The BIA held that the stop-time rule that stops accrual of continuous physical presence or continuous residence for purposes of cancellation of removal is triggered upon service of a notice to appear (NTA) even if the NTA does not state the time or date of the removal hearing. Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011) (Miller, Malphrus, and Mullane, Board members). Board member Malphrus wrote the panel’s decision.
This case involved an LPR who was served an NTA that stated “To be set” instead of a particular date and time for a hearing. Matter of Camarillo, 25 I&N Dec. at 644. The immigration judge determined that the NTA had not been served for purposes of the cancellation stop-time rule.
The “stop-time” rule ends the period of continuous physical presence or continuous residence that is required for cancellation eligibility. INA § 240A(d)(1). It is triggered, according to the statutory text, “when the alien is served a notice to appear under section 239(a)….” INA § 240A(d)(1). Section 239(a) in turn provides that “written notice (in this section referred to as a ‘notice to appear’) shall be given in person to the alien…specifying the following:…(G)(i) The time and place at which the proceedings will be held,” among other requirements.
The IJ concluded that all the requirements listed in INA § 239(a), including the time and place of the hearing, must be provided to the noncitizen for the NTA to trigger the stop-time rule. That did not happen until almost two years later when the immigration court issued a notice of hearing informing the respondent of the actual date and time of her removal hearing. As such, the IJ concluded that the NTA did not trigger the stop-time rule until the notice of hearing was sent. Matter of Camarillo, 25 I&N Dec. at 645. This two-year wait would have provided Camarillo sufficient time in the United States to meet the seven years continuous residence requirement for cancellation eligibility. Matter of Camarillo, 25 I&N Dec. at 645.
The BIA disagreed. The primary purpose of the NTA service requirement, the panel explained, is to notify the respondent of the government’s intent to initiate removal proceedings; the lack of a date and time for a hearing does not affect the government’s effort to communicate that intent through serving the NTA. Matter of Camarillo, 25 I&N Dec. at 650. It is at the moment of service, the Board added, that Congress intended the continuous residence or physical presence to cease accumulating. Matter of Camarillo, 25 I&N Dec. at 650.
Accordingly, “[w]e hold that under section 240A(d)(1) of the Act, any period of continuousresidence or continuous physical presence of an alien applying for cancellationof removal under section 240A is deemed to end upon the service of a noticeto appear on the alien, even if the notice to appear does not include the dateand time of the initial hearing.” Matter of Camarillo, 25 I&N Dec. at 652.
As an aside, it’s interesting to note that the BIA explicitly characterized the stop-time rule statutory language as ambiguous, Matter of Camarillo, 25 I&N Dec. at 647, and its interpretation of this language as “a reasonable choice within a gap left open by Congress.” Matter of Camarillo, 25 I&N Dec. at 651. This, perhaps, is an attempt to sway federal courts that are asked to review the BIA’s interpretation. Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), a reviewing federal court must defer to an administrative agency’s reasonable interpretation of an ambiguous statute that is within its area of specialization—including the BIA’s interpretation of INA provisions.
The BIA’s effort, however, seems nothing more than amusing. I’m skeptical that a federal court would defer to the BIA’s characterization of an INA provision as ambiguous or its interpretation as reasonable. Perhaps we will have opportunity to test my skepticism soon as the case has reportedly been appealed to the Fifth Circuit.