Aggravated Felonies

        (B)  Stop-Time Rule.  The seven years continuous residence ends either when a Notice to Appear is served (except in the case of VAWA applicants), or the noncitizen “commits” certain offenses.[72]  The offense committed must (a) be referred to in INA § 212(a)(2), and (b) cause the person to be deportable under INA § § 237(a)(2) or (a)(4), or inadmissible under INA § 212(a)(2).  Section 212(a)(2) lists grounds of inadmissibility triggered by convictions for CMTs and controlled substances offenses, but not others.[73]  If an act or conviction is not referred to in INA § 212(a)(2), it does not stop accrual of time under INA § 240A(d) for purposes of LPR cancellation of removal.[74]  Commission of a CMT also does not stop the clock where the Petty Offense, Youthful Offender, or Political Offense exceptions prevent the conviction from triggering inadmissibility.[75]  The BIA has held that the clock stops on the date of commission of the offense,[76] even where a conviction or some other later act was needed to make the person inadmissible or deportable.[77]  This conclusion could be challenged as illogical however, because the clock cannot reasonably stop on the commission date when there is as yet no conviction, but a conviction is required before the offense triggers deportation.  If the first conviction is vacated on a ground of legal invalidity, this arguably un-stops the clock.

            The Fifth Circuit and four district courts have held that the stop-time rule does not apply to convictions entered before April 1, 1997.[78]

[72] The stop-time rule does not apply to a noncitizen who enlisted or was inducted into the United States Armed Forces while in the United States, who served a minimum of 24 months active service, and was honorably discharged. INA § 240A(d)(3), 8 U.S.C. § 1229b(d)(3).

[73] Examples of offenses that are not referred to in INA § 212(a)(2), 8 U.S.C. § 1182(a)(2) but that could make a person deportable under INA § 237(a)(2) or (4), 8 U.S.C. § 1227(a)(2) or (4) are firearms offenses (basis for deportability but not inadmissibility), simple assault against a spouse or violation of a domestic violence temporary restraining order (a basis for deportability under the domestic violence ground, but not a basis for inadmissibility unless it is found to be turpitudinous), and drug addiction or abuse (a basis for inadmissibility, but in INA § 212(a)(1), 8 U.S.C. § 1182(a)(1) rather than in INA § 212(a)(2), 8 U.S.C. § 1182(a)(2)). 

[74] See, e.g., Matter of Campos-Torres, 22 I. & N. Dec. 1289 (BIA 2000) (firearms conviction does not stop the clock for cancellation of removal unless it constitutes a CMT or controlled substances conviction).  This should also apply to domestic violence offenses that trigger deportation under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[75] Matter of Deanda-Romo, 23 I. & N. Dec. 597 (BIA 2003) (CMT conviction falling within petty offense exception does not trigger stop-time rule for cancellation of removal, under INA § 240A(d)(1)(B), 8 U.S.C. § 1229b(d)(1)(B); noncitizen had accrued seven years before second CMT offense was committed).

[76] Even if a conviction constituted a CMT, respondent can argue that the stop-time rule of INA § 240A(d), 8 U.S.C. § 1229b(d) does not apply to pre-IIRAIRA acts.  See Henry v. Ashcroft, 175 F. Supp. 2d 688 (S.D. N.Y. 2001); but see Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999) (decided prior to St. Cyr).  See also Otarola v. INS, 270 F.3d 1272 (9th Cir. 2001) (reversing BIA decision to apply stop-time rule because frivolous INS appeal kept case alive until stop-time rule came into effect).

[77] Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999).  See dissent by four Board members for appellate arguments.

[78] Gonzalez-Garcia v. Gonzales, 431 F.3d 234 (5th Cir. Nov. 16, 2005) (convictions that pre-date the April 1, 1997 effective date of INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) [cancellation stop-time rule] do not stop the clock for purposes of cancellation of removal); Mulholland v. Ashcroft, 2004 WL 2386807 (E.D.N.Y. Oct. 25, 2004) (unpublished) (IIRAIRA stop-time rule cannot be applied to bar cancellation of removal based upon pre-IIRAIRA conviction of a crime involving moral turpitude); Generi v. Ashcroft, 2004 WL 771138 (W.D.Mi. Feb. 19, 2004) (unpublished) (stop-time provision may not be applied retroactively to guilty pleas entered prior to the passage of IIRAIRA where proceedings were begun post-IIRAIRA); Henry v. Ashcroft, 175 F.Supp.2d 688 (S.D.N.Y. 2001) (same).  One court held this rule does not apply to the offense date.  Worrell v. Ashcroft, 207 F.Supp.2d 61, 67 (W.D.N.Y. 2002) (stop-time rule is not a retroactive application to someone who committed the crime before the effective date).