The BIA has issued a new decision on the “stop-time” rule, which affects an immigrant’s ability to show continuous physical presence. But the Board’s decision seems to be a poor attempt to defend the agency’s practice of not complying with the statute.
The general rule is that while applications for cancellation of removal require a period of continuous physical presence in the United States, the service of a Notice to Appear on an immigrant stops the clock.
The dispute is whether the Notice to Appear must inform the immigrant of the time and date of the hearing.
In Matter of CAMARILLO, 25 I&N Dec. 644 (BIA 2011), the BIA concluded that serving a notice to appear (NTA) on an immigrant triggers the “stop-time rule” at INA § 240A(d)(1), even if the notice to appear does not include the date and time of the initial hearing.
Section 239(a) of the INA requires a notice to appear to include the date and time of the hearing. INA § 239(a)(1)(G). And the stop time rule only applies if the immigrant was served a notice to appear “under section 239(a).” INA § 240A(d)(1). Thus , as the argument goes, when the notice to appear does not include all of the things required by 239(a)(1), the notice to appear has not been “served on” the immigrant, and the stop time rule cannot be triggered.
The BIA concluded that the reference in 240A(d)(1) to a notice to appear “under section 239(a)” was merely an attempt to define what document should be served and not what the document must say. But this reading is arbitrary – the statute is not ambiguous on what an NTA must include.
Much of the BIA’s reasoning in Camarillo is seriously suspect. The BIA said that the regulation at 8 C.F.R.§ 1003.18(b) (2011) supports this reading because it only requires the time and date of the hearing to be listed “where practicable.” But the regulation is a rule constructed by the Attorney General, not by Congress.
The Attorney General cannot thwart the will of Congress by issuing contrary, ultra vires regulations. And the statute is not silent on whether the date and time of the hearing must be included on the Notice to Appear, so the wiggle room provided by the regulation does not lend support to the Board’s interpretation of the statute.
The BIA’s discussion of the legislative history is also curious. In its discussion it failed to speak at all to the question of Congress’s intent as to the requirements of an effective notice to appear. Instead, the BIA highlighted that Congress intended with the stop-time rule to prevent immigrants from abusing the system. That is evident from the language of the stop-time rule itself, but this focus on the legislative history does not address whether Congress intended a notice to appear which lacks the hearing time, place, or date, to be the functional equivalent of a notice that is complete.
The BIA’s ruling permits the DHS to serve a notice to appear on an immigrant, even if it doesn’t actually notify her of the elements required by the statute, to disrupt her continuous residence so that she cannot apply for cancellation of removal. But the DHS does not have to immediately file the NTA with the immigration court.
In Matter of Camarillo, the DHS waited over two years to actually commence removal proceedings after serving the NTA. The legislative history of the stop-time rule talks about the commencement of proceedings, which only happens when the NTA is filed with the court. Report of the Committee on the Judiciary, House of Representatives, H.R. Rep. No. 104-469 (1996).
The BIA’s decision in Matter of Camarillo attempts to rely on this legislative history but ends up with a contrary result, and one not permitted by the statute. While Matter of Cisneros, 23 I&N Dec. 668 (BIA 2004) involved service of a “valid charging document,” the BIA has now gone a step further and held that serving an invalid charging document has the effect of ending the alien’s physical presence all the same.
This is an absurd result that hopefully the Circuit Courts will correct.