BIA: NTA stops time for cancellation of removal only if it’s used to launch removal proceedings

The BIA recently returned to a critical and deceptively complicated part of cancellation of removal, the stop-time rule, with a fairly narrow but important decision. Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015).

Migrants are eligible for relief from removal if they can meet certain durational requirements, among other criteria. Lawful permanent residents must be able to show that they have continuously resided in the United States for at least seven years. INA § 240A(a)(2). Other migrants must show that they have been continuously physically present in the United States for at least ten years. INA § 240A(b)(1)(A).

Both requirements are subject to the stop-time rule found at INA § 240A(d)(1). As I explain in my book Crimmigration Law (available here), “At its simplest, the stop-time rule identifies the moment at which the continuous residence required to receive cancellation for LPRs and the continuous physical presence required to obtain cancellation for non-LPRs ends.” It is, therefore, a highly important feature of cancellation eligibility.

In Matter of Ordaz, the BIA was faced with a situation in which a migrant who is not an LPR entered the United States in 1990 and was served with an NTA in 1998. The NTA, however, was never filed with the immigration court, thus removal proceedings never started. 26 I&N Dec. at 637-38. The immigration judge took the position that the NTA’s 1998 service date triggered the stop-time rule, thus the migrant didn’t accrue the required ten years continuous physical presence. Id. at 638.

The Board disagreed. It was not persuaded by the federal government’s argument that the stop time rule is triggered by service of any NTA because the statute references service of “a” NTA as opposed to “the” NTA that is the basis of the removal proceedings. Id. at 639. Such an interpretation, the Board concluded, would allow the stop-time rule to be triggered by an invalid NTA. Congress could not have intended that, the Board determined. Id. at 640.

Consequently, the Board held that an NTA does not trigger the stop-time rule if it was served on a migrant “but was never used to commence proceedings.” Id. at 643. A narrow, but important outcome.