Thursday, February 17, 2011

Matter of Nelson: Continuous residence clock for Cancellation of Removal not reset by alien's departure and reentry - absent waiver of inadmissibility for conviction.

In Matter of Nelson, 25 I&N Dec. 410 (BIA 2011), the Board of Immigration Appeals (BIA) addressed the question of the “stop-time” rule under section 240A(d)(1) of the Immigration and Nationality Act (INA).  More specifically, the BIA addressed the issue of whether the clock can be reset by an alien’s departure from, and reentry to, the United States after a conviction for a crime that would otherwise stop the accrual of continuous residence for purposes of determining eligibility for cancellation of removal under INA section 240A(a).

Section 240A(d)(1), which sets forth the “stop-time” rule, provides in pertinent part:
Termination of Continuous Period. For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) . . . when the alien is served a notice to appear under section 239(a), or (B) 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.
The BIA held in this case that continuous residence cannot be restarted absent a waiver of inadmissibility in regard to the conviction. That is, once a foreign national has been convicted of an offense that stops the accrual of the 7-year period of continuous residence required for cancellation of removal, INA section 240A(d)(1) does not permit such residence to restart simply because the alien has departed from, and returned to, the United States.

In this case the respondent, who is from Jamaica, was admitted to the United States as a lawful permanent resident in 1994.  In 1999 he was convicted of possession of marijuana in New York. In 2000 he visited Canada for two days and returned to the United States. In removal proceedings the respondent applied for Cancellation of Removal. The Immigration Judge denied the respondent’s application for cancellation of removal under INA section 240A(a) because he failed to establish the requisite 7 years of continuous residence. Specifically, the Immigration Judge found that the respondent was admitted in 1994 and that under section 240A(d)(1) of the Act, his period of continuous residence ended in 1999 when he committed the drug offense that rendered him removable.

The BIA agreed with the Immigration Judge’s conclusion that under INA section 240A(d)(1), the period of time the respondent was in the United States after his conviction and subsequent reentry cannot be counted toward the accrual of the 7 years of continuous residence required for cancellation of removal, since the clock does not start anew when the alien departs and reenters the United States following the commission of a triggering offense.