Criminal Defense of Immigrants

(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 when the noncitizen “commits” certain offenses.[95]  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).  However, the offense does not have to have been charged in the NTA as a ground of removal.[96] 

Section 212(a)(2) lists grounds of inadmissibility triggered by convictions for CMTs and controlled substances offenses, but not others (such as firearms or DV offenses).[97]  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.[98] 

Commission of a CMT does not stop the clock where the Petty Offense, Youthful Offender, or Political Offense exceptions prevent the conviction from triggering inadmissibility.[99] 

Counsel may wish to argue that inadmissibility under any of the “reason to believe” grounds of inadmissibility[100] dose not stop the clock for purposes of cancellation of removal, since the stop-time rule requires the commission of an offense.  See § 21.6, supra.  That an officer had ‘reason to believe -- is not an “offense” and therefore should not stop the period of continuous physical presence required for cancellation of removal.

The BIA has held that the clock stops on the date of commission of the offense,[101] even where a conviction or some other later act was needed to make the person inadmissible or deportable.[102]  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.

                There is an argument that a conviction obtained through a nolo contendre (no contest) plea cannot stop the clock because the noncitizen is not admitting that s/he has committed any crime.[103]

[95] 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).

[96] 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), 8 U.S.C. § 1229b(d)(i)(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).

[97] 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 a CMT), 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)). 

[98] 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).

[99] 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).

[100] INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) (drug trafficking); INA § 212(a)(2)(I), 8 U.S.C. § 1182(a)(2)(I) (money laundering); INA § 212(a)(2)(H)(i), 8 U.S.C. § 1182(a)(2)(H)(i) (trafficking in persons).

[101] 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).

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

[103] Cf. United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) (federal conviction under INA § 243, 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).