By Sarah Flinn
A recent decision by the U.S. Court of Appeals for the Ninth Circuit followed the trend set by the Second, Fourth, Sixth, and Seventh Circuits in determining that continuous physical presence for purposes of cancellation of removal stops accruing when the petitioner receives a Notice to Appear (NTA), regardless of whether the notice includes a date and location for the removal hearing. Moscoso-Castellanos v. Lynch, No. 12-72693, 2015 WL 5933279, at *3 (9th Cir. Oct. 13, 2015).
Jorge Mario Moscoso-Castellanos, a native and citizen of Guatemala, arrived in the United States without authorization around April 1997 and was served with an NTA on April 7, 2005. Id. at *1. The NTA did not specify a date or time for his removal hearing, but simply stated that the hearing would be held “on a date to be set at a time to be set.” Id. Mr. Moscoso-Castellanos received a hearing notice (but not a corrected NTA) on April 14, 2005 that specified the date and time of his hearing, April 20, 2015. Id. Initially Mr. Moscoso-Castellanos filed an application for adjustment of status as a derivative beneficiary of his wife but after being found removable, Mr. Moscoso-Castellanos filed an application for cancellation of removal on August 24, 2011. Id. Mr. Moscoso-Castellanos argues that because a corrected NTA (one that was complete and included the date and time of the hearing) was not served on him until 2008, he continued to accrue continuous physical presence until 2008 or possibly 2011, when he filed for cancellation of removal.
The immigration judge concluded that Mr. Moscoso-Castellanos was statutorily ineligible for cancellation of removal because he was physically present for only eight years (having arrived in April 1997) when he received the Notice to Appear (in April 2005). Id. The Board of Immigration Appeals (BIA) affirmed on appeal. Id. Service of the NTA triggers the so-called stop-time rule which stops the accrual of a migrant’s period of continuous physical presence on the date of service. See INA § 240A(d)(1)(A). The BIA relied on its decision in In re Camarillo, 25 I. & N. Dec. 644 (B.I.A. 2011) (discussed on this blog here), in affirming the immigration judge, however, Mr. Moscoso-Castellanos argues that In re Camarillo does not control his case and instead relies on the Ninth Circuit’s decision in Garcia-Ramirez v. Gonzales, 423 F.3d 935 (9th Cir. 2005). Id. In Garcia-Ramirez, the Ninth Circuit held that a petitioner’s accrual of physical presence did not stop until the petitioner received a second NTA specifying the date and location of the removal hearing. Id.
The main issue in Mr. Moscoso-Castellanos’s case is whether the Ninth Circuit is bound by its decision in Garcia-Ramirez or whether the court should defer to the BIA’s interpretation of the stop-time rule, INA § 240A(d)(1). Applying a fixture of administrative law, the Ninth Circuit concluded that it was required to defer to the BIA’s interpretation of the statute. Id. Courts follow a two-step analysis to determine whether deference is due: first the court must determine whether the statute is ambiguous, and second, if the statute is silent or ambiguous, the court must defer to the agency’s reasonable interpretation. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). In Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 984-85 (2005), the Supreme Court made it clear that federal courts must defer to an agency’s reasonable interpretation of an ambiguous statute even if the agency’s interpretation conflicts with a previous binding interpretation of the same provision.
INA § 240A(d)(1) (the stop-time rule) states that “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) of this title.” INA § 239(a) provides a list of statutory requirements to be specified in the NTA sent to a migrant to initiate the removal proceedings, including the date and location of the removal hearing. Moscoso-Castellanos, 2015 WL 5933279, at *2. The Ninth Circuit concluded that there are three plausible interpretations of the stop-time rule statute: 1) the NTA must be fully compliant with the listed requirements in order to trigger the stop-time rule; 2) the statute is merely definitional and therefore does not impose any substantive requirements for the stop-time rule to be triggered; and 3) the NTA in combination with any other documents meets the requirements and therefore triggers the rule. Id. The Ninth Circuit’s determination that there are multiple interpretations of INA § 240A(d)(1) illustrates its conclusion that the statute is ambiguous and that deference must be accorded to the agency’s reasonable interpretation. Id.
The BIA provided five separate reasons to support its interpretation of the statute. Id. It first noted that § 239(a) is partly definitional and because INA § 240A(d)(1) references the entire definitional section of § 239(a), but does not include a reference to a specific part of the statute, the cross-reference is therefore to all definitions in INA § 239(a), despite the fact that the statutory requirements of the NTA only appear in § 239(a)(1). Id. Additionally, the BIA cites government regulation 8 C.F.R. § 1003.18(b) which requires that the time, place, and date of an initial removal hearing be provided only “where practicable.” Id. Third, the BIA highlighted that the immigration court is the entity responsible for scheduling initial removal hearings. Id. The BIA also referenced the legislative history which provided evidence that Congress intended the commencement of removal proceedings to break the continuous physical presence. Id. at *3. The BIA’s final point emphasized that the primary purpose of the NTA is to advise an individual that the government intends to have him/her removed from the country and that the date and time of the hearing are not necessary for that intention to be conveyed. Id.
The Ninth Circuit concluded that the BIA’s interpretation of INA § 240A(d)(1) was reasonable and therefore deferred to the interpretation that Mr. Moscoso-Castellanos’s continuous physical presence stopped accruing on April 7, 2005. Because Mr. Moscoso-Castellanos had only accrued eight years of continuous physical presence in the United States when he was served with the NTA, he was statutorily ineligible for cancellation of removal and his petition was denied. Id.
Sarah Flinn is a current 2L student at the University of Denver Sturm College of Law, focusing on Immigration and Asylum Law. She recently completed an externship with the Denver District Attorney’s Family Violence Unit and will be working with Rocky Mountain Immigration Advocacy Network in the spring.
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