The BIA issued a decision today that broadly expands the eligibility for cancellation of removal when ICE issues more than one charging document.

The case, Matter of Oraz, raises the question of when someone has been present for “ten years” to make them eligible for cancellation of removal under INA 240A(b). The statute requires an individual to have been “physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.” But the question that often arises is when the “ten-year” clock stops.

Removal proceedings begin when ICE files a documents called a “Notice to Appear” with the immigration court.  The Notice to Appear has to be served on the immigrant before it is filed.  In many some cases, ICE serves the Notice to Appear on the immigrant and then decides not to file it with the court right away.  And sometimes ICE decides years later to issue a new charging document, for new reasons, and serves that document on the immigrant.  In Matter of Oraz, ICE argued that the first Notice to Appear, the one they never even filed, should have stopped the ten-year clock.  Thankfully, the BIA rejected that argument completely.  From its decision:

“Affording “stop-time” effect to “any” notice to appear, regardless of whether proceedings were ever commenced on that basis, would potentially render an alien ineligible for relief on the basis of a charging document that was invalid or otherwise insufficient to support a removal charge as issued.3 And if proceedings were never commenced, the alien would not have the opportunity to contest, or require the DHS to prove, the allegations and charges contained in the notice to appear. In fact, if we were to adopt the DHS’s approach, even in situations where an alien was provided such an opportunity, a notice to appear that he or she has successfully defended against would nevertheless have “stop-time” effect in later proceedings.4 We are not persuaded that Congress intended such far-reaching consequences.”

ICE and the BIA, before today, had taken the position that the ten-year clock stopped the day the immigrant received any Notice to Appear in the mail, even a charging document that was insufficient.  That position was patently unfair, because ICE was able to effectively prevent people from applying for a form of relief Congress specifically created for people who have lived here at least ten years, just by giving them any charging document.  If you are in removal proceedings and are applying for cancellation of removal, it is critical to keep in mind the date of receipt of the Notice to Appear, not just the date of filing.