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Interim Decision #3734

Matter of Judith Elma CAMARILLO, Respondent

Decided December 2, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Under the “stop-time rule” at section 240A(d)(1) of the Immigration and Nationality Act,

8 U.S.C. § 1229b(d)(1) (2006), any period of continuous residence or continuous physical

presence of an alien applying for cancellation of removal under section 240A is deemed

to end upon the service of a notice to appear on the alien, even if the notice to appear does

not include the date and time of the initial hearing.

FOR RESPONDENT: Maria Estela Garcia-Yzaguirre, Esquire, Brownsville, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Delia Irene Gonzalez, Assistant

Chief Counsel

BEFORE: Board Panel: MILLER, MALPHRUS, and MULLANE, Board Members.

MALPHRUS, Board Member:

In a decision dated May 5, 2009, an Immigration Judge found the

respondent removable and granted her application for cancellation of removal

under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C.

§ 1229b(a) (2006). The Department of Homeland Security (“DHS”) has

appealed from that decision. The appeal will be sustained and the record will

be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guatemala who has been

a lawful permanent resident since 2000. On August 29, 2005, she was

personally served a Notice to Appear (Form I-862), which included the phrase

“To be set” in the space provided for the date and time of the hearing. The

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Interim Decision #3734

Notice to Appear was later filed with the Harlingen Immigration Court, which

issued a notice of hearing on November 9, 2007.1

In removal proceedings, the Immigration Judge found the respondent

to be removable as charged for alien smuggling.2 The Immigration Judge

determined that the respondent was admitted to the United States when she

adjusted to lawful permanent resident status on August 7, 2000, and he granted

her application for cancellation of removal, concluding that she had accrued

the requisite 7 years of continuous residence to establish eligibility for that

relief.3 According to the Immigration Judge, the Notice to Appear was not

“served” for purposes of terminating the respondent’s period of residence

under section 240A(a)(2) of the Act until the Immigration Court’s issuance

of the notice of hearing informing her of the date and time for her appearance.

The DHS has appealed, arguing that the respondent is not statutorily eligible

for cancellation because section 240A(d)(1) of the Act provides that any period

of continuous residence ends “when the alien is served a notice to appear.”

Thus the DHS contends that even though the Notice to Appear did not specify

a date and time of the hearing, the respondent’s continuous residence ended

when it was served in person on August 29, 2005.4 We agree with the DHS.

1

The DHS filed the respondent’s Notice to Appear with the Immigration Court

on November 2, 2007. There is no information in the record regarding the reason for the

lapse between the service of the Notice to Appear and its filing with the Immigration Court,

although we recognize that the case originated in a high volume border district. In any

event, the best practice is for a notice to appear to be filed with the Immigration Court

as soon as it is practical to do so under the circumstances. Cf. 8 C.F.R. § 1003.18(b) (2011)

(providing that a notice to appear shall include the time, place, and date of an initial removal

only “where practicable”).

2

The respondent was found removable as an alien who is inadmissible under section

212(a)(6)(E)(i) of the Act, 8 U.S.C. § 1182(a)(6)(E)(i) (2006), because she knowingly

encouraged, induced, assisted, abetted, or aided any other alien to try to enter the

United States. This charge arose when the respondent sought admission to the United States

as a returning lawful permanent resident on August 29, 2005. At that time, she was charged

with attempting to smuggle aliens into the United States, but she was paroled into the

country to appear in removal proceedings. During her hearing, the DHS presented

conviction records showing that the respondent pled guilty on August 31, 2005,

to knowingly and willfully aiding and abetting two aliens to attempt to gain illegal entry into

the United States in violation of 18 U.S.C. § 2 (2000) and section 275(a)(3) of the Act,

8 U.S.C. § 1325(a)(3) (2000).

3

The respondent’s conviction for alien smuggling did not make her ineligible for

cancellation of removal because the offense is not an aggravated felony. See section

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

4

There is no dispute as to when the respondent received both the Notice to Appear and the

notice of hearing.

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II. ANALYSIS

A.

Section 240A(d)(1) of the Act, which sets forth the provision commonly

referred to as the “stop-time” rule, states in pertinent part:

[A]ny period of continuous residence or continuous physical presence in the

United States shall be deemed to end (A) except in the case of an alien who applies

for cancellation of removal under subsection (b)(2), when the alien is served a notice

to appear under section 239(a) [of the Act] . . . .

Section 239(a)(1) of the Act, 8 U.S.C. § 1229(a)(1) (2006), provides,

in pertinent part:

In removal proceedings under section 240, written notice (in this section referred

to as a “notice to appear”) shall be given . . . to the alien . . . specifying the following:

(A) The nature of the proceedings against the alien.

....

(D) The charges against the alien, and the statutory provisions alleged to have

been violated.

....

(G) The time and place at which the proceedings will be held.

We must interpret these provisions to determine whether the “stop-time”

rule applies at the time a notice to appear is served on the alien, even if it does

not include all of the information listed in section 239(a)(1) of the Act.

B.

In applying settled principles of statutory construction, we look first to the

particular statutory language at issue. K Mart Corp. v. Cartier, Inc., 486 U.S.

281, 291 (1988). We must initially decide whether the language at issue has

a plain and unambiguous meaning. Robinson v. Shell Oil Co., 519 U.S. 337,

340 (1997). Issues regarding whether the language is plain and unambiguous

are “determined by reference to the language itself, the specific context

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

as a whole.” Id. at 341; see also, e.g., Matter of J-B-M- & S-M-, 24 I&N Dec.

208 (BIA 2007).

Furthermore, when interpreting a statute, a particular word or phrase should

not be examined in isolation. Food and Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 132-33 (2000). Instead, we are charged with

reading the words “in their context and with a view to their place in the overall

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Interim Decision #3734

statutory scheme.” Id. at 133 (quoting Davis v. Michigan Dep’t of Treasury,

489 U.S. 803, 809 (1989)) (internal quotation mark omitted). We must

“interpret the statute ‘as a symmetrical and coherent regulatory scheme’ and

‘fit, if possible, all parts into an harmonious whole.’” Id. (citation omitted)

(quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995), and FTC

v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)); see also, e.g., Matter

of C-T-L-, 25 I&N Dec. 341, 345 (BIA 2010).

C.

The Immigration Judge reasoned, and the respondent argues, that the

reference in section 240A(d)(1) of the Act to an alien being “served a notice

to appear under section 239(a)” mandates that a notice to appear must comply

with all of the provisions of section 239(a)(1) in order for its service to “stop

time” toward accrual of continuous residence. One provision of section

239(a)(1) states that a notice to appear must specify the “time and place

at which the proceedings will be held.” Section 239(a)(1)(G) of the Act.

Thus, the Immigration Judge concluded that the “stop-time” rule did not apply

until the respondent was sent the notice of hearing specifying the date and time

of her hearing.

An equally plausible reading, however, is that the reference in section

240A(d)(1) to a notice to appear “under section 239(a)” is simply definitional,

that is, it indicates what the words “notice to appear” refer to. Read this way,

section 240A(d)(1) merely specifies the document the DHS must serve on the

alien to trigger the “stop-time” rule and does not impose substantive

requirements for a notice to appear to be effective in order for that trigger

to occur. Thus, the statutory language at issue is ambiguous on this point.

We agree with the DHS that the key phrase is “served a notice to appear”

and that the best reading of the statute as a whole is that Congress intended the

phrase “under section 239(a)” after “notice to appear” to specify the document

the DHS must serve on the alien to trigger the “stop-time” rule. Section 239(a)

is the primary reference in the Act to the notice to appear, and it defines “the

written notice” that is given to the alien to initiate removal proceedings, which

it says is “referred to as a ‘notice to appear.’”

Further support for the definitional reading of the “stop-time” rule is the

breadth of its reference to the entirety of “section 239(a).” That section

encompasses more than just section 239(a)(1), and is, in fact, subdivided into

several paragraphs. Section 239(a)(1) deals with notice of the date and time

of the hearing, matters that are often subject to change. Section 239(a)(2)

clearly accounts for this reality, outlining the procedures to follow when notice

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Interim Decision #3734

must be given of such changes.5 The language of section 239(a)(2) indicates

that Congress envisioned that circumstances beyond the control of the DHS

would require a change in the hearing date and specifically provided that such

notification could occur after the issuance of the notice to appear.

The regulation at 8 C.F.R. § 1003.18(b) (2011) further supports this reading

because it expressly provides that the time, place, and date of an initial

removal hearing shall be provided in the notice to appear only “where

practicable.” If the date and time are not set when the notice to appear

is issued, the Immigration Court is responsible for scheduling the hearing and

providing notice regarding the time, place, and date of the initial hearing. Id.

For various reasons, it is often not practical to include the date and time of the

initial removal hearing on the notice to appear. See Dababneh v. Gonzales,

471 F.3d 806, 809 (7th Cir. 2006) (“DHS frequently serves [notices to appear]

where there is no immediate access to docketing information.”)

According to the Immigration Judge and the respondent, two documents, the

notice to appear and the notice of hearing, combine together to comprise the

requisite service of a notice to appear under section 239(a) of the Act for

purposes of the “stop-time” rule. No authority, however, supports the

contention that a notice of hearing issued by the Immigration Court

is a constituent part of a notice to appear, the charging document issued only

by the DHS. To the contrary, the date of service of a notice to appear is not

ineffective simply because the document does not include the specific date and

time of the initial hearing. See Popa v. Holder, 571 F.3d 890, 895-96 (9th Cir.

2009) (holding, in the context of an in absentia order, that a notice to appear

which states that a date and time will be set later is not defective as long

as a notice of the hearing is later sent to the alien); see also Gomez-Palacios

v. Holder, 560 F.3d 354, 359 (5th Cir. 2009); Haider v. Gonzales, 438 F.3d

902, 907 (8th Cir. 2006).

The Immigration Judge relied in part on Dababneh v. Gonzales, 471 F.3d

at 810, which stated that the “stop-time” rule cut off the respondent’s accrual

of physical presence once the DHS served him with both the notice to appear

and the notice of hearing. However, the court did not decide the issue before

us because the respondent was ineligible for cancellation of removal regardless

of whether the applicable date under the “stop-time” rule was the date

of service of the notice to appear or the notice of hearing. Id. The holding

in Dababneh was that a notice to appear is not defective if it does not include

the date and time of the hearing, so the Immigration Court did not lack

5

Also, there is an exception to the notice requirements under section 239(a) if the alien has

failed to provide an address. See section 240(b)(5)(B) of the Act, 8 U.S.C. § 1229a(b)(5)(B)

(2006).

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jurisdiction to commence proceedings based on a notice to appear that did not

include such information, as long as it was provided to the alien later. Id.

at 808-09.6

D.

The legislative history behind the “stop-time” rule, which was enacted into

law by section 304(a)(3) of the Illegal Immigration Reform and Immigrant

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

3009-546, 3009-595 (“IIRIRA”), further supports our interpretation of this

statute. The legislative history shows that the “stop-time” rule was enacted

to address “perceived abuses arising from the prior practice of allowing

periods of continuous physical presence to accrue after service of a charging

document.” Matter of Cisneros, 23 I&N Dec. 668, 670 (BIA 2004).

By enacting the rule, Congress intended to prevent aliens from being able

“to ‘buy time,’ during which they could acquire a period of continuous

presence that would qualify them for forms of relief that were unavailable

to them when proceedings were initiated.” Id. (quoting Report of the

Committee on the Judiciary, House of Representatives, H.R. Rep. No. 104-469

(1996)).

We find further guidance in a committee explanatory memorandum included

in the Congressional Record, which discussed the amended transitional rule

on physical presence for those in proceedings as of the effective date of the

IIRIRA. We relied on this document as authoritative legislative history

in Matter of Nolasco, 22 I&N Dec. 632, 640-41 (BIA 1999). In explaining

that the “stop-time” rule barred additional time from accruing after receipt

of either a notice to appear or an order to show cause, the memorandum stated:

Under the rules in effect before [enactment of the “stop-time” rule], [an] otherwise

eligible person could qualify for suspension of deportation if he or she had been

6

In a footnote in Garcia-Ramirez v. Gonzales, 423 F.3d 935, 937 n.3 (9th Cir. 2005)

(per curiam), the United States Court of Appeals for the Ninth Circuit commented that

where a notice to appear failed to specify the hearing date or location, accrual of physical

presence ended upon service of a proper hearing notice. However, this comment was

not accompanied by any analysis of the laws and regulations governing the issuance

or service of a notice to appear. Nor did it address the holding of the case, which concerned

the retroactive application of the 90/180-day rule under section 240A(d)(2) of the

Act. Furthermore, the court’s holding in a more recent decision, in which footnote

3 of Garcia-Ramirez was not addressed, arrived at a different conclusion. Popa v. Holder,

571 F.3d at 895-96. Therefore, the comment in footnote 3 appears to be dicta, and we read

Popa as expressing the Ninth Circuit’s view on this issue.

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Interim Decision #3734

continuously physically present in the United States for seven years, regardless

of whether or when the Immigration and Naturalization Service had initiated

deportation proceedings against the person through the issuance of an order to show

cause (“OSC”) to that person.

Id. at 640 (quoting 143 Cong. Rec. S12265, S12266 (daily ed. Nov. 9, 1997),

at 1997 WL 693186). This legislative history demonstrates that Congress

intended for the “stop-time” rule to break an alien’s continuous residence

or physical presence in the United States when the Immigration and

Naturalization Service (now the DHS) serves the charging document.

Removal proceedings are commenced by the filing of a notice to appear

with the Immigration Court. 8 C.F.R. § 1239.1(a) (2011). However, 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, and

the issue in dispute in this case involves when the notice to appear is effective

to terminate the accrual of continuous residence. The legislative history

indicates that the reference in section 240A(d)(1) of the Act to section 239(a)

is merely to identify the document that the DHS must serve on the respondent

to effect the “stop-time” rule. A primary purpose of a notice to appear

is to inform an alien that the Government intends to have him or her removed

from the country, but the inclusion of the date and time of the hearing is not

necessary for the Government’s intention in this regard to be conveyed.

As noted previously, it is the Immigration Court that sends the notice

of hearing if the date and time of the hearing is not included on the notice

to appear, and there is no reason to conclude that Congress would have

expected that scheduling delays in the Immigration Court resulting from

pending caseloads or other administrative issues would affect when an alien’s

continuous residence or physical presence ends for purposes of eligibility for

relief from removal. Further, another reason an Immigration Court’s

notification of a hearing date does not “serve” a notice to appear is that neither

the Immigration Court nor the Immigration Judge has been delegated the

authority to serve a notice to appear. See 8 C.F.R. §§ 235.6(a), 239.1(a),

1235.6(a) (2011). Rather, the power to serve a notice to appear rests solely

within the purview of the DHS. 8 C.F.R. §§ 2.1, 239.1(a)(41) (2011); see also

Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 522-23 (BIA 2011); Matter

of Bahta, 22 I&N Dec. 1381 (BIA 2000).7

7

If the respondent is correct that all of the provisions of section 239(a)(1) of the Act must

be met for a notice to appear to be effective, then the DHS’s service of a Form I-261

(Additional Charges of Removability) substituting charges different from those on the

(continued...)

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E.

Having considered the language and design of the statute, the applicable

regulations, and the congressional intent behind the provisions of section

240A(d)(1) of the Act, we conclude that the DHS’s service of a notice

to appear triggers the “stop-time” rule, regardless of whether the date and time

of the hearing have been included in the document. We do not read section

240A(d)(1) as requiring the service of both the notice to appear and the notice

of hearing to activate the “stop-time” rule. The key date for purposes of the

“stop-time” rule is the date when the alien is served the notice to appear.

“[Section 240A(d)(1)(A) of the Act] provides that the accrual of continuous

physical presence is deemed to end when an alien is served a notice

to appear.” Matter of Avilez, 23 I&N Dec. 799, 801 (BIA 2005); see also

Arenas-Yepes v. Gonzales, 421 F.3d 111, 115 (2d Cir. 2005) (“Under the

so-called ‘stop-time’ provision, the period of time to be counted towards the

determination of whether an alien has met the continuous physical presence

requirement necessary to be eligible for relief from deportation (or removal)

ends when the alien is served with a charging document.”) (holding that the

imposition of the “stop-time” rule was not impermissibly retroactive).

While the relevant statutory language of the “stop-time” rule at section

240A(d)(1) of the Act is ambiguous, our application represents, at a minimum,

a reasonable choice within a gap left open by Congress. Chevron, U.S.A., Inc.

v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866 (1984). We adopt this

approach as a matter within our adjudicative authority and administrative

judgment. Id. at 843-44; see also Negusie v. Holder, 555 U.S. 511, 523

(2009); INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002).

F.

The respondent also argues on appeal that the Immigration Judge

erred in finding that she was admitted to the United States “in any status”

(...continued)

original notice to appear would presumably start the accrual of time anew for purposes

of the “stop-time” rule. This is so because only the I-261, not the original notice to appear,

would have included the “charges against the alien,” which is one of the requirements listed

in section 239(a)(1) of the Act. See section 239(a)(1)(D) of the Act. However, given that

section 240A(d)(1) refers to an alien being “served a notice to appear,” there is no reason

to conclude that Congress would have intended an alien to be able to accrue time between

service of the notice to appear and service of an I-261, which may occur much later and,

in fact, “[a]t any time during the proceeding.” 8 C.F.R. § 1240.10(e) (2011).

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on August 7, 2000. Section 240A(a)(2) of the Act. She contends that she was

admitted in 1996 when she was paroled into the country on humanitarian

grounds, based on her pending application for adjustment of status, and was

provided work authorization and a travel document. Thus, the respondent

claims that she has established the requisite 7 years of continuous residence

under section 240A(a)(2) of the Act, regardless of how the “stop-time” rule

is applied. We do not agree.

The respondent’s parole does not constitute an “admission.” Section

212(d)(5)(A) of the Act, 8 U.S.C. §§ 1182(d)(5)(A) (2006), expressly provides

that an alien who is paroled for humanitarian reasons is not regarded as having

been admitted. See also sections 101(a)(13)(A), (B) of the Act, 8 U.S.C.

§§ 1101(a)(13)(A), (B) (2006); Akhtar v. Gonzales, 450 F.3d 587, 590-92,

reh’g granted on other grounds, 461 F.3d 584 (5th Cir. 2006); Altamirano

v. Gonzales, 427 F.3d 586, 590-91 (9th Cir. 2005); Matter of G-A-C-, 22 I&N

Dec. 83, 87, 89 (BIA 1998). Thus, the Immigration Judge properly determined

that the respondent’s actual admission “in any status” for purposes of section

240A(a)(2) of the Act was on August 7, 2000. When the respondent’s Notice

to Appear was served on August 29, 2005, it ended her continuous residence

in the United States and rendered her ineligible for cancellation of removal

under section 240A(a) of the Act.8

III. CONCLUSION

We hold that under section 240A(d)(1) of the Act, any period of continuous

residence or continuous physical presence of an alien applying for cancellation

of removal under section 240A is deemed to end upon the service of a notice

to appear on the alien, even if the notice to appear does not include the date

and time of the initial hearing. The respondent is therefore not eligible for

cancellation of removal. Accordingly, the DHS’s appeal will be sustained and

the record will be remanded to give the respondent an opportunity to apply for

any other relief from removal for which she may be eligible.

ORDER: The appeal of the Department of Homeland Security is sustained.

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.

8

The respondent is also ineligible for cancellation of removal under section 240A(b) of the

Act. She has not met the 10-year continuous physical presence requirement because she

entered the United States in 1996 and her Notice to Appear was issued in 2005. Section

240A(b)(1)(A) of the Act.

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