The Board of Immigration Appeals (BIA) has issued a precdent decision relating to the "stop-time" rule as it applies to applicants for cancellation of removal.
The BIA ruled that once an alien has been convicted of an offense that stops the accrual of the 7-year period of continuous residence required for cancellation of removal under INA §§ 240A(a) and 240A(d)(1), residence does not restart should the alien depart and subsequently return to the United States. See Matter of Michael Alexander NELSON, 25 I&N Dec. 410 (BIA 2011)
The case involves an individual who first obtained his Green Card in 1994. On April 9, 1999, he was convicted of possession of marijuana in violation of section 221.25 of the New York Penal Law. The offense was committed on February 20, 1999. This stopped time. He was also convicted of two other controlled substance violations in New Jersey on May 6, 2008. On November 26, 2008, immigration court proceedings were instituted charging him removal under INA §§ 237(a)(2)(A)(iii) and (B)(i), as an alien convicted of an aggravated felony and a controlled substance violation. On September 8, 2009, the Department issued additional charges of removal adding the respondent’s 1999 conviction.
The Immigration Judge ruled that the respondent’s 2008 convictions were not final for immigration purposes because they were on direct appeal in New Jersey, but determined that the respondent was nonetheless removable under INA § 237(a)(2)(B)(i) because of his 1999 conviction.
The Immigration Judge further denied the respondent’s application for cancellation of removal finding that he failed to establish the requisite 7 years of continuous residence, because continuous residence ended in 1999 when he committed the drug offense that rendered him removable. In so doing, the Court ruled that a new period of continuous residence does not start if an individual departs the United States and subsequently returns.
The Board agreed finding that an individual's subsequent reentry does not restart the clock when an alien departs and reenters the United States following the commission of a removable offense.
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