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Court Grants Review of BIA Denial of Cancellation, Holds Findings Were Not Supported by Record and BIA Failed to Apply Appropriate Standard of Review

he Sixth Circuit determined the BIA erred in finding new evidence was previously available and that the BIA failed to consider hardship ground raised in the Motion to Reopen, instead offering a cursory analysis that didn’t allow for meaningful review. The court remanded the case to properly apply the law. The court also addressed petitioner’s argument that no jurisdiction was vested in the immigration judge, BIA, or court because the Notice to Appear failed to state the time and place of the hearing, holding that jurisdiction was vested and distinguishing the stop-time rule in Pereira.

Stop-Time Rule for Cancellation

Today, the BIA issued two precedent decisions addressing the issue of whether evidence that photographs and fingerprints were taken in conjunction with a noncitizen’s voluntary departure or return constitutes a formal, documented process sufficient to break continuous physical presence for purposes of establishing eligibility for cancellation of removal, where the noncitizen had the right to appear before an Immigration Judge but was not informed of that right. In the first decision, the BIA held that such evidence was not sufficient, in the absence of evidence that the noncitizen was informed of and waived the right to a hearing. In the second decision, the BIA found that this rule applies regardless of whether the encounter in which the noncitizen was photographed and fingerprinted occurred at or near the border.

Stop Time rule applies moment NTA is served

The Ninth Circuit upheld the Board of Immigration Appeals, holding that the failure of a Notice to Appear (NTA) to specify the date and location of a removal hearing has no effect on the stop-time rule. Accordingly, the court found that the petitioner, who had not accrued the requisite period of continuous physical presence by the time he was served with the NTA in his removal proceeding, was statutorily ineligible for cancellation of removal.

Physical Presence continues to accrue if NTA not served

The BIA sustained the respondent’s appeal and remanded, holding that a notice to appear (NTA) that was served but never resulted in removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration and Nationality Act.

CA2 on Notice and Stop-Time Rule Requirements

The court held that the notice requirements of the INA were satisfied by a combination of two notices, and that once sufficient notice is provided, the stop-time rule is triggered notwithstanding any defects in subsequent notices.

BIA Finds NTA Without Hearing Date Triggers “Stop-Time” Rule

The Board found that any period of continuous residence or continuous physical presence ends upon service of an NTA on the alien, even if the NTA does not include the date and time of the initial hearing.

BIA Applies Stop-Time Rule Where NTA Did Not Include Hearing Date/Time

The BIA held that the continuous residence/presence of an alien applying for cancellation ends under the stop-time rule upon service of an NTA, even if the NTA does not include the date and time of the initial hearing.

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