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.

Country of Refuge: Cancellation of Removal for Non-LPRs

Recently we began a series on the strengths and benefits of our immigration law and policy. Today we'll briefly touch upon Cancellation of Removal for Non-Lawful Permanent Residents (Non-LPRs).  Cancellation of Removal for LPRs will be discussed in a different post.

Under the Immigration and Nationality Act (INA), the Attorney General has discretion to grant various forms of relief from removal. One of these forms of relief is Cancellation of Removal for Non-LPRs under section 240A(b) of the INA. This section provides that a foreign national seeking cancellation of removal for non-permanent residents must establish four statutory requirements: 

1. Physical presence in the United States for a continuous period of ten years; 
2. Good good moral character during that period of time; 
3. No convictions for certain criminal offenses; and 
4. Exceptional and extremely unusual hardship to the applicant's spouse, parent, or child, who is a United States citizen or lawful permanent resident.

There are only three decisions published by the Board of Immigration Appeals (BIA) to guide adjudicators in deciding whether an applicant can demonstrate that a qualifying relative would suffer exceptional and extremely unusual hardship: Matter of Recinas, Matter of Andazola, and Matter of Monreal.  These cases will be discussed in detail in a different post under the heading of "hardships" and "waivers".

One can argue whether the standard to show eligibility under the Cancellation of Removal provisions is too high or whether more quotas should be made available, but to those that qualify - obtaining this benefit is literally a life-saver. I have been very fortunate in my years practicing immigration law to have assisted several clients to obtain their lawful permanent resident status through Cancellation of Removal.  Take for example the case of a foreign national in removal proceedings who has a seriously ill U.S. citizen child and has no other form of relief available. If this person is removed the child would not be able to obtain the medical care needed in their home country. Without the availability of Cancellation of Removal as a form of relief, many would be removed every year from the United States to face dire and extreme hardships.  Fortunately, thanks to our generous and humanitarian immigration provisions, qualifying applicants don't have to face such hardships.