Criminal Defense of Immigrants

In order to be eligible for any form of cancellation of removal, except NACARA Special Rule Cancellation,[73] a noncitizen must show[74] that s/he has been continuously present in the United States for a specified period of time[75] prior to the date of commission of the offense[76] or prior to the date of service of an NTA or OSC,[77] whichever comes first.[78]

[73] See § 24.12, infra; 8 C.F.R. § 240.64(b).

[74] See, e.g., Santana-Albarran v. Ashcroft, 393 F.3d 699 (6th Cir. Jan. 10, 2005) (noncitizen failed to establish that he had been physically present in the U.S. for a continuous 10-year period).

[75] For purposes of cancellation of removal residence requirement, a 10-year period that starts on January 1, 2000, ends on December 31, 2010.  Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. Sept. 9, 2004).

[76] Reid v. Gonzales, 478 F.3d 510 (2d Cir. Feb. 28, 2007) (BIA was correct in concluding that stop-time rule is triggered upon commission of listed offense, not conviction).

[77] The service of an Order to Show Cause (used to initiate proceedings prior to April 1, 1997) also stops the clock.  Matter of Mendoza-Sandino, 22 I. & N. Dec. 1263 (BIA 2000).  However, service of an NTA or OSC does not stop the clock if that document is in relation to a separate, prior immigration proceeding. Matter of Cisneros-Gonzalez, 23 I. & N. Dec. 668 (BIA 2004) (non-LPR eligible for cancellation where 10 years had passed since illegal re-entry following deportation). 

[78] INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).  The BIA has indicated that this rule applies only to the accrual of continuous presence, and not the other requirements for cancellation eligibility, reasserting that an application for relief “is a continuing one” and unless explicitly stated otherwise, the various requirements for eligibility need not be met until the time for a final decision on relief.  Matter of Bautista-Gomez, 23 I. & N. Dec. 893 (BIA 2006).