Third Circuit Court of Appeals
Filed: March 11, 2016
2016 U.S. App. LEXIS 4569
Respondent Milton Orozco-Velasquez arrived in the United States without having been admitted or paroled in September 1998 or February 1999. On May 9, 2008, Orozco-Velasquez received a Notice to Appear (NTA) that did not specify a date to appear before the Immigration Judge and stated that respondent should appear in Elizabeth, New Jersey. On April 7, 2010 Orozco-Velasquez received another NTA, which stated that respondent should appear in Newark, New Jersey. On April 12, 2010, Orozco-Velasquez received a Notice of Hearing specifying the time.
Orozco-Velasquez applied for Cancellation of Removal arguing that his 2010 NTA superseded the 2008 NTA so as to fulfill the 10-year physical presence requirement of Non-LPR Cancellation of Removal, and requested that the removal proceedings be closed. Pursuant to Board precedent, Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011), the Board held that an NTA that does not contain a date and time was “not defective” and “thus provided adequate notice” to trigger the “stop-time” rule. Orozco-Velasquez appealed, challenging Camarillo.
The Third Circuit held that the Board’s holding in Camarillo was not worthy of Chevron deference because the statute, 8 U.S.C. § 1229(a), which specifies the required information on an NTA is not ambiguous. Rather, the statute was clear about the information necessary to be included in the NTA in order to trigger the “stop-time” rule. Such a conclusion was critical for Orozco-Velasquez because to be eligible for Non-LPR Cancellation of Removal, Orozco-Velasquez needed to obtain 10-years of continuous physical presence. Under the “stop-time” rule, at § 240A(d)(1) of the Immigration and Nationality Act (INA), “any period of continuous residence or continuous physical presence in the United States shall be deemed to end…when the alien is served a notice to appear…” Thus, whether the incomplete 2008 NTA satisfied the statutory requirements so as to trigger the “stop-time” rule was critical in determining whether Orozco-Velasquez met the 10-years continuous physical presence requirement for Non-LPR Cancellation of Removal.
The Third Circuit found that the NTA, under 8 U.S.C. § 1229(a)(1), necessarily requires specification of the “time and place at which the proceedings shall be held.” The Court found that the word “shall” in the statute is a requirement, and in the absence of another conflicting canon of statutory construction such a requirement is mandatory. Because the statute requires that an “alien [be] served a notice to appear under 8 U.S.C. § 1229(a)” the statute also “compels” the government to follow all the statutory stipulations set forth for an NTA, which includes stating the time and place of the hearing. Until the government has set forth all such stipulations, the NTA “will not stop the…clock” for purposes of Cancellation of Removal eligibility. Here, the government served a proper NTA too late, and so the government did not affect Orozco-Velasquez’s eligibility for Cancellation of Removal.
The Third Circuit emphasized that the NTA is not “enigmatic,” finding that the NTA’s purpose is to provide notice to the noncitizen. The Third Circuit noted that here, just a few months before the “stop-time” rule would apply, Orozco-Velasquez was given an NTA which was devoid “fundamental, statutorily required information and misinforming him of the proceedings’ location.” By the Board’s logic, the Third Circuit concluded that the agency might treat an NTA containing no information as a trigger for the stop-time rule, a result which the Third Circuit finds to be “counter-textual.”
Please note that the “stop-time” rule applies to both the 7-years continuous residence requirement under LPR Cancellation of Removal (INA § 240A(a)(2)) and the 10-years continuous physical presence requirement under Non-LPR Cancellation of Removal (INA § 240A(b)(1)(A)); thus, the Third Circuit’s holding could apply under both statutory contexts. In support of this conclusion, is the fact that the Third Circuit used the words “residence” and “continuous physical presence” interchangeably throughout the opinion.