(A) Continuous Presence.  The required periods of continuous differ depending on whether the noncitizen is a lawful permanent resident (seven years),[56] a non-lawful permanent resident (ten years),[57] or a noncitizen that falls within the provisions of the Violence Against Women Act (three years).[58]

While it was previously understood that, for lawful permanent residents, the required period of residence since admission begins at any lawful admission, e.g., admission as a tourist, refugee, or lawful permanent resident,[59] this may no longer be the case.  The BIA has recently held that the five-year admission requirement under INA § 237(a)(2)(A)(i) (deportation for single crime of moral turpitude within five years of admission) starts fresh with each admission.[60]  This decision could also mean that the continuous physical presence period for lawful permanent residents restarts upon each admission (e.g., adjustment from H1-B status to LPR).  This issue will likely turn upon statutory language requiring the noncitizen have seven years presence “after having been admitted in any status.”[61]  The BIA recognized, however, that the Ninth Circuit follows a contrary rule, at least where the noncitizen has not fallen out of status.[62]  This is a question open to judicial review.[63]

 

Adjustment to permanent residence should be held to constitute an admission for purposes of the seven-year continuous presence requirement even where the noncitizen did not initially enter lawfully.[64]  Neither the non-LPR nor VAWA forms of cancellation require that the initial admission be lawful.  The time a noncitizen is in the United States under Temporary Protected Status[65] is not counted toward the period of continuous physical presence.[66] 

 

The accrual of physical presence may be broken by certain departures from the United States.  In most cases, departure from the United States for any period in excess of 90 days, or for any periods in the aggregate exceeding 180 days, will be sufficient to end continuous presence.[67]  However, this is not the exclusive rule for determining breaks in physical presence.[68]  Deportation,[69] or voluntary departure in lieu of deportation, for example, may also constitute a break in physical presence. [70]  Re-entry (whether lawful or not) after deportation, or after commission of a clock-stopping offense, re-starts the clock.[71]

[56] INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2).  The stop-time rule does not apply to accrual of the five years lawful permanent resident status required under INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).

[57] INA § 240A(b)(1)(A), 8 U.S.C. § 1229b(b)(1)(A).

[58] INA § 240A(b)(2)(A)(ii), 8 U.S.C. § 1229b(b)(2)(A)(ii).  Service of an NTA does not stop the clock for noncitizens eligible for cancellation under this provision.

[59] A parent’s admission for permanent resident status is imputed to the parent’s unemancipated minor children residing with the parent.  Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. Dec. 7, 2005).

[60] Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005).

[61] INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2).

[62] See Matter of Shanu, 23 I. & N. Dec. 754, 760 n.4 (BIA 2005), citing Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. Mar. 12, 2004) (five-year period for INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) runs from first admission, as long as noncitizen maintained lawful status).  Matter of Shanu may also be distinguishable on this basis.

[63] See, e.g., Cuellar v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005); Valdivia v. Gonzales, 423 F.3d 1144 (10th Cir. Sept. 13, 2005); Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. Jan. 25, 2005).

[64] See Matter of Rosas, 22 I. & N. Dec. 616 (BIA 1999).

[65] See § 2.37, infra.

[66] INA § 244(e), 8 U.S.C. § 1254a(e).

[67] INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2). This rule is retroactive to pre-IIRAIRA departures.  Garcia-Ramirez v. Gonzales, 423 F.3d 935 (9th Cir. Aug. 26, 2005).  A different rule applies to VAWA applicants.  See § 2.38, infra.

[68] Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. Jan. 15, 2004) (90/180 day limit contained in INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2) is not the exclusive definition of break in continuous physical presence)

[69] Matter of Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (continuous physical presence for cancellation eligibility ends at the time a noncitizen is compelled to depart the United States under threat of the institution of deportation or removal proceedings, holding two short departures constituted breaks in continuous presence).

[70] Mendez-Reyes v. Att’y Gen., 428 F.3d 187 (3d Cir. Nov. 1, 2005) (ten years physical presence was broken by prior voluntary departure under threat of deportation); Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. Jan. 15, 2004).  But see Tapia v. Gonzales, 430 F.3d 997 (9th Cir. Dec. 6, 2005) (being turned away at the border by immigration officials does not have the same effect as an administrative voluntary departure and does not itself interrupt the accrual of an alien’s continuous physical presence for purposes of cancellation of removal); Ortiz-Cornejo v. Gonzalez, 400 F.3d 610 (8th Cir. Mar. 11, 2005) (physical presence required for cancellation of removal not interrupted where noncitizen was turned away at border, but without evidence that the threat of deportation was expressed by the immigration officials, and understood by the noncitizen); Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. Jan. 25, 2005) (where noncitizen returned to Mexico for only about two weeks to visit his ailing grandfather, the record is insufficient to establish that his experience of being put across the border in 1990 constituted voluntary departure “under threat of deportation” so as legally to break his continuous period of physical presence in the United States, for purposes of qualifying for cancellation for non-LPRs, under INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2), for lack of evidence that the threat of deportation was expressed to him and understood by him); Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. Sept. 15, 2004) (noncitizen’s attempts at re-entry into United States, which resulted in simply being returned to the border, did not constitute a break in continuous physical presence for purposes of application for cancellation of removal); Matter of Avilez, 23 I. & N. Dec. 799 (BIA Aug. 10, 2005) (non-LPR period of continuous physical presence was not interrupted where she left the United States for two weeks, and was stopped at the United States border, but was merely turned back without any official record).

[71] Okeke v. Gonzales, 407 F.3d 585 (3d Cir. May 18, 2005) (new period of continuous physical presence in the United States begins with lawful re-entry to the United States after commission of an offense which stopped the clock); Matter of Cisneros-Gonzalez, 23 I. & N. Dec. 668 (BIA 2004) (illegal re-entry after deportation starts new clock for non-LPR cancellation).

RELIEF " LPR CANCELLATION " CONTINUOUS RESIDENCE " CANNOT IMPUTE PARENTS RESIDENCE TO MINOR
Holder v. Martinez Gutierrez, ___ U.S. ___, 132 S. Ct. 2011 (May 21, 2012) (LPR cancellation applicant cannot impute parent's time or residence or continuous residence to establish eligibility; BIA construction of the statute is reasonable under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)), abrogating Cuevas"Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), and Mercado"Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009). NOTE: This decision made no mention of Brand-X.

RELIEF - CANCELLATION OF REMOVAL - STOP-TIME RULE
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (due process and equal protection claims relating to stop-time rule for cancellation of removal constitute constitutional claims over which court has petition for review jurisdiction).

BIA

RELIEF " LPR CANCELLATION OF REMOVAL " CONTINUOUS PRESENCE "VOLUNTARY RETURN
Matter of Castrejon-Colino, 26 I. & N. Dec. 667 (BIA 2015) (where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the aliens continuous physical presence for purposes of cancellation of removal under INA 240A(b)(1)(A), 8 U.S.C. 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing; although the taking of photographs and fingerprints in conjunction with a voluntary return may be part of a formal, documented process, it is insufficient to meet the requirements of Matter of Avilez without any evidence that it was associated with a legally enforced refusal of admission and return); clarifying Matter of Avilez, 23 I&N Dec. 799 (BIA 2005). CD4:24.6;AF:2.6;CMT3:3.6 RELIEF " LPR CANCELLATION OF REMOVAL " CONTINUOUS PRESENCE "VOLUNTARY RETURN Matter of Garcia Ramirez, 26 I&N Dec. 674 (BIA 2015) (where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the aliens continuous physical presence for purposes of cancellation of removal under INA 240A(b)(1)(A), 8 U.S.C. 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing); clarifying Matter of Avilez, 23 I&N Dec. 799 (BIA 2005).

RELIEF " CANCELLATION OF REMOVAL " STOP-TIME RULE IS NOT TRIGGERED BY A NOTICE OF APPEAR THAT WAS NEVER SERVED ON THE COURT
Matter of Ordaz, 26 I&N Dec. 637 (BIA 2015) (a notice to appear that was served on an alien but never resulted in the commencement of removal proceedings does not have "stop-time" effect for purposes of establishing eligibility for cancellation of removal pursuant to INA 240A(d)(1), 8 U.S.C. 1229b(d)(1)). NOTE: This decision could potentially be used to argue for something like repapering (issuing a new NTA to allow noncitizen to have 10 years presence) as a form of prosecutorial discretion, except one would need to intercept the NTA before it is served on the court.

RELIEF " CANCELLATION OF REMOVAL " SPECIAL RULE CANCELLATION "212(H) CANNOT WAIVE INADMISSIBILITY FOR PURPOSES OF SPECIAL RULE CANCELLATION OF REMOVAL
Matter of Y-N-P-, 26 I&N Dec. 10 (BIA 2012) (an applicant for special rule cancellation of removal under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2), cannot utilize a waiver of inadmissibility INA 212(h), 8 U.S.C. 1182(h), to overcome the cancellation bar of INA 240A(b)(2)(A)(iv), 8 U.S.C. 12296(b)(2)(A)(iv), bar for crimes).

RELIEF " WAIVERS " NON-LPR CANCELLATION OF REMOVAL " CRIME OF MORAL TURPITUDE CONVICTION BAR CANNOT BE OVERCOME BY WAIVER OF INADMISSIBILITY UNDER INA 212(h)
Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011) (the bar to cancellation of removal, in INA 240A(b)(1)(C), 8 U.S.C. 1229b(b)(1)(C), which precludes an alien who has been convicted of an offense under INA 212(a)(2), 8 U.S.C. 1182(a)(2), from establishing eligibility for relief, may not be overcome by a waiver under INA 212(h)). http://www.justice.gov/eoir/vll/intdec/vol25/3722.pdf

JUVENILE - RELIEF - CANCELLATION - FIVE YEAR LAWFUL PERMANENT RESIDENCE REQUIREMENT - PARENT'S LPR STATUS CANNOT BE IMPUTED TO CHILD FOR THIS PURPOSE
Matter of Escobar, 24 I. & N. Dec. 231 (BIA July 11, 2007) (parents lawful permanent resident status cannot be imputed to a child [who did not adjust until much later] for purposes of calculating the five years of lawful permanent residence required to establish eligibility for cancellation of removal under INA 240A(a)(1), 8 U.S.C. 1229b(a)(1)). http://www.usdoj.gov/eoir/vll/intdec/vol24/3572.pdf

RELIEF - CANCELLATION - STOP-TIME RULE TRIGGERED BY CRIMINAL CONDUCT THAT CONSTITUTES GROUND OF INADMISSIBILITY OR DEPORTABILITY EVEN THOUGH NOT CHARGED OR FOUND AS GROUND OF REMOVAL
Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (commission of offense stops the clock for cancellation of removal, by terminating a period of continuous residence in the United States pursuant to INA 240A(d)(1)(B), even though the offense was not charged as nor found to be a ground of inadmissibility or deportability), distinguishing Matter of Fortiz, 21 I. & N. Dec. 1199 (BIA 1998); see also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006) (rejecting due process challenge to use of uncharged conviction to find a noncitizen ineligible for relief).

RELIEF - CANCELLATION - STOP-TIME RULE TRIGGERED BY CRIMINAL CONDUCT THAT CONSTITUTES GROUND OF INADMISSIBILITY OR DEPORTABILITY EVEN THOUGH COMMITTED PRIOR TO EFFECTIVE DATE OF IIRAIRA
Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (commission of criminal offense mentioned in INA 212(a)(2) that constitutes a ground of inadmissibility or deportability stops accrual pursuant to INA 240A(d)(1)(B) of period of continuous residence for cancellation of removal even though committed prior to effective date of IIRAIRA), following Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999); Matter of Robles, 24 I. & N. Dec. 22 (BIA 2006) (Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), does not require different conclusion); see also Fernandez-Vargas v. Gonzales, ___ U.S. ___, 126 S.Ct. 2422 (2006) (INA 241(a)(5), 8 U.S.C. 1231(a)(5), which holds reinstatement of removal order may be applied to noncitizen who reentered before effective date of reinstatement provision); Sotelo v. Gonzales, 430 F.3d 968, 972 n.2 (9th Cir. 2005).

RELIEF - CANCELLATION - STOP-TIME RULE TRIGGERED BY CRIMINAL CONDUCT THAT CONSTITUTES GROUND OF INADMISSIBILITY OR DEPORTABILITY EVEN THOUGH COMMITTED PRIOR TO EFFECTIVE DATE OF IIRAIRA
Matter of Robles, 24 I. & N. Dec. 22 (BIA Sept. 27, 2006) (commission of criminal offense mentioned in INA 212(a)(2) that constitutes a ground of inadmissibility or deportability under "stop-time" rule stops accrual pursuant to INA 240A(d)(1)(B), 8 U.S.C. 1229b(d)(1)(B) of period of continuous residence for cancellation of removal even though committed prior to effective date of IIRAIRA; Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), does not require different conclusion), reaffirming Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999).

RELIEF"WAIVERS"CANCELLATION"STOP-TIME RULE"NOTICE TO APPEAR
Matter of Cisneros, 23 I. & N. Dec. 668, 672 (BIA 2004) ([B]oth the overall design of the statute and Congress' concerns leading to its enactment indicate that the ``stop-time'' rule was not intended to extend to charging documents issued in earlier proceedings. Consequently, we conclude that the ``notice to appear'' referred to in section 240A(d)(1) pertains only to the charging document served in the proceedings in which the alien applies for cancellation of removal, and not to charging documents served on the alien in prior proceedings.). Thanks to Jonathan Moore.

RELIEF - CANCELLATION - STOP-TIME RULE - NOT TRIGGERED BY PETTY OFFENSE FIRST CMT CONVICTION AND SEVEN YEARS RAN BEFORE SECOND CONVICTION OCCURRED
Matter of Deandra-Romo, 23 I. & N. Dec. 597 (BIA 2003) (respondent, convicted of two misdemeanor crimes involving moral turpitude, is not precluded by INA 240A(d)(1)(B), 8 U.S.C. 1229b(d)(1)(B), from establishing the requisite seven years of continuous residence for cancellation of removal under INA 240A(a)(2), because his first crime, which qualified under the petty offense exception, did not render him inadmissible, and he had accrued the requisite seven years of continuous residence before the second offense was committed).

RELIEF " CANCELLATION FOR LPRS " CONTINUOUS PRESENCE " ADMISSION IN ANY STATUS " AMNESTY TEMPORARY RESIDENT DATE COUNTS AS ADMISSION
Matter of Perez, 22 I&N Dec. 689 (BIA 1999) (admission as a temporary resident for amnesty applicants " prior to grant of permanent residency " counts as admission in any status for purposes of continuous presence requirement for cancellation of removal for Lawful Permanent Residents, under INA 240 A (a), 8 U.S.C. 12296 (a)).

CANCELLATION OF REMOVAL - STOP-TIME RULE
Reid v. Gonzales, __ F.3d __, 2007 WL 603090 (2d Cir. Feb. 28, 2007) (BIA was correct in concluding that stop-time rule is triggered upon commission of listed offense, not conviction).

First Circuit

RELIEF " CANCELLATION " STOP-TIME RULE
Soto v. Holder, 736 F.3d 1009 (1st Cir. Dec. 3, 2013) (clock for purposes of stop-time rule for cancellation of removal ended on date NTA was served on the noncitizen, even though it was not served on the Immigration Court until two years later).

RELIEF " CANCELLATION " STOP-TIME RULE
Cheung v. Holder, 678 F.3d 66 (1st Cir. May 2, 2012)(service of Notice to Appear was effective to stop accrual of continuous presence, even though the fraud charge filed in the NTA was withdrawn and a new charge, overstaying, was later added, since the NTA itself was never withdrawn).

RELIEF - WAIVERS - 212(H) RELIEF - CANCELLATION - STOP-TIME RULE
Onwuamaegbu v. Gonzales, 470 F.3d 405, 2006 WL 3501247 (1st Cir. Dec. 6, 2006) (respondent was an immigrant "previously . . . admitted . . . as an alien lawfully admitted for permanent residence," even though he had fraudulently misrepresented a material fact in his 1986 LPR application, and . . . therefore was "bound," by subsection 212(h), to satisfy the seven-year rule."), citing Matter of Ayala, 22 I. & N. Dec. 398, 401 (BIA 1998); cf. Matter of Koloamatangi, 23 I. & N. Dec. 548, 551 (BIA 2003) (defining, for purposes of cancellation of removal under INA 240A(a), the phrase "lawfully admitted for permanent residence" to exclude admissions acquired by fraudulent means, but expressly distinguishing Ayala because of 212(h)'s differing choice of language); cf. also Savoury v. U.S. Attorney Gen., 449 F.3d 1307, 1315 (11th Cir.2006) (observing same distinction between Ayala and Koloamatangi ); Obioha v. Gonzales, 431 F.3d 400, 409 n. 10 (4th Cir.2005) (same). http://laws.lp.findlaw.com/1st/051181.html

RELIEF - CANCELLATION - STOP-TIME RULE - RULE PROPERLY APPLIED RETROACTIVELY TO CONVICTION PREDATING ENACTMENT OF RULE
Peralta v. Gonzales, 441 F.3d 23 (1st Cir. Mar. 23, 2006) (stop-time rule for cancellation of removal applies retroactively to convictions prior to IIRAIRA).

Second Circuit

RELIEF " CANCELLATION OF REMOVAL " CONTINUOUS RESIDENCE REQUIREMENT " STOP-TIME RULE
Guaman-Yuqui v. Lynch, ___ F.3d ___, 2015 WL 2365838 (2d Cir. May 19, 2015) (notice to appear triggered the stop-time rule, under INA 240A(d)(1)(A), 8 U.S.C. 1229b(d)(1)(A), for the continuous residence requirement for cancellation of removal, even though it omitted the date and time of the initial removal hearing).

RELIEF"CANCELLATION FOR NON-LPRS"STOP-TIME RULE"SERVICE OF NTA
Guamanrrigra v. Holder, 670 F.3d 404 (2d cir. Feb. 24, 2012) (service of a Notice to Appear, which did not specify the time or date of the hearing, followed by an NTA that did, stopped the clock for the 10-year continuous presence requirement for non-LPR cancellation of removal under INA 240A(d)(1)(A), 8 U.S.C. 1229b(d)(1)(A) as of the date of the second notice).

RELIEF - CANCELLATION OF REMOVAL - STOP-TIME RULE NOT IMPERMISSIBLY RETROACTIVE
Martinez v. INS, 523 F.3d 365 (2d Cir. Apr. 23, 2008) (application of the stop-time rule under INA 240A(d)(1)(B), 8 U.S.C. 1229b(d)(1)(B), as applied to a conviction occurring before IIRAIRA effective date was not impermissibly retroactive).

Third Circuit

WAIVERS " CANCELLATION OF REMOVAL " STOP-TIME RULE
Guzman v. Attorney General U.S., 770 F.3d 1077 (3d Cir. Nov. 3, 2014) (the stop-time rule, as enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104"208, div. C., 110 Stat. 3009 (1996) (IIRIRA) (effective April 1, 1997), codified at INA 240A(d)(1), 8 U.S.C. 1229b(d)(1), is not impermissibly retroactive as applied to a 1995 criminal offense, where the commission and conviction pre-date the effective date of the stop-time rule, since the passage of IIRIRA did not change the legal consequences that faced petitioner as a result of his 1995 conviction; he was deportable in 1995 with no avenue for relief, just as he is deportable today, and the loss of an opportunity to delay deportation proceedings does not create a "new disability" under Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483 (1994)). Note: Unlike Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1201 (9th Cir. 2006), and Guzman v. Attorney General U.S., 770 F.3d 1077 (3d Cir. Nov. 3, 2014), the noncitizen in this case would not have been eligible for cancellation of removal on April 1, 1997, but for the stop-time rule

CANCELLATION OF REMOVAL " STOP-TIME RULE " NOTICE TO APPEAR
Urbina v. Holder, __ F.3d __ (4th Cir. Mar. 17, 2014) (service of notice to appears stopped time for cancellation of removal purposes even though the notice contained missing charges, and incorrect information).

RELIEF " WAIVERS " CANCELLATION OF REMOVAL " CONTINUOUS RESIDENCE REQUIREMENT " STOP-TIME RULE
Nelson v. Attorney General of U.S., 685 F.3d 318 (3d Cir. May 22, 2012) (when a qualifying conviction stops the accrual of continuous presence, under INA 240A(d)(1), 8 U.S.C. 1229B(d)(1) for purposes of cancellation of removal, the noncitizen may not thereafter begin a new period); following Briseno"Flores v. Attorney General, 492 F.3d 226 (3d Cir. 2007); Matter of Mendoza-Sandino, 22 I. & N. Dec. 1236, 1241 (BIA 2000) (once an alien's period of continuous presence or residence is terminated by the stop-time provision, INA 240A(d)(1), 8 U.S.C. 1229B(d)(1) " through service of a notice to appear or commission of a specified offense " it does not restart, and the alien does not automatically begin accruing a new period following the cessation of the first one)

RELIEF " LPR CANCELLATION OF REMOVAL " CONTINUOUS PRESENCE REQUIREMENT " STOP-TIME RULE
Santos-Reyes v. Attorney General, 660 F.3d 196 (3d Cir. Oct. 26, 2011) (date of commission of an offense, rather than date of arrests, tiggers the stop-time rule under INA 240A(d)(1), 8 U.S.C. 1229b(d)(1)).

RELIEF " WAIVERS " NON-LPR CANCELLATION OF REMOVAL " CONTINUOUS RESIDENCE
Flores-Nova v. Attorney General of the U.S., __ F.3d __, 2011 WL 2989709 (3d Cir. Jul. 25, 2011) (no humanitarian exception exists to the 90/180 day absence rule breaking periods of continuous physical presence for non-LPRs).

RELIEF " WAIVERS " CANCELLATION OF REMOVAL FOR NON-LPRS " CONTINUOUS PRESENCE REQUIREMENT
Demandstein v. Attorney General of the US, ___ F.3d ___, 2011 WL 652751 (3d Cir. May 10, 2011) (deportation and illegal re-entry breaks period of continuous physical presence). CD4:24.6;AF:2.6;CMT3:3.6

RELIEF - CONTINUOUS PRESENCE REQUIREMENT - STOP-TIME RULE - EQUITABLE ESTOPPEL CLAIM REJECTED
Arca-Pineda v. Att'y Gen., 527 F.3d 101 (3d Cir. May 28, 2008) (respondent cannot re-start clock by failing to appear for removal proceeding and then waiting an additional 10 years).

RELIEF - CANCELLATION - STOP-TIME RULE
Arca-Pineda v. Att'y Gen., 527 F.3d 101 (3d Cir. May 28, 2008) (continuous physical presence clock did not begin to run again after an administrative closure; administrative closure is not a termination proceedings; it only removes the case from the IJs calendar).

RELIEF - CANCELLATION - FAILURE TO IMPUTE PARENTS RESIDENCE TO MINOR FOR CANCELLATION PURPOSES
Augustin v. Attorney General, 520 F.3d 264 (3d Cir. Mar. 20, 2008) (BIA did not err in refusing to impute to a noncitizen who entered the United States as a minor the parent's years of continuous residence in order to meet the seven-year requirement for cancellation of removal), declining to follow Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (parent's preceding years of residence in the United States are imputed to a minor child in application for cancellation of removal) , and distinguishing Morel v. INS, 90 F.3d 833 (3d Cir. 1996), vacated on other grounds, 144 F.3d 248 (3d Cir. 1998) (imputing presence in INA 212(c) context).

JUDICIAL REVIEW - RELIEF - 212(C) RELIEF - CANCELLATION OF REMOVAL - ABANDONMENT OF LAWFUL PERMANENT RESIDENT STATUS
Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (court did not have jurisdiction to review determination that alien had abandoned her permanent resident alien status for purposes of 212(c) and cancellation of removal eligibility).

Fourth Circuit

RELIEF " NON-LPR CANCELLATION OF REMOVAL " CANCELLATION OF REMOVAL " PETTY OFFENSE EXCEPTION
Hernandez v. Holder, 783 F.3d 189 (4th Cir. Apr. 14, 2015) (deferring to Matter of Cortez Canales, 25 I. & N. Dec. 301, 306"08 (2010), to find noncitizen barred from non-LPR cancellation of removal under INA 240A(b)(1), 8 U.S.C. 1229b(b)(1), due to being removable under INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), even though the noncitizens only crime fits within the petty offense exception to inadmissibility). Note: This is the first circuit court opinion to address Matter of Cortez.

WAIVERS " CANCELLATION OF REMOVAL " STOP-TIME RULE
Jaghoori v. Holder, 772 F.3d 764 (4th Cir. Nov. 18, 2014) (stop-time rule for cancellation of removal does not apply retroactively against convictions where offense and guilty plea occurred before April 1, 1997, the effective date of the legislation by which Congress promulgated the rule in INA 240A(d)(1)(B), 8 U.S.C. 1229b(d)(1)(B), because considerations of fair notice, reasonable reliance, and settled expectations militate against retroactivity here, so the "traditional presumption" against retroactivity applies). NOTE: Noncitizen in this case would have been eligible for cancellation on April 1, 1997, but for the stop-time rule. See Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1201 (9th Cir. 2006).

Fifth Circuit

RELIEF " CANCELLATION OF REMOVAL " CONTINUOUS RESIDENCE " STOP-TIME RULE
Calix v. Lynch, 784 F.3d 1000 (5th Cir. Apr. 28, 2015) (lawful permanent resident seeking cancellation of removal who committed an offense that would make him or her inadmissible if actually seeking admission, within seven years of lawful admission, is barred from applying for cancellation of removal under the stop-time rule, INA 240A(d)(1)(B), 8 U.S.C. 1229b(d)(1)(B)).

RELIEF " CANCELLATION OF REMOVAL FOR LPRS " CONTINUOUS RESIDENCE REQUIREMENT " STOP-TIME RULE
Miresles-Zuniga v. Holder, 743 F.3d 110 (5th Cir. Feb. 14, 2014) (stop time rules requirement that offense must be referred to in INA 212(a)(2), does not mean that the stop-time rule is met only if a comparable ground of deportation is triggered; respondent was barred from cancellation of removal where conviction was a CMT, triggering inadmissibility, and a domestic violence offense triggering deportability, even though the offense did not trigger deportability as a CMT).

RELIEF " NON-LPR CANCELLATION OF REMOVAL
Ramos-Torres v. Holder, 637 F.3d 544 (5th Cir. Apr. 4, 2011) (administrative voluntary departure, under threat of deportation, is equivalent to voluntary departure under order of deportation, and stops the time for purposes of cancellation of removal).

RELIEF - CANCELLATION OF REMOVAL - CONTINUOUS RESIDENCE REQUIREMENT
Deus v. Holder, 591 F.3d 807 (5th Cir. Dec. 23, 2009) (noncitizen cannot impute mother's years of residence in the United States as a lawful permanent resident for purposes of qualifying for cancellation of removal), disagreeing with Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005).

Note: although the court seemed sympathetic to the Cuevas-Gaspar argument, it found that the BIAs interpretation of the statute was reasonable under Chevron.

RELIEF - CANCELLATION - STOP-TIME RULE - RETROACTIVE APPLICATION DOES NOT VIOLATE DUE PROCESS
Heaven v. Gonzales, 473 F.3d 167 (5th Cir. Dec. 14, 2006) (retroactive application of stop-time rule governing accrual of continuous presence requirement for cancellation of removal was proper in removal proceeding begun after effective date of IIRAIRA).

Sixth Circuit

RELIEF " CANCELLATION OF REMOVAL " STOP-TIME RULE
Gonzalez-Garcia v. Holder, __ F.3d __ (6th Cir. Oct. 24, 2014) (service of NTA stops time for purposes of non-LPR cancellation of removal, even if NTA fails to indicate date and time of hearing).

Seventh Circuit

RELIEF " CANCELLATION OF REMOVAL FOR NON-LPRS " CONTINUOUS PRESENCE " EXPEDITED REMOVAL
Nunez-Moron v. Holder, ___ F.3d ___, 2012 WL 5315860 (7th Cir. Oct. 30, 2012) (expedited removal broke noncitizens continuous physical presence period for purposes of non-LPR cancellation of removal).

RELIEF " NON-LPR CANCELLATION OF REMOVAL " GOOD MORAL CHARACTER
Duron-Ortiz v. Holder, 698 F.3d 523 (7th Cir. 2012) (ten year good moral character period ends upon the date of the final administrative hearing, not when the NTA is served; noncitizen who committed act of moral turpitude after NTA had been served could therefore be barred from non-LPR cancellation of removal), upholding Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA 2005)

RELIEF " NON-LPR CANCELLATION OF REMOVAL " THIRD PARTY STANDING
Marin-Garcia v. Holder, 647 F.3d 666, 2011 WL 3130273 (7th Cir. Jul. 22, 2011) (noncitizen applicant for non-LPR cancellation has third party standing to challenge BIA determination that denial of his cancellation of removal was unconstitutional as applied to his two USC daughters, who were required to show exceptional and extremely unusual hardship).

RELIEF NON-LPR CANCELLATION OF REMOVAL " STOP-TIME RULE
Reyes-Sanchez v. Holder, 646 F.3d 493 (7th Cir. Jul. 14, 2011) (In determining whether an encounter at the border is sufficient to break a petitioner's continuous physical presence and render her ineligible for cancellation of removal, the court must determine whether the petitioner faced a formal, documented process at the border, and chose to depart under threat of removal.), citing Matter of Avilez"Nava, 23 I. & N. Dec. 799 (BIA 2005).

RELIEF - CANCELLATION - RETROACTIVITY - CONVICTION BAR TO CANCELLATION APPLIES EVEN THOUGH CONVICTION PREDATED IIRAIRA
Obi v. Holder, 558 F.3d 609 (7th Cir. Mar. 3, 2009) (IIRAIRA bar to cancellation of removal properly applied retroactively to visa fraud conviction occurring before IIRAIRA effective date).

RELIEF - CANCELLATION OF REMOVAL - RETROACTIVITY
Obi v. Holder, 558 F.3d 609 (7th Cir. Mar. 03, 2009) (per curiam) (use of pre-IIRAIRA conviction to create bar to cancellation of removal under the stop-time rule is not impermissibly retroactive).

RELIEF - LPR CANCELLATION OF REMOVAL - CONTINUOUS RESIDENCE
Bakarian v. Mukasey, 541 F.3d 775 (7th Cir. Sept. 4, 2008) (noncitizen with 1996 conviction could not show 7 years continuous residence for LPR cancellation where he had been admitted in 1987 as a visitor, and traveled between the U.S. and Russia numerous times before his admission as an LPR in 1990; residence period did not start in 1987, given noncitizens numerous and length trips to Russia before his LPR admission in 1990).

Ninth Circuit

RELIEF " CANCELLATION OF REMOVAL " ADMISSION IN ANY STATUS
(respondent was admitted in 1993 when he was waved across the border after inspection by an immigration officer, since the phrase in any status plainly encompasses every status recognized by immigration statutes, lawful or unlawful, his procedurally regular admission in 1993 was an admission in any status under 8 U.S.C. 1229b(a)(2)).

RELIEF " NON-LPR CANCELLATION OF REMOVAL" CONTINUOUS PRESENCE " SERVICE OF NTA
Mocoso-Castellanos v. Lynch, 803 F.3d 1079 (9th Cir. Oct. 13, 2015) (respondent did not continue to accrue continuous physical presence, for purposes of non-LPR cancellation of removal, after being served with a notice to appear in removal proceedings that did not contain the date and time of appearance); see Matter of Camarrillo, 25 I. & N. Dec. 644 (BIA 2011).

RELIEF " CANCELLATION OF REMOVAL " CONTINUOUS RESIDENCE REQUIREMENT " NO IMPUTATION OF PARENTS TIME TO CHILD
Mojica v. Holder, 689 F.3d 1133 (9th Cir. Oct. 10, 2012) (rejecting petitioner's imputation argument making use of her father's lawful permanent residence to qualify for cancellation of removal, in light of the Supreme Court's holding in Holder v. Martinez Gutierrez).

RELIEF " CANCELLATION OF REMOVAL " CONVICTION BAR
Young v. Holder, 697 F.3d 976, *982 (9th Cir. Sept. 17, 2012)(en banc) (In Shepard, 544 U.S. at 26, the Supreme Court imposed evidentiary limitations on the types of documents that we may consider under the modified categorical approach; we may review only the charging instrument, transcript of the plea colloquy, plea agreement, and comparable judicial record of this information. Id . That holding applies here [when determining eligibility for cancellation of removal because the statute refers to generic crimes.]).

RELIEF " WAIVERS " LPR CANCELLATION OF REMOVAL " CONTINUOUS RESIDENCE OF PARENT MAY NOT BE IMPUTED TO CHILD
Sawyers v. Holder, 684 F.3d 911 (9th Cir. Jun. 29, 2012) (per curiam) (Cuevas"Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), and Mercado"Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) are no longer valid precedent on the issue of imputation under 8 U.S.C. 1229b); following Holder v. Martinez Gutierrez, ___ U.S. ___, 132 S.Ct. 2011 (2012).

RELIEF"WAIVERS"NON-LPR CANCELLATION OF REMOVAL"CONTINUOUS PHYSICAL PRESENCE REQUIREMENT
Zarate v. Holder, 671 F.3d 1132 (9th Cir. Feb. 9, 2012) (apprehension at border followed by arrest and being given the option of either seeing an IJ or withdrawing his application for admission and voluntarily returning to Mexico was sufficient to break continuous presence for non-LPR cancellation of removal), compare Valadez"Munoz v. Holder, 623 F.3d 1304, 1311 (9th Cir. 2010) (informal voluntary return, including making of a record of a turnaround, photographing and fingerprinting, does not break continuous residence).

RELIEF " CANCELLATION FOR LPRS " CONTINUOUS PRESENCE REQUIREMENT
Vasquez de Alcantar v. Holder, 645 F.3d 1097, 2011 WL 2163965 (9th Cir. Jun. 3, 2011) (approved Form I"130 Petition did not confer admission status on an undocumented immigrant for purposes of showing seven years of continuous residence under INA 240A(a)(2), 8 U.S.C. 1229b(a)(2)).

CANCELLATION OF REMOVAL " CONTINUOUS PRESENCE " EMPLOYMENT AUTHORIZATION IS NOT ADMISSION
Guevara v. Holder, ___ F.3d ___ (9th Cir. Jun. 3, 2011) (grant of employment authorization, pending the approval of adjustment of status under 8 U.S.C. 1255, does not constitute an admission for purposes of calculating seven years of continuous residence for LPR cancellation of removal under INA 240A(a)(2), 8 U.S.C. 1229b(a)(2)).

RELIEF " NON-LPR CANCELLATION " TEN-YEAR RESIDENCY REQUIREMENT " IMPUTATION OF PARENTS PHYSICAL PRESENCE TO PETITIONER
Saucedo-Arevalo v. Holder, ___ F.3d ___, 2011 WL 1126039 (9th Cir. Mar. 29, 2011) (requirement of 10 years physical presence in the United States cannot be imputed from a parent to the applicant), applying reasoning of Barrios v. Holder, 581 F.3d 849, 862"65 (9th Cir. 2009). Compare, Cuevas"Gaspar v. Gonzales, 430 F.3d 1013, 1024 (9th Cir. 2005) (imputing parent's seven years presence after lawful admission for LPR cancellation); Mercado"Zazueta v. Holder, 580 F.3d 1102, 1103 (9th Cir. 2009) (imputing parents 5 year LPR status for LPR cancellation).

RELIEF " CANCELLATION OF REMOVAL " CONTINUOUS PRESENCE
Padilla-Romero v. Holder, 611 F.3d 1011 (9th Cir. Jul. 9, 2010) (removal of LPR interrupts continuous presence for purposes of INA 240A(a)(1); a noncitizen who was once a lawful permanent resident for five years, but lost such status following an order of removal, is no longer eligible for LPR cancellation of removal).

RELIEF - CANCELLATION OF REMOVAL FOR LPRS - FIVE-YEAR LPR REQUIREMENT - IMPUTATION OF PARENT'S LPR STATUS TO CHILD
Escobar v. Holder, 567 F.3d 466 (9th Cir. May 27, 2009) (a parent's status as a Lawful Permanent Resident may be imputed to an unemancipated minor child residing with that parent, for purposes of satisfying the five-year permanent residence requirement for cancellation of removal under INA 240A(a)(1); the rationale and holding of Cuevas-Gaspar applies equally to the five-year permanent residence and the seven-year continuous residence requirements at issue in that case), following Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005).

NOTE: Escobars mother adjusted status in 1992. Escobar turned 18 in 1997, but did not adjust herself until 2003. The NTA was served in 2006. Thus there was a gap between 1997 and 2003 when Escobar was neither a minor, nor an LPR. It is unclear whether the period between 1992 and 1997 was a full five years. The court may have imputed 4 years LPR via Escobars parents, plus her own LPR years to come up with 5 years LPR status.

RELIEF - NON-LPR CANCELLATION - DOMESTIC VIOLENCE CONVICTION DID NOT BAR CANCELLATION BECAUSE COMMITTED PRIOR TO EFFECTIVE DATE OF DEPORTATION GROUND DOMESTIC VIOLENCE - EFFECTIVE DATE
Mota v. Mukasey, 543 F.3d 1165 (9th Cir.Sept. 17, 2008) (domestic violence conviction does not bar non-LPR cancellation of removal under INA 240A(b)(1)(B), since the conviction occurred prior to Sept. 30, 1996, the effective date of the domestic violence ground of removal).

NON-LPR CANCELLATION OF REMOVAL - CONTINUOUS PRESENCE
Gutierrez v. Mukasey, 521 F.3d 1114 (9th Cir. Apr. 2, 2008) (leaving the United States under voluntary departure broke continuous residence for purposes of non-LPR cancellation of removal).

RELIEF - CANCELLATION OF REMOVAL - STOP-TIME RULE APPLIED RETROACTIVELY TO CONVICTION PREDATING ITS PASSAGE
Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. Dec. 6, 2006) (cancellation stop-time rule not impermissibly retroactive as to a noncitizen who was not eligible for cancellation of removal but for conviction of a criminal offense prior to April 1, 1997), distinguishing Sinotes-Cruz v. Gonzales, __ F.3d __ (Nov. 22, 2006) (stop-time rule impermissibly retroactive). http://caselaw.lp.findlaw.com/data2/circs/9th/0570275p.pdf

RELIEF - CANCELLATION - STOP-TIME RULE - NOT RETROACTIVELY APPLICABLE TO CONVICTIONS PREDATING IIRAIRA EFFECTIVE DATE
Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. Nov. 22, 2006) (the permanent stop-time rule of INA 240A(d)(1) may not be applied retroactively to prevent accrual of the seven-year continuous residence requirement of INA 240A(a)(2), for cancellation of removal, on the basis of a conviction pre-dating the effective date of the stop-time rule), following reasoning of INS v. St. Cyr, 533 U.S. 289 (2001), http://caselaw.lp.findlaw.com/data2/circs/9th/0470745p.pdf

RELIEF - CANCELLATION OF REMOVAL - STOP-TIME RULE - COMMISSION OF OFFENSE - NOLO CONTENDERE PLEA - CONVICTION BASED ON NOLO CONTENDERE PLEA DOES NOT ESTABLISH THAT THE DEFENDANT COMMITTED ANY OFFENSE
United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) (federal conviction under 8 U.S.C. 1253(b) for willful failure to comply with a term of release under supervision -- which required that he not "commit any crimes" -- is reversed where misdemeanor nolo contendere convictions were legally insufficient to support his conviction, because a nolo contendere plea is not an admission of guilt to the underlying crime, a conviction based on such a plea does not prove that he "commit[ted] any crimes;" the convictions should not have been admitted under Federal Rules of Evidence 410, 803(22), or 803(8) for the purpose of proving that he actually committed the underlying crimes charged).
http://caselaw.lp.findlaw.com/data2/circs/9th/0630011p.pdf

RELIEF - CANCELLATION OF REMOVAL - PROOF OF PRIOR GRANT OF VOLUNTARY DEPARTURE
Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. Mar. 6, 2006) (where no actual record of administrative voluntary departure exists, government cannot show that respondent is ineligible for cancellation of removal because continuous presence was interrupted upon administrated VD; respondents testimony is itself insufficient, especially where there was no evidence that the noncitizen knew and accepted the terms of the voluntary departure). http://caselaw.lp.findlaw.com/data2/circs/9th/0471554p.pdf

Lower Courts of Ninth Circuit

RELIEF - CANCELLATION FOR NON-LPRS - DV CONVICTION BAR
Brady, "Defense Strategies: Matter of Almanza Arenas" at www.ilrc.org/criminal.php or in July 2009 Benders Immigration Bulletin.

Tenth Circuit

RELIEF " NON-LPR CANCELLATION OF REMOVAL " CONTINUOUS PHYSICAL PRESENCE REQUIREMENT
Barrera-Quintero v. Holder, 699 F.3d 1239 (10th Cir. Nov. 15, 2012) (voluntary departure under threat of deportation breaks physical presence for purposes of non-LPR cancellation of removal).

RELIEF - CANCELLATION OF REMOVAL - DUE PROCESS AND EQUAL PROTECTION CLAIMS RELATING TO LACK OF RATIONAL BASIS FOR STOP-TIME RULE FOR CANCELLATION OF REMOVAL FOR LPRS REJECTED SINCE NONCITIZEN HAS NO PROTECTED LIBERTY INTEREST IN GRANT OF CANCELLATION
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting claim that due process and equal protection are offended by stop-time rule for cancellation of removal, under 8 U.S.C. 1229b(a), (d), on grounds there is no rational basis exists for the legislature to provide a stop-time rule for 8 U.S.C. 1229b(a)(2)'s "continuous presence" requirement when no such rule exists for 8 U.S.C. 1229b(a)(1)'s five-year requirement; noncitizen lacks protected liberty interest in grant of cancellation of removal), citing United States v. Aguirre-Tello, 353 F.3d 1199, 1204-05 (10th Cir. 2004) (examining the case law in several circuits, and concluding former suspension of deportation, as a purely discretionary form of relief, did not give rise to a liberty or property interest protected by the due process clause), vacated, United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (en banc).

CANCELLATION OF REMOVAL - DUE PROCESS AND EQUAL PROTECTION CLAIMS REJECTED SINCE STOP-TIME RULE FOR CANCELLATION OF REMOVAL FOR LPRS HAS SUFFICIENT RATIONAL BASIS
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting due process lack of rational basis claim as to cancellation stop-time rule: "the stop-time rule is rationally grounded. See Appiah v. INS, 202 F.3d 704, 709-10 (4th Cir. 2000) (applying rational basis review to substantive due process and equal protection challenges to stop-time rule). With the stop-time rule, "Congress intended to prevent aliens from continuing to accumulate time toward the continuous residency requirement after INS had issued an order to show cause to an alien." Sibanda v. INS, 282 F.3d 1330, 1335 (10th Cir. 2002). By mandating the stop-time rule, Congress also removed an alien's incentive for prolonging removal hearings in order to become eligible for cancellation of removal. Appiah, 202 F.3d at 710. These purposes are valid governmental objectives.").

Other

PRACTICE ADVISORY POST CON RELIEF " MOTION TO REDUCE FELONY TO MISDEMEANOR RELIEF " WAIVERS " NON-LPR CANCELLATION " CMT CONVICTION BAR " BAR DOES NOT REQUIRE THAT THE CONVICTION ACTUALLY TRIGGER INADMISSIBILITY OR DEPORTABILITY
A reduction of a felony to a misdemeanor, in a jurisdiction in which the maximum sentence for a misdemeanor is no greater than one year, may enable a client to qualify for the Petty Offense Exception to CMT inadmissibility if the other requirements for the POE are met. INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II). See, e.g., California Penal Code 17(b)(3). If the felony is reduced to a misdemeanor, the maximum punishment for the offense is reduced to one year, which is small enough to qualify for the Petty Offense Exception. LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). This conviction, however, may still disqualify the client from eligibility for non-LPR cancellation. This bar for being convicted under INA 212(a) or 237(a)(2) does not require that a noncitizen actually be inadmissible or deportable under one of these statutes. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). The Ninth Circuit shares this view. Vasquez-Hernandez v. Holder, 90 F.3d 1053 (9th Cir. 2010); Mota v. Mukasey, 543 F.3d 1165 (9th Cir.2008). In deciding whether a person has been convicted of an offense under INA 212(a)(2), 237(a)(2), and 237(a)(3) for purposes of non-LPR cancellation, the BIA will look only to language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). In deciding whether a conviction is described under INA 212(a)(2), 237(a)(2), and 237(a)(3) for eligibility for non-LPR cancellation, the BIA will not consider whether the conviction was within five years of admission or other immigration requirements necessary for deportability. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). If an offense qualifies for the Petty Offense Exception and is punishable by less than a year, the noncitizen is eligible for cancellation because offense is not described under INA 237(a)(2), the crime of moral turpitude ground of deportability. Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010).

RELIEF - CANCELLATION - STOP-TIME RULE - REASON TO BELIEVE GROUND OF INADMISSIBILITY DOES NOT CONSTITUTE COMMISSION OF AN OFFENSE THAT STOPS THE CLOCK FOR CANCELLATION
Counsel may argue that inadmissibility under any of the "reason to believe" grounds of inadmissibility do not stop the clock for purposes of cancellation of removal, since the stop-time rule requires the commission of an offense. That the officer had 'reason to believe -- is not an "offense" and therefore should not stop the period of continuous physical presence for Cancellation of Removal under 240A(a).

RELIEF " CANCELLATION FOR NON-PRS " CONVICTION BAR NOT APPLICABLE TO TRO VIOLATIONS
Immigration counsel can argue that INA 240A(b)(1)(C), barring 10-year non-LPR cancellation for anyone convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3), does not reach a person who was found by a court to have engaged in conduct that violated a qualifying portion of a protection order under INA 237(a)(2)(E)(ii), if the person was not convicted of an offense under the specified statutes. This removal ground does not require or mention a criminal conviction. On the other hand, it is based on a court determination of certain conduct regardless of whether that conduct constitutes a criminal offense, and regardless of whether the person was convicted of that conduct. Because INA 240A(b)(1)(C) requires a criminal conviction, rather than applying where the person merely committed an offense " as the Act so often does, it cannot apply to non-conviction based grounds such as INA 237(a)(2)(E)(ii). Because this removal ground is not based on a conviction, it cannot trigger the conviction-bar to non-LPR cancellation under INA 240A(b)(1)(C). Thanks to Jonathan Moore.