Aggravated Felonies

 

(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).