible for relief under sections 240A(a) or

(b)(1). A similar bar applies to those aliens seeking cancellation of removal

under the section 240A(b)(2) special rule for battered spouses and children.

See section 240A(b)(2)(D) of the Act. Thus, under sections 240A(b)(2)(D)

and 240A(c)(4), any alien who is deportable under section 237(a)(4) of the

Act is categorically barred from a grant of cancellation of removal.

Consequently, the inclusion of this ground of deportability within section

240A(d)(1) is merely an additional reference.

Simply put, it would be irrelevant whether a charge of deportability

under section 237(a)(4) terminates an alien’s period of continuous residence

or physical presence because deportability under that charge automatically

renders an alien statutorily ineligible for cancellation of removal pursuant

to sections 240A(b)(2)(D) or (c)(4) of the Act. Thus, ignoring the duplicative reference to section 237(a)(4) in section 240A(d)(1) has no impact on

section 240A as a whole, because the presence or absence of that language

in section 240A(d)(1) has no effect on eligibility for cancellation of

removal. However, ignoring the phrase “referred to in section 212(a)(2)”

would materially alter the criteria for cancellation of removal. Mindful of

our obligation to consider “the language and design of the statute as a

whole,” we will give effect to that phrase. K Mart Corp. v. Cartier, Inc.,

supra, at 291. According to the plain and ordinary meaning of that language, an offense must be “referred to in section 212(a)(2)” before it will

operate to cut off accrual of time under section 240A(d)(1).

Accordingly, we find that because the respondent’s firearms offense,

which rendered him deportable under section 237(a)(2)(C) of the Act, is not

referred to in section 212(a)(2) of the Act, it did not “stop time” under section 240A(d)(1). The respondent’s period of continuous residence began

when he was admitted as a temporary resident on May 4, 1988. See Matter

of Perez, supra, at 692. The Notice to Appear was not served until more than

7 years later. See section 240A(d)(1) of the Act. Therefore, the respondent

has satisfied the continuous residence requirement of section 240A(a)(2).

We will accordingly sustain the respondent’s appeal and remand the record

to the Immigration Judge for a hearing on the merits of the respondent’s

application for cancellation of removal.

ORDER: The appeal is sustained.

FURTHER ORDER: The Immigration Judge’s order of February

12, 1998, is vacated, and the record is remanded to the Immigration Court

for further proceedings consistent with the foregoing opinion.

CONCURRING OPINION: Edward R. Grant, Board Member

I respectfully concur.

There is much to agree with in the dissenting opinion of Board Member

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Cole. It seems unlikely that Congress, in the course of enacting a statute that

merged the formerly separate exclusion and deportation proceedings into a

single form of removal proceedings and otherwise sought to streamline and

make consistent the process of immigration adjudications, would create an

eligibility rule for discretionary relief that draws an apparently arbitrary distinction between various forms of criminal offenses. The result in this case

is particularly ironic—that the commission of a firearms offense does not

stop the accrual of time-in-residence necessary to establish eligibility for

the relief of cancellation of removal under section 240A(a) of the

Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (Supp. II 1996). This

is so because in fashioning the overall eligibility rules for section 240A(a)

cancellation, which is the successor to relief under former section 212(c) of

the Act, 8 U.S.C. § 1182(c) (1994), Congress did not carry over the rule disallowing waiver of offenses that are grounds of inadmissibility under section 212(a) of the Act but have no analogue in the grounds of deportability

under section 237(a) of the Act, 8 U.S.C. § 1227(a) (Supp. II 1996) (formerly section 241(a) of the Act, 8 U.S.C. § 1251(a) (1994)). See Matter of

Gabryelsky, 20 I&N Dec. 750, 753-54 (BIA 1993). Thus, Congress plainly accorded eligibility for cancellation of removal to a category of offenders—chiefly those with firearms convictions—who formerly were ineligible for section 212(c) waivers. That Congress would have further intended

to treat such offenders more generously than those convicted of crimes

“referred to in section 212(a)(2)” of the Act, 8 U.S.C. § 1182(a)(2) (1994 &

Supp. II 1996), does seem improbable.

However, as tempting as it is to correct this anomaly, to do so would

cross the line into revision of the statute. The result to which the ambiguous

statutory language points may be strange. But this is insufficient to warrant

resolving the ambiguity by reading a clause out of the statute—which the

dissenting opinion does to the phrase “referred to in section 212(a)(2).” In

all likelihood, the unclear drafting of section 240A(d)(1) represents a technical error that Congress is free to correct in subsequent legislation. I would

wait for Congress to so act and, in the meantime, join the decision of the

majority.

DISSENTING OPINION: Patricia A. Cole, Board Member, in which

Michael J. Heilman and Philemina McNeill Jones, Board Members, joined

I respectfully dissent. I disagree that a “plain reading” of the language

at issue supports the majority’s conclusion that an alien who is deportable

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

U.S.C. § 1227(a)(2)(C) (Supp. II 1996), continues to accrue continuous residence after the date that the underlying firearms offense was committed.

The language of section 240A(d)(1) of the Act, 8 U.S.C. § 1229b(d)(1)

(Supp. II 1996), that we are charged with interpreting states that continuous

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residence or physical presence ends “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 [(i.e.,

deportable)] from the United States under section 237(a)(2) or 237(a)(4).”

If the meaning of this statutory language were clear on its face, no further inquiry would be necessary. Unfortunately, the language is not clear.

The phrase “referred to in section 212(a)(2)” of the Act, 8 U.S.C. §

1182(a)(2) (1994 & Supp. II 1996), and the inclusion of section 237(a)(4)

offenses in the “stop time” rule cannot be reconciled because, as the majority points out, none of the security and related grounds offenses included in

section 237(a)(4) are “referred to in section 212(a)(2),” yet they are explicitly included in section 240A(d)(1) as “stop time” offenses.

The Supreme Court has observed that “words are inexact tools at best,”

and it is often necessary to place the words of a statute in their proper context to discern their meaning. Harrison v. Northern Trust Co., 317 U.S. 476,

479 (1943). When the plain language is unclear, our task is to offer a reasonable interpretation that gives effect to congressional intent. Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 84243 (1984).

As a preliminary matter, I agree with the majority that section 212(a)(2)

of the Act does not include a reference to firearms convictions. Thus, unless

a particular firearms offense would also qualify as one of the specifically

designated section 212(a)(2) offenses,1 I would not consider it to be

“referred to in section 212(a)(2).”

However, section 240A(d)(1) also includes section 237(a)(4) offenses.

These security-related offenses are not “referred to in section 212(a)(2).”

Thus, the majority’s interpretation that an offense must, as a preliminary

matter, be included in section 212(a)(2) does not offer a way to read the

“referred to in section 212(a)(2)” language in harmony with the reference

to section 237(a)(4). The majority seems to gloss over the fact that the

statute, as presently drafted, does not offer a plain meaning. Instead, it

leaves the choice of ignoring either the “referred to in section 212(a)(2)”

language or the section 237(a)(4) reference.

In my view, the inclusion of the section 237(a)(4) offenses in the “stop

1

For example, a theft or robbery offense with an element specifying that it was committed with a firearm would be included in the section 212(a)(2)(A)(i)(I) ground of inadmissibility (crimes involving moral turpitude). Likewise, crimes that are included in section

212(a)(2)(A)(i)(II) (controlled substance violations) may also include a firearms offense, and

an offense under section 212(a)(2)(B) (two or more criminal offenses for which the aggregate

sentence is 5 years or more of confinement) can include firearms offenses, as the only restriction on the type of crime included in section 212(a)(2)(B) is that it not be a purely political

offense. The Service has not argued that the respondent’s firearms offense would be included

in these, or any other, criminal grounds in section 212(a)(2) of the Act.

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time” rule cuts against reading the statute to require that even those aliens

who are rendered deportable by the commission of a section 237(a)(2) or

(4) offense must, before the offense will be considered a “stop time”

offense, have their offense evaluated and determined to fall under a comparable section 212(a)(2) ground of inadmissibility. While many, if not most,

of the section 237(a)(2) offenses would meet that test, none of the section

237(a)(4) offenses would, leaving the reference to section 237(a)(4) without meaning under the majority’s interpretation.

I am aware that the statute provides that cancellation of removal under

sections 240A(a) and (b)(1) does not apply to an alien who is “deportable

under section 237(a)(4).” Section 240A(c)(4) of the Act. Deportability

under section 237(a)(4) also bars relief under the special rule in section

240A(b)(2) relating to battered spouses and children. Section

240A(b)(2)(d). This seemingly makes redundant the reference to section

237(a)(4) offenses in the “stop time” rule, since there would be no need to

reach the issue of continuous residence or physical presence for an alien

deportable on these grounds. However, “[r]edundancies across statutes are

not unusual events in drafting, and so long as there is no ‘positive repugnancy’ between two laws, a court must give effect to both.” Connecticut

Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (citation omitted).

Why Congress structured the provision as it did is unknown. The legislative history suggests that, at some point in its drafting, section

240A(d)(1) was intended to also serve as the rule for calculating the period

of time required for relief under section 212(h) of the Act, 8 U.S.C. §

1182(h) (1994 & Supp. II 1996), although there is no reflection of that

intent in the final version of the Illegal Immigration Reform and Immigrant

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

3009-546 (“IIRIRA”). See 142 Cong. Rec. H10,841, H10,900 (1996).

Congress did, however, expressly make the rule apply for calculating the

period of physical presence required for suspension of deportation under

former section 244(a) of the Act, 8 U.S.C. § 1254(a) (1994), except for certain exempted classes of aliens. See Matter of Nolasco, 22 I&N Dec. 632

(1999); IIRIRA § 309(c)(5), 110 Stat. at 3009-627. And deportability on a

security ground does not statutorily preclude section 244(a)(2) suspension

of deportation. The reference to section 237(a)(4) (formerly section

241(a)(4) of the Act, 8 U.S.C. § 1251(a)(4) (1994)), may therefore not be a

redundancy when applied in the context of section 244(a)(2) suspension

cases. In any event, the section 237(a)(4) language is there, and I believe

that giving it meaningful effect in the section 240A(d)(1) rule would best

preserve the overall legislative intent and the structure of the cancellation of

removal statute.

Section 240A(a) cancellation of removal is the replacement form of

relief for the repealed relief previously available under former section

212(c) of the Act, 8 U.S.C. § 1182(c) (1994). See H.R. Rep. No. 104-469

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(1996). Although there is sparse legislative history directly addressing the

question before us, what little I have found suggests that Congress was

responding to concerns that, under former section 212(c), aliens had been

allowed to accrue continuous residence while being punished for the very

criminal act that was the basis of their deportation. See S. Rep. No. 104-48,

at 47 (1995). The inclusion in the final bill of the section 240A(d)(1) measure cutting off time as of the date an alien commits the offense that renders

him or her inadmissible or deportable directly addresses those concerns. I

have found nothing in the legislative history to suggest that Congress

required that a deportable offense be comparable to one of those enumerated in section 212(a)(2) in order for it to stop the accrual of time. To the contrary, I interpret Congress’s specific reference to deportable offenses in the

rule as an attempt to clarify that both deportable and inadmissible offenses

qualify to stop time.

To the extent that the very brief comment pertinent to section 240A(d)(1)

in the Joint Explanatory Statement of the Committee of Conference on H.R.

2202 sheds light on Congress’s intent to include all of the section 237(a)(2)

deportable offenses, I observe that it states the following:

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

earliest.

H.R. Conf. Rep. No. 104-828, at 214 (1996) (emphasis added). This report

does not even reference inadmissible offenses, and I simply find nothing

here that suggests that a deportable offense must also have a comparable

ground of inadmissibility. There is no mention in the report of the phrase

“referred to in section 212(a)(2)” on which the majority has placed primary

emphasis in interpreting the statute.

Furthermore, when Congress previously enacted a provision restricting

both inadmissible and deportable aliens from establishing eligibility for

relief based solely on section 212(a)(2) offenses, it was clear in stating its

intention. Section 101(f)(3) of the Act, 8 U.S.C. § 1101(f)(3) (Supp. II

1996), provides that an alien cannot establish good moral character for the

required period if he or she is “a member of one or more of the classes of

persons, whether inadmissible or not, described in [certain specified] paragraphs . . . of section 212(a) of this Act . . . if the offense described therein,

for which such person was convicted or of which he admits the commission,

was committed during such period.” (Emphasis added.) Even though that

statute has perhaps most commonly been applied when determining eligibility for relief from deportation rather than exclusion, section 101(f)(3) is

clear in precluding relief by statute only when the criminal offense is one

described in section 212(a). See, e.g., former sections 244(a), (e) of the Act.

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Congress did not follow that approach here. Rather, section 240A(d)(1)

specifically refers to both deportable and inadmissible offenses. Had

Congress meant to limit the “stop time” rule to section 212(a)(2) offenses,

there would have been no need to go beyond the “referred to in section

212(a)(2)” language. The references to sections 237(a)(2) and (4) would be

rendered surplusage.

The statute we are construing here is markedly different from the

amendment to former section 212(c) that we addressed in Matter of

Fuentos-Campos, 21 I&N Dec. 905 (BIA 1997). See Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(d) 110

Stat. 1214, 1217 (“AEDPA”), amended by IIRIRA § 306(d), 110 Stat. at

3009-612. In Fuentos-Campos, we found that the failure of the AEDPA to

make any reference to excludability or inadmissibility in the amendments

restricting relief under section 212(c) of the Act meant that inadmissible

aliens were not subject to those restrictions.2 By way of contrast, section

240A(d)(1) specifically refers to both offenses that render an alien “inadmissible . . . under section 212(a)(2) or removable [(i.e., deportable)] . . .

under section 237(a)(2) or 237(a)(4).”

Finally, it is noteworthy that the AEDPA amendments to former section

212(c), replaced by section 240A(a) cancellation of removal, categorically

barred from relief aliens who are deportable for a firearms conviction.

Absent clear and persuasive evidence that Congress so intended, I would

not interpret section 240A(d)(1) as providing that same class of aliens

favored status when calculating the time requirements for cancellation of

removal.

I interpret section 240A(d)(1) as providing that when an alien has committed an offense that renders him or her inadmissible under section

212(a)(2) or deportable under sections 237(a)(2) or (4), that offense will

stop time from accruing for purposes of any form of relief to which section

240A(d)(1) applies. Because the respondent’s firearms offense indisputably

rendered him deportable under section 237(a)(2) of the Act and was committed before he had acquired 7 years of continuous residence, he is ineligible for section 240A(a) cancellation of removal. I would dismiss the

appeal.

2

The AEDPA amendment, as further amended by the IIRIRA, provided that “an alien

who is deportable by reason of having committed any criminal offense covered 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)” is barred from section 212(c) relief. AEDPA § 440(d),

amended by IIRIRA § 306(d) (emphasis added).

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