A “Tense” Decision

Santos-Reyes v. United States, 660 F.3d 196 (3d Cir. 2011). Under 8 U.S.C. §1229b(a), an alien who could otherwise be deported from the United States can have the deportation cancelled if the alien “has resided in the United States continuously for 7 years after having been admitted in any status.” That provision, however, is qualified by the “stop-time rule,” which states that “any period of continuous residence or continuous physical presence in the United States shall be deemed to end when the alien has committed an offense [listed elsewhere in the statute].” 8 U.S.C. §1229b(d)(1). The phrase “has committed an offense,” which is stated in the present-perfect tense, was at the center of this appeal.

According to Judge Nygaard’s opinion in this case, Ingrid Santos-Reyes was admitted to the United States as a conditional permanent resident on October 3, 1991. When she returned to the United States from a trip abroad in 2007, the Department of Homeland Security charged her with inadmissibility as an alien because she had been convicted in 1999 of a crime of moral turpitude, namely, receiving stolen property, criminal conspiracy, and criminal solicitation. The criminal conspiracy began on August 18, 1998 and continued through October 27, 1998.

An immigration judge and the Bureau of Immigration Appeals ruled that Santos-Reyes was barred by the stop-time rule, since the conspiracy began before she had resided in the United States for seven years. On appeal, Santos-Reyes sought cancellation of removal, arguing that there was no “date certain” on which she committed the crime because the statute refers to the date an alien “has committed” an offense, which she found ambiguous. She contended that the relevant date should have been October 31, 1998, the date on which she was arrested. As of that date, she would have resided in the United States for over seven years.

Judge Nygaard did not agree. Applying the de novo standard of review applicable to legal determinations, subject to the deference principles articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984), he rejected the idea that “Congress’ use of the word ‘commit’ in the present-perfect tense (“has committed”) transforms a word that is generally focused on the subject’s conduct into one that refers to the moment when the subject is criminally charged for the conduct.” The phrase “has committed” “means the stop-time rule is triggered either by an alien’s criminal conduct occurring on a particular date before the end of the seventh year of continuous residence, or conduct that runs up to the date when the seventh year of residency ends.” Accordingly, the panel affirmed the rulings below against Santos-Reyes.

This was a creative use of grammar rules to create a legal issue. It is not surprising, however, that Santos-Reyes did not succeed.