Wednesday, October 19, 2011

Stop-Time Rule for Cancellation

One of the more arcane, gotcha rules out there is the so called "Stop-Time Rule," which pretermits the consideration of a EOIR-42A or EOIR-42B Application for Cancellation of Removal. Every time I get one of these types of cases, I need to carefully review the regulation and applicable case-law on this point and the rules are different depending upon whether the application is for an LPR or a non-LPR.

So, the other day, I am asked to look at someone who initially entered the US as a student and then married a USC and adjusted to an LPR. They seem to have a psychological condition where they want to take things that do not belong to them. Kleptomania. Many theft offenses, and all of them a CIMT's (Crimes Involving Moral Turpitude).

So the statutory eligibility for filing this relief is:
1. "Lawfully admitted for permanent residence" for 5 years; and
2. Resided in the US continuously for 7 years after having been admitted in any status. INA § 240A(a)(2).

The "Stop-time rule" for an LPR, applies only to the seven-year continuous residence issue and 'does not apply to the five-year requirement." Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th Cir. 2006) and "has no other bearing on the other requirements for cancellation of removal, including the issues of qualifying relatives, hardship, or good moral character."Matter of Bautista Gomez, 23 I&N Dec. 893, 895 (BIA 2006).

So in my case, the fact that our client had entered the US many years ago on F status, as a student, meant she had enough time in continuous residence to qualify and the other five-year requirement is deemed to end upon service of the notice to appear and not the actual date of the offense. INA § 240A(d)(1)(A), meaning our client qualifies for this form of relief.

1 comment:

Anonymous said...

Is this only valid in the 9th Cir? I practice in 2nd and have a client who meets the 7 year phys presence but committed a CIMT 2 days before establishing the 5 yrs as LPR but he was not given NTA until about 5yrs 1 month?