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Board of Immigration Appeal’s new ruling on “Stop Time” rule

Board of Immigration Appeal’s new ruling on “Stop Time” rule

11 On July 24, 2015, the BIA in the case of Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015) held that 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 INA.

According to the “stop-time” rule, which is applicable to cancellation of removal under sections 240A(a) and (b)(1), “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 the Act, 8 U.S.C. § 1229(a) (2012)].”

The Immigration Judge ruled that pursuant to the “stop-time” rule in section 240A(d)(1), the respondent’s period of continuous physical presence was not terminated when he was served with the 1998 notice to appear. Pursuant to this, the reasoning given by BIA was “affording “stop-time” effect to “any” notice to appear, regardless of whether proceedings were ever commenced on that basis, would potentially render an alien ineligible for relief on the basis of a charging document that was invalid or otherwise insufficient to support a removal charge as issued. And if proceedings were never commenced, the alien would not have the opportunity to contest, or require the DHS to prove, the allegations and charges contained in the notice to appear.”

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