Ten-year Cancellation of Removal is a form of immigration relief available to someone who is undocumented and meets certain eligibility requirements including having accrued 10 years’ continuous physical presence in the United States. In cases where the individual was served with a Notice to Appear (NTA) that is not-deficient (meaning, it contained information identifying an actual date, time, and location of the first hearing), the agency’s service of the NTA will stop the counting of time for purposes of continuous physical presence. This means that only those individuals who had accumulated 10 years’ continuous physical presence before receipt of the NTA would be eligible for Cancellation of Removal.
The reality is that (until recently) very few NTAs contained the required information. Instead, the agency indicated that the date, place, and time were “To Be Set.” Earlier this year, the 10th Circuit held in Banuelos Galviz v. Barr that such NTAs were insufficient to trigger the stop time rule and that this deficiency could not be cured by the subsequent issuance of a Notice of Hearing. In practice, this means that individuals who fell short of accumulating the required 10 years before their receipt of a (deficient) NTA would continue to accrue continuous physical presence through the pendency of their case. For many, this would allow them to become eligible for 10-year cancellation of removal when before they likely would not have been eligible for relief.
This interpretation is consistent with the Bureau of Immigration Appeals (BIA) long history holding that applications for cancellation of removal are continuing through the date of the final administrative decision. See, e.g., Matter of Castro, 19 I&N Dec. 692 (BIA 1988); Matter of Garcia, 24 I&N Dec. 179 (BIA 2007); Matter of Ortega Cabrera, 23 I&N Dec. 793 (BIA 2005). Under BIA precedent, the 10 years is calculated backwards from the date of final administrative decision by either the Immigration Judge or the BIA (on appeal).
Recently, however, the 10th Circuit Court of Appeals issued two unpublished decisions that could significantly alter the calculation of the 10-year period for those individuals who are in removal proceedings after being served with a deficient NTA. The cases are Reyes-Luevanos v. Barr, Case No. 19-9545, and Acosta-Pena v. Barr, Case No. 19-9557. In both cases, the court interpreted the period of continuous physical presence to be counted backwards from the period immediately preceding the date of such application, based on the “plain language” of the statute.
In reading the statute, found at 8 U.S.C. § 1229b(b)(1), the court assumed without engaging in any analysis that the language was easily understood at face value. However, as with many of our nation’s immigration laws, this statute is ambiguous and its meaning cannot be easily understood by a cursory reading of the text. For example, for the 10th Circuit, the operative language from the statue is apparently the phrase “immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(1). In reaching its decision, the court assumed that “the date of such application” is a date, fixed in time, where the applicant had submitted an application for cancellation of removal (“42B”) to the court. However, the lifecycle of a 42B application is not a linear process with the immigration court, as is, for example, a filing made through PACER (the online service where court cases are filed with the Federal Appellate Courts, such as the 10th Circuit). In immigration court, multiple agencies are involved in the process of filing a 42B application.
To clarify, the “date of such application” could in fact be multiple dates, for applications are “filed” first with the Texas Service Center (to pay the filing fee; money the immigration court cannot accept); and thereafter submitted to the immigration court with proof of the fee payment; and then much later (perhaps years later) renewed with the immigration court at the client’s individual hearing where the immigration judge finally rules on the merits of the application. The 10th Circuit’s recent decisions do not address these unique circumstances in immigration court proceedings. Although the circuit courts have systems and technology in place to know the exact date, hour, and minute a pleading has been filed with the court, such assumptions should not be made about the immigration court environment.
The decisions in Reyes-Luevanos v. Barr and Acosta-Pena v. Barr have the potential to jeopardize the eligibility for many individuals in removal proceedings and undo the positive impact of the court’s holding in Banuelos Galviz.
1 In addition to the 10-years’ physical presence requirement, the individual must also show that they have not been convicted of certain crimes, and his or her removal would result in exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident parent, spouse, or child (under 21 years of age). INA § 240A(b)(1); See Matter of Monreal, 23 I&N, Dec. 56 (BIA 2001). He or she must also demonstrate that they are a person of good moral character whose case merits a positive exercise of discretion. Id.
In June, 2020, U.S. Citizenship and Immigration Services (USCIS) significantly reduced its capacity to produce documents such as Legal Permanent Resident Cards (green cards) and Employment Authorization Documents (work permits). …
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