Report CopyRight/DMCA Form For : Practice Advisory
Non LPR cancellation is a form of discretionary relief from removal that provides a path to lawful permanent residency to certain non citizens placed in removal proceedings on or after April 1 1997 8 Non LPR cancellation like its predecessor suspension of deportation 9 is meant to benefit undocumented immigrants
I INTRODUCTION 3, II LEGAL ELEMENTS OF NON LAWFUL PERMANENT RESIDENT CANCELLATION OF REMOVAL 4. A Continuous Physical Presence in the United States for At Least Ten Years 6. 1 T ermination of Continuous Presence 7, 2 Departures That Break Continuous Physical Presence 12. 3 Armed Forces Exception to the Continuous Physical Presence Requirement 20. B No Convictions Under INA 212 a 2 237 a 2 or 237 a 3 20. C Good Moral Character During the Ten Year Period Prior to the Entry of a Final Administrative Decision 24. D Exceptional and Extremely Unusual Hardship to the Applicant s U S Citizen or LPR Spouse Parent or Child 28. 1 U S Citizen or LPR Spouse Parent or Child Qualifying Relatives 28. 2 Exceptional and Extremely Unusual Hardship 31,3 Merits Favorable Discretion 36. III INELIGIBILITY FACTORS 38, IV RELEVANT COUNTRY CONDITIONS FOR THE TOP FIVE COUNTRIES OF ORIGIN FOR DACA RECIPIENTS 39. A Mexico 40,B El Salvador 41,C Guatemala 43,D Honduras 45. V CONCLUSION 47, 2 This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018. I INTRODUCTION, Given the uncertain future of the Deferred Action for Childhood Arrivals DACA program DACA. recipients fear possible removal from the United States 2 Following the Trump Administration s rescission of. the DACA program and Congress s lack of action to protect DACA recipients multiple federal courts have. issued preliminary injunctions staying the Trump Administration s plan to end DACA 3 However since then. seven states opposed to DACA have filed papers in federal court seeking to end the program further raising. the likelihood that the Supreme Court of the United States will eventually decide the issue 4 If the temporary. injunction extending the DACA program is lifted and DACA protection expires DACA recipients who do. not have a prior order of removal could be placed in removal proceedings pursuant to the Immigration and. Nationality Act INA 240 5 Even with the protection of the current injunction DACA recipients convicted. of certain criminal offenses could be detained and placed in removal proceedings 6 In preparation for potential. removal proceedings DACA recipients should assess their eligibility for cancellation of removal for non lawful. permanent residents non LPR cancellation 7, Non LPR cancellation is a form of discretionary relief from removal that provides a path to lawful permanent. residency to certain non citizens placed in removal proceedings on or after April 1 1997 8 Non LPR. cancellation like its predecessor suspension of deportation 9 is meant to benefit undocumented immigrants. 2 The White House Fact Sheet President Donald J Trump Restores Responsibility and the Rule of Law to Immigration Sept 5. 2017 https www whitehouse gov the press office 2017 09 05 president donald j trump restores responsibility and rule law. Memorandum from Elaine C Duke Acting Secretary Department of Homeland Security DHS Memorandum on Rescission of. Deferred Action for Childhood Arrivals DACA Sept 5 2017 https www dhs gov news 2017 09 05 memorandum rescission. 3 See National Immigration Law Center Status of Current DACA Litigation https www nilc org issues daca status current daca. litigation last updated Sept 6 2018, 4 Texas et al v United States of America No 18 00068 S D Tex filed May 1 2018 https www courtlistener com recap gov uscourts. txsd 1501682 gov uscourts txsd 1501682 1 0 pdf, 5 Michael D Shear Julie Hirschfeld Davis Trump Moves to End DACA and Calls on Congress to Act N Y Times Sept 5 2017. https www nytimes com 2017 09 05 us politics trump daca dreamers immigration html. 6 See CLINIC Bond Related Issues for DACA Recipients Mar 26 2018 https cliniclegal org sites default files Bond for DACA. holders pdf see also USCIS Guidance for the Referral of Cases and Issuance of Notices to Appear NTAs When Processing a Case. Involving Information Submitted by a Deferred Action for Childhood Arrivals DACA Requestor in Connection With a DACA. Request or a DACA Related Benefit Request Past or Pending or Pursuing Termination of DACA June 28 2018 https www. uscis gov sites default files USCIS Laws Memoranda 2018 2018 06 28 PM 602 0161 DACA Notice to Appear pdf. 7 In a national survey of 67 immigrant serving organizations that provide legal services 14 3 percent of those found to be eligible. for DACA were also found to be eligible for some other form of immigration benefit or relief In other words 14 3 percent. of individuals who were found to be eligible for DACA which provides temporary relief from deportation may now be on. the path towards lawful permanent residency Of these 14 3 percent 9 4 percent were found to be prima facie eligible for non. LPR cancellation based on the residency requirement and having a qualifying relative See Tom K Wong et al Paths to Lawful. Immigration Status Results and Implications from the PERSON Survey Volume 2 Number 4 Journal on Migration and Human. Security 287 2014 http jmhs cmsny org index php jmhs article view 37 Practitioners could also assess DACA recipients for. VAWA cancellation of removal which is beyond the scope of this practice advisory. 8 It is important for DACA recipients to know that only the immigration judge IJ has jurisdiction over non LPR cancellation. because unauthorized practitioners of law and even unscrupulous lawyers may try to defraud them by charging money to erroneously. file the application with U S Citizenship and Immigration Services USCIS These unauthorized practitioners commonly call. this attempted immigration benefit the ten year visa or the ten year law Others may recommend filing for asylum because if. the asylum claim is denied the applicant will be placed in removal proceedings which would allow the person to file for non LPR. cancellation However filing for asylum for the purpose of being placed in removal proceedings and pursuing cancellation has ethical. implications See American Immigration Lawyers Association Ethics Practice Advisory Ethical Considerations Related to Affirmatively. Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent. Resident Nov 1 2016 AILA Doc No 16110105 http www aila org infonet. 9 Individuals who were issued an Order to Show Cause prior to April 1 1997 may apply for suspension of deportation per former. INA 244 a Under former INA 244 a an IJ could exercise discretion to grant suspension of deportation to an individual who. This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018 3. who have deep roots or established affiliation 10 in the United States Likewise DACA was intended to benefit. individuals who came to the United States as children 11 or in other words undocumented immigrants who. have perhaps the deepest roots in the United States Indeed in most cases DACA recipients only have strong. ties to the United States and lack such ties to their country of birth Given the long U S residence of DACA. recipients many of them may qualify to apply for non LPR cancellation of removal if they are placed into. removal proceedings, This practice advisory seeks to assist practitioners working with DACA recipients who could be subject to. INA 240 proceedings in immigration court Section II provides an explanation of the non LPR cancellation. legal elements and application of these elements to the DACA context Section III discusses the grounds. of ineligibility for non LPR cancellation Section IV details country conditions information for the top five. countries of origin for DACA recipients for purposes of assessing non LPR cancellation relief. II LEGAL ELEMENTS OF NON LAWFUL PERMANENT RESIDENT CANCELLATION. OF REMOVAL, Non LPR cancellation allows non citizens12 to obtain lawful permanent residence if they establish the following. before an immigration judge IJ 13, Physical presence in the United States for a continuous period of no less than ten years. Good moral character during the ten year period prior to the entry of a final administrative decision in. No conviction of an offense that would make the applicant inadmissible or deportable under INA. 212 a 2 237 a 2 or 237 a 3, Exceptional and extremely unusual hardship to the applicant s U S citizen or LPR spouse parent or. Merit of a favorable exercise of discretion, An applicant for non LPR cancellation bears the burden of proving all the requisite facts pertinent to. proved that he or she had both seven years of continuous physical presence in the United States and good moral character during. all that time and also that deportation would cause extreme hardship to the applicant or the applicant s U S citizen or LPR spouse. parent or child Non LPR cancellation increased the relevant time period of continuous residence to ten years eliminated hardship. to oneself as a basis for relief and elevated hardship to one s U S citizen or LPR qualifying relative to exceptional and extremely. unusual hardship See Monica Gomez Note Immigration by Adverse Possession Common Law Amnesty for Long Residing Illegal. Immigrants in the United States 22 Geo Immigr L J 105 121 25 2007. 10 Hiroshi Motomura Americans in Waiting The Lost Story of Immigration and Citizenship in the United States. 80 114 2006, 11 Memorandum from Janet Napolitano Secretary DHS Exercising Prosecutorial Discretion with Respect to Individuals Who Came. to the United States as Children June 15 2012 rescinded https www dhs gov xlibrary assets s1 exercising prosecutorial. discretion individuals who came to us as children pdf. 12 A lawful permanent resident may apply for non LPR cancellation Matter of A M 25 I N Dec 66 74 76 BIA 2009 In Matter. of Koloamatangi 23 I N Dec 548 BIA 2003 the BIA found that the applicant never had LPR status because he had committed. fraud in obtaining his residency however the BIA determined that he could still apply for non LPR cancellation although the. fraud would be a factor in the good moral character assessment. 13 See Immigrant Legal Resource Center Non LPR Cancellation of Removal An Overview of Eligibility for Immigration Practitioners. June 2018 https www ilrc org sites default files resources non lpr cancel remov 20180606 pdf. 4 This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018. eligibility 14 The IJ will consider any credible evidence relevant to the application 15 The IJ has discretion to. determine what evidence is credible and the weight to give the evidence 16. Respondents wishing to apply for non LPR cancellation must complete and submit Form EOIR 42B to the. IJ 17 Note that if an applicant for non LPR cancellation submits other applications for relief from removal the IJ. will adjudicate concurrently the other applications for relief and if the applicant is granted asylum or adjustment. of status the IJ is required to deny cancellation as a matter of discretion 18 In practice IJs adjudicate asylum and. adjustment of status applications before the non LPR cancellation application For example if an applicant. submits a non LPR cancellation application and application for asylum under the INA the IJ will consider the. application for asylum first Only if the IJ denies the application for asylum under the INA will the IJ adjudicate. the non LPR cancellation application While the non LPR cancellation application is pending the applicant. can apply for an employment authorization document EAD based on the pending application 19. 4 000 Annual Cap The date the order granting non LPR cancellation becomes final is the date on which the. individual is recorded as having received lawful permanent residence in the United States The date the IJ. records the individual as receiving lawful permanent residence will depend on the availability of an immigrant. visa Currently a grant of non LPR cancellation is subject to an annual cap which is counted during the U S. government fiscal year Per INA 240A e 1 only 4 000 immigrant visas can be granted through non LPR. cancellation during each fiscal year Note that when Congress enacted this statutory provision as part of the. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 IIRIRA the number of IJs was. significantly lower than the current number 20 This low number of visas applicable to all IJs combined with. the higher demand for these visas has led to long backlogs As of November 2016 the Executive Office for. Immigration Review EOIR reported that 40 895 cases were awaiting decision 21 With the cap of 4 000 leading. to a backlog EOIR issued IJs guidelines and procedures for issuing denials based on statutory ineligibility and. reserving decisions 22, A recent EOIR Operating Policies and Procedures Memorandum and amended regulation states that IJs are. not required to reserve decision if the application is denied or pretermitted for any reason 23 The amended. 14 INA 240 c 4 8 CFR 1240 8 d,15 INA 240A b 2 D, 17 EOIR Form EOIR 42B https www justice gov sites default files pages attachments 2016 10 20 eoir42b pdf. 18 8 CFR 1240 21 c 2,19 8 CFR 274a 12 c, 20 There were 69 IJs in 1990 and 86 IJs in 1994 Executive Office for Immigration Review Board of Immigration Appeals. Streamlining 64 Fed Reg 56135 Oct 18 1999 https www uscis gov ilink docView FR HTML FR 0 0 0 1 0 0 0 54070 0. 0 0 60707 0 0 0 61450 html In 1998 there were 202 IJs Transactional Records Access Clearinghouse TRAC Immigration. Case Backlogs in Immigration Courts Expand Resulting Wait Times Grow June 18 2009 http trac syr edu immigration. reports 208 Today there are 351 IJs and EOIR anticipates hiring at least 75 more IJs by the end of 2018 DOJ Office of Public. Affairs Executive Office for Immigration Review Announces Largest Immigration Judge Investiture Since At Least 2010 Hiring. Times Reduced by More Than 50 Aug 16 2018 https www justice gov opa pr executive office immigration review. announces largest immigration judge investiture least. 21 See American Immigration Lawyers Association EOIR Stakeholder Meeting Agenda Unofficial AILA Notes Question No 10. Nov 17 2016 AILA Doc No 17041030 www aila org infonet. 22 In response to a FOIA request EOIR disclosed training materials from the June 11 13 2018 Legal Training Program. that included Procedures Due to the Cap on Non LPR Cancellation https www hoppocklawfirm com wp content. uploads 2018 08 Procedures Due Cap Non LPR Cancellation pdf. 23 Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal 81 FR. 86291 Nov 30 2016 https www gpo gov fdsys pkg FR 2016 11 30 pdf 2016 28590 pdf Memorandum from MaryBeth. Keller Chief Immigration Judge EOIR Operating Policies and Procedures Memorandum 17 04 Applications for Cancellation of. Removal or Suspension of Deportation that are Subject to the Cap Dec 20 2017 https www justice gov eoir file oppm17 04. This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018 5. regulation allows IJs and the BIA to issue final decisions denying cancellation applications without restriction. regardless of whether the annual limitation has been reached Under the final rule after the annual limitation. has been reached only grants would be required to be reserved. A Continuous Physical Presence in the United States for At Least Ten Years. Under INA 240A b 1 A a non LPR cancellation applicant must establish that he or she has been. continuously physically present in the United States for at least ten years Whether the respondent has. demonstrated that he or she has the requisite continuous physical presence is a factual issue for the IJ to. determine Note that the U S Court of Appeals for the Ninth Circuit has held that a parent s physical presence. cannot be imputed to a child 24, DACA Context General Continuous Physical Presence Requirement DACA required that the recipient. have entered the United States before age 16 continuously resided in the United States from June 15 2007. to the present and was under the age of 31 on June 15 2012 25 A grant of DACA therefore means that the. recipient has been present in the United States for more than ten years the amount of continuous physical. presence required for non LPR cancellation26 and thus likely has already sufficiently proved this residence to. USCIS DACA recipients can use the same supporting documentation pertaining to continuous residence that. they submitted with the initial DACA request to prove continuous physical presence when applying for non. LPR cancellation If they no longer have this information they could file a Freedom of Information Act FOIA. request with USCIS to obtain a copy of their immigration file. Furthermore DACA recipients should easily be able to prove continuous physical presence since receiving. DACA Thanks to DACA recipients have integrated into U S society and the economy and in turn amassed. documentary evidence of this integration For example youth approved for DACA were issued an EAD and. were able to obtain a Social Security number which together serve to establish identity and employment. eligibility for Form I 9 verification purposes Based on a 2017 national survey of DACA recipients 91 percent. of survey respondents reported being employed 5 percent reported having started their own business after. receiving DACA 27 16 percent reported purchasing their first home after receiving DACA and 65 percent. reported purchasing their first car since obtaining DACA 28 That same 2017 Center for American Progress study. found that 45 percent of DACA recipients reported attending school 29 Regardless of the fate of the DACA. program practitioners could advise DACA clients or those who would have been eligible for DACA to. download The rule and OPPM went into effect on January 4 2018 and applies prospectively Decisions that were reserved prior to. January 4 2018 are not affected, 24 Saucedo Arevalo v Holder 636 F 3d 532 9th Cir 2011. 25 The DACA requirements can be found on the USCIS website USCIS Consideration of Deferred Action for Childhood Arrivals. DACA https www uscis gov archive consideration deferred action childhood arrivals daca. 26 The term continuous physical presence for purposes of cancellation of removal is defined in the INA and is explained in greater. detail below, 27 This rate of business start ups is higher than that of both the American public as a whole at 3 1 percent and the entire. immigrant population at 3 6 percent See Tom K Wong et al Center for American Progress New Study of DACA Beneficiaries. Shows Positive Economic and Educational Outcomes Oct 18 2016 https www americanprogress org issues immigration. news 2016 10 18 146290 new study of daca beneficiaries shows positive economic and educational outcomes. 28 Center for American Progress DACA Recipients Economic and Educational Gains Continue to Grow Aug 28 2017 https www. americanprogress org issues immigration news 2017 08 28 437956 daca recipients economic educational gains continue grow. see also Migration Policy Institute A Profile of Current DACA Recipients by Education Industry and Occupation Nov 2017 https. www migrationpolicy org research profile current daca recipients education industry and occupation utm source Recent 20. Postings 20Alert utm medium Email utm campaign RP 20Daily providing additional details about DACA population. including fields of employment and degree of educational attainment. 29 S ee DACA Recipients Economic and Educational Gains Continue to Grow supra note 28. 6 This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018. continue gathering and safeguarding proof of physical presence. For DACA clients seeking non LPR cancellation in removal proceedings practitioners could try to obtain a. stipulation from Department of Homeland Security DHS attorneys that based on the records presented in. DACA applications the respondent has met the continuous physical presence requirements Notwithstanding. the evidence previously submitted in support of a DACA application DACA clients seeking non LPR. cancellation may also want to present additional evidence of continuous residence This will allow more time to. focus testimony on hardship or other contested requirements. Special Rules Governing Continuous Physical Presence Found at INA 240A d Although INA 240A b. 1 A indicates that continuous physical presence must accrue prior to the date of the application INA. 240A d lists three special rules on calculating continuous physical presence 1 termination of continuous. presence 2 treatment of certain breaks in presence and 3 continuity not being required for those who have. served honorably in the Armed Forces,1 T ermination of Continuous Presence. Continuous physical presence begins when the individual physically enters the United States and ends upon the. occurrence of one of several specified events whichever is earliest Section 240A d 1 of the INA provides as. Termination of Continuous Period For purposes of this section any period of continuous residence. or continuous physical presence in the United States shall be deemed to end A when the alien is. served a notice to appear under section 239 a or B when the alien has committed an offense referred. to in section 212 a 2 that renders the alien inadmissible to the United States under section 212 a 2 or. removable i e deportable from the United States under section 237 a 2 or 237 a 4 whichever is. earliest emphasis added, The ten years of physical presence must therefore have been accumulated prior to either 1 service of the. charging document Form I 862 Notice to Appear NTA or 2 the individual s committing a criminal offense. that makes him or her inadmissible or deportable Either of these actions stop the accumulation of continuous. physical presence even though the individual continues to be physically present in the United States This is. called the stop time rule,a NTA Stop Time Rule, DHS s service of an NTA on a non citizen triggers the stop time rule for cancellation applicants 30 Although. the NTA stop time rule has been in statutory force since April 1 1997 the U S Supreme Court clarified the. application of the NTA stop time in the June 2018 decision Pereira v Sessions 31. To understand the history of the NTA stop time rule practitioners should know the interplay between. the DHS issued NTA and the immigration court issued hearing notice First DHS issues and serves the. NTA on the non citizen Then DHS files the NTA with the immigration court which commences removal. proceedings 32 If the NTA lacked a place date and or time of the removal proceedings the immigration court. 30 See Matter of Cisneros 23 I N Dec 668 BIA 2004 a respondent s period of continuous physical presence in the United States is. deemed to end when he or she is served with the charging document that is the basis for the current proceeding. 31 Pereira v Sessions 138 S Ct 2105 2018, 32 8 CFR 1003 13 1003 14 a Although the language of INA 240A d 1 refers only to notices to appear Congress has. clarified that continuous physical presence for suspension of deportation purposes may also be terminated by service of an Order. This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018 7. would then send a Notice of Hearing in Removal Proceedings informing the respondent where and when the. hearing will be held The immigration court would also send a Notice of Hearing when it needed to change the. hearing date and time The hearing notice is thus conditioned upon DHS issuing the NTA properly serving. the NTA on the respondent and filing the NTA with the immigration court 33 This process is predicated on the. proper preparation and service of the NTA, For many years DHS has issued and served NTAs that lack the place date and or time of the removal. proceedings 34 Instead these NTAs included the phrase To be set in the space provided for the place date. and or time Although NTAs lacking the place date and or time of the removal proceedings do not comply. with INA 239 a 1 G the BIA held that such NTAs nonetheless stopped the clock for purposes of accruing. physical presence in cancellation cases 35 Some U S courts of appeal similarly held that an NTA lacking the INA. 239 a 1 G information stopped the clock 36 However a few U S courts of appeal held that an NTA without. the time and place information did not trigger the stop time rule but that the immigration court issued Notice. of Hearing in Removal Proceedings supplying that information cured the issue and triggered the stop time. On June 21 2018 the U S Supreme Court decided Pereira v Sessions In an 8 1 decision the Court concluded. that a notice that does not inform a non citizen when and where to appear for removal proceedings is not. a notice to appear under the statute and therefore does not trigger the stop time rule 38 The Court found. that this result was compelled by the plain language of INA 239 a 1 G which unambiguously defines an. NTA as giving notice of where and when the non citizen must appear for removal proceedings Thus the Court. concluded that NTAs that do not contain this minimal information do not meet the definition of an NTA for. purposes of the stop time rule, Pursuant to Pereira NTAs that do not specify the time and place of removal proceedings cannot trigger the. stop time rule under INA 240A d 1 Therefore unless and until DHS serves an individual with an NTA. that meets all the requirements of INA 239 a including the specific time and place of the hearing the. individual continues to accrue continuous and physical presence in the United States Also respondents in. removal proceedings whose accrual of continuous residence was purportedly cut off by the defective NTA. should now be eligible to seek cancellation provided they have been in the United States for at least ten years. and satisfy the other statutory elements for cancellation. Based on the reasoning in Pereira on what constitutes an NTA under INA 239 a many practitioners moved. to terminate removal proceedings based on jurisdictional arguments and many IJs terminated proceedings. Practitioners argued that the immigration court lacked jurisdiction because DHS had not properly initiated. to Show Cause in deportation proceedings See section 203 a 1 of the Nicaraguan Adjustment and Central American Relief Act. Pub L No 105 100 tit II 111 Stat 2193 2196 1997 amended by Pub L No 105 139 111 Stat 2644 1997 NACARA see. also Matter of Nolasco 22 I N Dec 632 BIA 1999,33 See Matter of Ordaz 26 I N Dec 637 BIA 2015. 34 D uring oral argument in Pereira Justice Kennedy asked the Assistant to the Solicitor General Fredrick Liu how many NTAs omit. the date and time of the hearing and Liu responded almost 100 percent Transcript of Oral Argument at 52 Pereira 138 S Ct. 2105 2018 https www supremecourt gov oral arguments argument transcripts 2017 17 459 1bn2 pdf. 35 See Matter of Camarillo 25 I N Dec 644 BIA 2011. 36 Moscoso Castellanos v Lynch 803 F 3d 1079 9th Cir 2015 accord Guzman Yuqui v Lynch 786 F 3d 235 2d Cir 2015 O Garro v. U S Att y Gen 605 F App x 951 953 11th Cir 2015 unpublished Gonzalez Garcia v Holder 770 F 3d 431 6th Cir 2014 Yi. Di Wang v Holder 759 F 3d 670 7th Cir 2014 Urbina v Holder 745 F 3d 736 4th Cir 2014. 37 See Orozco Velasquez v Att y Gen of U S 817 F 3d 78 3d Cir 2016 Guamanrrigra v Holder 670 F 3d 404 410 11 2d Cir 2012. per curiam holding that the later notice of hearing date triggered the stop time rule Popa v Holder 571 F 3d 890 896 97 9th. Cir 2009 Dabaneh v Gonzales 471 F 3d 806 810 7th Cir 2006. 38 Pereira 138 S Ct at 2110, 8 This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018. removal proceedings by filing a charging document that comports with INA 239 a and 8 CFR 1003 14 a. which states that j urisdiction vests and proceedings before an Immigration Judge commence when a. charging document is filed with the Immigration Court by the Service However on August 31 2018 the BIA. issued Matter of Bermudez Cota 27 I N Dec 441 BIA 2018 which distinguished Pereira on the jurisdiction. question The BIA held that an NTA that does not specify the time and place of a respondent s initial removal. hearing vests an IJ with jurisdiction over the removal proceedings and meets the requirements of INA 239 a. so long as a notice of hearing specifying this information is later sent to the respondent 39 Although Bermudez. Cota is limited to the narrow and specific question of jurisdiction DHS has been seeking broad application of. the holding to argue that the subsequent immigration court issued Notice of Hearing in Removal Proceedings. triggers the stop time rule Practitioners should be prepared to respond to this argument by highlighting that. Pereira contemplated and overruled the U S court of appeals and BIA case law relied on in Bermudez Cota. that allowed for this two step notification procedure to trigger the stop time rule Indeed anecdotes from. practitioners suggest that while IJs are less likely to terminate proceedings following Bermudez Cota IJs are. upholding and following Pereira on the stop time rule question by holding that the immigration court issued. Notice of Hearing in Removal Proceedings does not stop the clock As these issues will continue to be litigated. it is important to review the most current case law. For an in depth discussion of the Pereira v Sessions decision and strategies based on this watershed decision. please refer to the American Immigration Council and CLINIC s practice advisory Strategies and. Considerations in the Wake of Pereira v Sessions 40. DACA Context DACA recipients who have never left the country and have never been placed in removal. proceedings or had their removal proceedings terminated should have no problem proving continuous physical. presence However DACA recipients previously placed in removal proceedings face an NTA stop time rule. issue These DACA recipients likely have an order of removal an in absentia order of removal or have benefitted. from administrative closure Furthermore it is also possible that DHS merely served the NTA but never filed. the NTA with the immigration court, First practitioners should consider filing a motion to reopen on any basis that exists including pursuant to. Pereira v Sessions for DACA recipients with an order of removal based on an NTA that was missing the time. and place of removal proceedings Practitioners could argue that pursuant to Pereira v Sessions the previously. served NTA that led to the removal order did not stop the clock and the respondent is therefore now eligible for. non LPR cancellation A motion to reopen would be appropriate for those DACA recipients who have strong. non LPR cancellation cases and believe it is in their best interests to present the case A motion to reopen would. also be appropriate for those DACA recipients who want to challenge the removal order based on jurisdictional. grounds as discussed in the American Immigration Council and CLINIC s practice advisory Strategies and. Considerations in the Wake of Pereira v Sessions 41. 39 FOIA disclosures obtained by Matthew Hoppock suggest that EOIR took this position and issued this decision after initially. advising courts to reject NTAs that lacked the time and place of the hearing and restoring the Interactive Scheduling System. or ISS to allow DHS to access hearing schedules Mr Hoppock offers the disclosures and his analysis in his blog See Matthew. Hoppock Hoppock Law Firm Post Pereira the DOJ Chooses Harsh IJ Performance Metrics Over Compliance With Supreme Court. Mandate Sept 20 2018 https www hoppocklawfirm com post pereira the doj chooses harsh ij performance metrics over. compliance with supreme court mandate, 40 American Immigration Council and CLINIC Strategies and Considerations in the Wake of Pereira v Sessions Practice Advisory July. 20 2018 https cliniclegal org resources practice advisory strategies and considerations wake pereira v sessions. 41 Id See also Dan Kesselbrenner et al National Immigration Project and Immigrant Defense Project Practice Advisory. Challenging the Validity of Notices to Appear Lacking Time and Place Information July 5 2018 updated July 16 2018 http www. nationalimmigrationproject org PDFs practitioners practice advisories gen 2018 5July PereiraAdvisory pdf. This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018 9. Second practitioners could consider filing a motion to rescind and reopen removal proceedings pursuant to. Pereira v Sessions for DACA recipients with an in absentia order of removal based on an NTA that was missing. the time and or place of removal proceedings Practitioners could argue that pursuant to the reasoning in Pereira. v Sessions the previously served NTA was deficient because it did not provide notice of the removal proceedings. and the NTA that DHS filed with the court that led to the removal order did not vest the immigration court. with jurisdiction Practitioners should refer to CLINIC s practice advisory on Motions to Reopen for DACA. Recipients with Removal Orders for a discussion on challenging in absentia removal orders 42. Third following the Attorney General s Matter of Castro Tum practitioners should be prepared for the. possibility of DHS filing a motion to recalendar the previously administratively closed case Practitioners should. refer to CLINIC s practice pointer on Matter of Castro Tum for a discussion on this case and general strategies 43. One strategy noted in the practice advisory is to submit an opposition to the DHS motion to recalendar In. addition to filing an opposition to recalendar those DACA recipients with an NTA that was missing the. time and place of removal proceedings could consider a motion to terminate notwithstanding Bermudez Cota. Practitioners could highlight that Bermudez Cota ignores that Pereira deemed the plain language of INA. 239 a 1 unambiguous in its requirements of time and place and thus the BIA does not benefit from deference. per Chevron U S A Inc v Natural Resources Defense Council Inc 467 U S 837 1984 44 If the IJ recalendars. the case and the IJ does not issue a decision consider renewing the motion to terminate at the master calendar. hearing If the IJ denies termination the practitioner could submit an application for non LPR cancellation. arguing that the respondent has the required continuous physical presence in light of Pereira v Sessions If the. IJ denies the non LPR cancellation application the practitioner can appeal both the denial of the motion to. terminate and the non LPR cancellation, Fourth if DHS previously served an NTA on a respondent who now has DACA but DHS failed to file the. NTA with the immigration court that NTA would not trigger the stop time rule because proceedings were. never actually initiated Instead if DHS serves the DACA recipient with another NTA that includes the time. and location of the hearing and that is filed with the immigration court the date of service of the second NTA. will stop the clock and the DACA recipient can benefit from the longer time accrual It is unlikely that a DACA. recipient would have accrued ten years of continuous physical presence by the time DHS served the first NTA. if that service occurred soon after the DACA recipient entered the United States However by the time DHS. serves a second NTA the DACA recipient would have likely accrued the ten years of continuous physical. presence 45 It is uncommon for an NTA to be served on an individual but not filed with the immigration court. As such few DACA recipients will be able to propose this argument 46. 42 CLINIC Practice Advisory Motions to Reopen for DACA Recipients with Removal Orders Mar 13 2018 https cliniclegal org. sites default files Motion to Reopen PA 1 pdf, 43 CLINIC Practice Pointer Matter of Castro Tum 27 I N Dec 271 AG 2018 June 5 2018 https cliniclegal org sites default. files Castro Tum Practice Pointer Final 6 5 2018 pdf. 44 Pereira 138 S Ct at 2113 14 Furthermore Justice Kennedy expressed concern that lower courts were giving a cursory analysis. to ascertaining congressional intent and reflexive deference to the BIA s position when applying Chevron deference Id at 2120. Kennedy J concurring,45 Matter of Ordaz 26 I N Dec 637 BIA 2015. 46 In addition to raising Pereira arguments about the stop time rule DACA recipients could also request prosecutorial discretion. from DHS in the form of repapering Repapering in this context means that DHS would be willing to proceed with a new NTA. instead of relying on the former NTA This process is beneficial for the respondent because it would allow for the accrual of the. required continuous physical presence This prosecutorial discretion option should not be confused with IJ repapering set forth in. the proposed regulation 65 Fed Reg 71273 Nov 30 2000 that was never finalized While prosecutorial discretion is rarely being. offered under the Trump administration practitioners could remind DHS that the president himself has voiced his strong support. for Dreamers Trump I Have Great Love for DACA Dreamers BBC News Sep 6 2017 https www bbc com news av world us. canada 41170097 trump i have great love for daca dreamers. 10 This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018. b Commission of an Offense Stop Time Rule, The commission of an offense portion of the stop time rule at INA 240A d 1 references the commission. of an offense referred to in section 212 a 2 that renders the non citizen inadmissible or deportable therein. referencing both sections 212 and 237 of the INA 47 The BIA has held that the plain language of section. 240A d 1 B states that as a prerequisite an offense must be referred to in section 212 a 2 of the INA in. order to stop the accrual of time 48 Therefore offenses included in section 237 a 2 that are not referred to in. section 212 a 2 are not considered stop time offenses Practitioners could separately evaluate these offenses to. determine if these offenses otherwise bar the client from non LPR cancellation eligibility discussed in section. II B For example in the context of non LPR cancellation a firearms offense would not stop the clock but. would be a bar to eligibility pursuant to INA 240A b 1 C. Under INA 212 a 2 the stop time rule is triggered by the following. A crime involving moral turpitude CIMT, Violation of or conspiracy or attempt to violate any law or regulation relating to a controlled substance. Two or more offenses of any type where the aggregate prison sentence is five years. Controlled substance traffickers including those offenses where an immigration officer has reason to. believe THE NONCITIZEN is a drug trafficker, Any person who is coming to the United States solely principally or incidentally to engage in. prostitution or has engaged in prostitution within ten years of the date of an application for a visa. admission or adjustment of status, Any person involved in serious criminal activity who has asserted immunity from prosecution. Any person who an immigration officer has reason to believe is a significant trafficker in persons and. Any person who an immigration officer has reason to believe has engaged in or is engaging in money. laundering, The date of commission of an INA 212 a 2 offense and not the later date of conviction of the offense. triggers the stop time rule This is true even if the offense was committed prior to the enactment of IIRIRA 49. A section 212 a 2 offense can still stop the clock where the offense was not charged in the NTA and the. individual was not found inadmissible or removable for it 50 Further even if there were no criminal charges or. a conviction the admission of acts constituting the essential elements of such an offense under section 212 a. 2 may trigger the stop time rule 51 The BIA has established three requirements that must be met to prove a. 47 Matter of Campos Torres 22 I N Dec 1289 BIA 2000 en banc concluding that because a firearms charge under section 237 a. 2 C of the Act was not an enumerated ground of inadmissibility it therefore did not trigger the stop time rule. 48 Id at 1292 quoting INS v Cardoza Fonseca 480 U S 421 432 n 12 1987. 49 Matter of Robles 24 I N Dec 22 BIA 2006 reaffirming Matter of Perez 22 I N Dec 689 BIA 1999 en banc As a practical. matter since DACA recipients had to be born after June 15 1981 it is doubtful that many would be affected by this rule. 50 Matter of Jurado 24 I N Dec 29 30 32 BIA 2006, 51 Id at 31 We note that an alien need not have been convicted of an offense under section 212 a 2 of the Act in order for the. stop time rule to apply Congress did not require that the appropriate prosecuting authorities have previously charged an alien. with a referenced offense in order to invoke the stop time provision of section 240A d 1 B of the Act Relatedly two U S. courts of appeal have held that the stop time rule is triggered by the commission of an offense even where the conviction was. subsequently expunged See Saleh v Gonzales 495 F 3d 17 26 2d Cir 2007 Alves v Keisler 253 F App x 390 5th Cir Nov 7. 2007 unpublished per curiam, This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018 11. valid admission of a crime for immigration purposes 52 First the admitted conduct must constitute the essential. elements of a crime in the jurisdiction where it occurred 53 Second the respondent must have been provided. with the definition and essential elements of the crime prior to the admission 54 Third the admission must have. been voluntary 55 Individuals should be aware that a valid admission of a crime could occur during the removal. proceedings and should therefore guard against admitting to a section 212 a 2 offense while in proceedings. In addition to applying the stop time rule the practitioner will need to determine whether the conviction. renders the applicant ineligible for cancellation as discussed in section II B. Exceptions Commission or conviction of a CIMT will not cut off accrual of continuous residence or physical. presence if it falls within one of the INA 212 a 2 A ii exceptions Under these exceptions certain. offenses committed while the individual is under 18 or considered petty offenses 56 do not make the individual. inadmissible on the basis of a conviction or commission of a CIMT and therefore do not cut off the accrual of. continuous presence These two section 212 a 2 A ii exceptions allow time to continue to accrue through the. commission of one crime and up until the commission of a second crime that is considered a CIMT 57 However. some convictions that would not terminate continuous physical presence on account of the petty offense. exception may nonetheless render the individual ineligible for non LPR cancellation as discussed in section II B. DACA Context DACA recipients may have criminal offense stop time issues This is because DACA. crime bars do not necessarily overlap with grounds of inadmissibility and deportability For example a theft. misdemeanor offense with a jail sentence of fewer than 90 days and with a maximum possible sentence of a. year or less would not be a disqualifying crime for DACA purposes but would be a CIMT 59 Whether or not. a CIMT offense stops the clock would depend on the applicability of the petty offense exception 60 Further. DACA recipients with section 212 a 2 inadmissibility issues could have received discretionary approvals. For further information on this topic refer to section II B of this practice advisory and keep in mind that only. offenses listed in section 212 a 2 will trigger the stop time rule. 2 Departures That Break Continuous Physical Presence. Certain departures from the United States will break rather than terminate continuous presence 61 A break. differs from termination in that the clock can begin to accrue a new ten year period after the break 62 As. 52 See Matter of K 7 I N Dec 594 598 BIA 1957 Matter of J 2 I N Dec 285 BIA 1945. 53 Matter of J 2 I N Dec at 287 288,56 Matter of Garcia 25 I N Dec 332 BIA 2010. 57 Matter of Deanda Romo 23 I N Dec 597 BIA 2003,58 Matter of Cortez 25 I N Dec 301 BIA 2010. 59 See Matter of Diaz Lizarraga 26 I N Dec 847 BIA 2016 holding that a theft offense is a crime involving moral turpitude if. it involves a taking or exercise of control over another s property without consent and with an intent to deprive the owner of his. property either permanently or under circumstances where the owner s property rights are substantially eroded Note that the. U S Courts of Appeal for the Ninth Circuit and the Second Circuit have held that Matter of Diaz Lizarraga is not retroactive See. Garcia Martinez v Sessions 886 F 3d 1291 9th Cir 2018 and Obeya v Sessions 884 F 3d 442 2d Cir 2018 respectively. 60 Practitioners should remember that a CIMT offense that does not stop the clock may count as conviction under INA 212 a 2. 237 a 2 or 237 a 3 in which case the CIMT would present a bar to non LPR cancellation See INA 240A b 1 C. 61 In Matter of Mendoza Sandino 22 I N Dec 1236 1240 BIA 2000 the BIA discussed the difference between a break in. continuous physical presence and the end of continuous physical presence stating that Congress has distinguished between. certain actions that end continuous physical presence i e service of a charging document or commission of a specified crime and. certain departures from the country that only temporarily break that presence. 62 See e g Nelson v Att y Gen 685 F 3d 318 3d Cir 2012 applying reasoning in Matter of Mendoza Sandino 22 I N Dec 1236. 12 This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018. discussed above termination of continuous presence via the stop time rule does not allow the continuous. presence period to continue or to re start following service of the NTA or commission of a certain crime with. some exceptions 63 Unlawful re entry following an order of exclusion deportation or removal and being placed. in new section 240 proceedings is an exception Reentries following an order of voluntary departure as discussed. in section II A 2 b infra is another exception 64 Note that while the statute differentiates between a break and. termination the BIA and the U S courts of appeal often use these terms interchangeably. a Departures That Lead to Absences from the United States for a Certain Amount of Time. Section 240A d 2 of the INA specifies the length of absences that break continuous presence. Treatment of certain breaks in presence An alien shall be considered to have failed to maintain continuous. physical presence in the United States under subsections b 1 and b 2 if the alien has departed from. the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. emphasis added, A period of continuous physical presence is thus cut off or broken by a departure for a single period of more. than 90 days or by periods of 180 days in the aggregate 65 Conversely an individual who departs the United. States for a period of fewer than 90 days or for any periods that in the aggregate do not exceed 180 days does. not break continuous physical presence 66, The break in continuous physical presence analysis is only relevant to those individuals who departed the. United States at any point following the initial entry. DACA Context While it is no longer doing so DHS had discretion to grant advance parole to DACA. recipients traveling outside the United States for educational employment or humanitarian purposes 67 From. 2012 to 2015 USCIS approved advance parole for 19 943 DACA recipients 68. Most DACA recipients who traveled abroad on advance parole likely departed for fewer than 90 days given. that DACA based advance parole usually authorized travel for a short period of time 69 DACA recipients who. traveled abroad on advance parole will have concrete proof issued by the U S government that his or her absence. lasted fewer than 90 days For example the DACA recipient could submit plane tickets a passport stamp and. a date stamped copy of the advance parole itself assuming the DACA recipient was provided with a stamped. copy upon entry as concrete proof of the duration of his or her absence 70 DACA recipients who traveled outside. BIA 2000 to distinguish between an end or termination of continuous physical presence and a break in continuous physical. presence see also Ram v INS 243 F 3d 510 517 18 9th Cir 2001 Unlike the title of INA section 240A d 1 which connotes. finality the term breaks suggests that under certain circumstances set forth in INA section 240A d 2 the clock can stop and. then restart, 63 Compare Matter of Mendoza Sandino 22 I N Dec 1236 BIA 2000 with Matter of Cisneros 23 I N Dec 668 BIA 2004. 64 See Matter of Cisneros 23 I N Dec 668, 65 INA 240A d 2 There is an exception to this rule for certain Violence Against Women Act VAWA cancellation applicants. VAWA 2005 Pub L No 109 162 119 Stat 2960 2006, 66 Note that the Fleuti doctrine see Rosenberg v Fleuti 374 U S 449 1963 relating to brief casual and innocent departures did not. survive the enactment of the IIRIRA as a judicial doctrine See Matter of Collado 21 I N Dec 1061 1065 BIA 1998. 67 USCIS Instructions for Application for Travel Document Form I 131 Dec 23 2016 https www uscis gov i 131. 68 USCIS Fiscal Year 2016 Report to Congress Advance Parole Documents at 6 Jan 6 2017 https www dhs gov sites default. files publications USCIS 20 20USCIS 20Advance 20Parole 20Documents pdf. 69 See e g Educators for Fair Consideration Traveling with Advance Parole Through DACA http www e4fc org images E4FC. TravelingAbroad pdf, 70 CBP Form I 94 Arrival Departure Record Apr 24 2014 https www cbp gov document forms form i 94 arrivaldeparture. record CBP provides records for up to five years back Parole records include a notation that indicates where the last entry was. This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018 13. the United States without advance parole may not have evidence that the departure lasted fewer than 90 days In. such cases DACA recipients must think creatively as to how to meet this burden of proof and provide credible. testimony to establish that a single departure lasted fewer than 90 days or multiple departures lasted fewer than. 180 days in the aggregate Although at least one U S court of appeals has held that a non citizen s recollection. is not required to be exact regarding dates of departures from the United States that were fewer than 180 days. in the aggregate the standard is a preponderance of the evidence 71 Even if the IJ deems continuous presence. broken due to a single departure over 90 days or multiple departures that lasted more than 180 days in the. aggregate the DACA recipient may still be eligible for non LPR cancellation if ten years have passed since the. last return, DACA recipients who departed on advance parole for more than 90 days in a single period or for more than. 180 days in the aggregate may argue that travel on advance parole was not a departure contemplated by. Congress when enacting INA 240A d 2 72 What Congress contemplated in enacting INA 240A d 2. requires brief review of its statutory predecessor suspension of deportation at former section 244 a Overall in. replacing suspension of deportation provisions at former section 244 a with non LPR cancellation Congress. sought to deter unauthorized immigration to the United States by curbing incentives for undocumented. individuals to extend their stays in the United States and prolong their deportation cases in order to gain. immigration benefits 73 Specifically Congress wanted to end the accrual of time for the seven years continuous. physical presence requirement for suspension of deportation once deportation proceedings commenced which. Congress addressed in non LPR cancellation via the NTA stop time rule 74. In light of this legislative background trips abroad by DACA recipients pursuant to advance parole do not. present the concerns of incentivizing unauthorized immigration and encouraging abuses of immigration law. Advance parole is parole that has been requested and authorized in advance based on an expectation that the. individual will be presenting himself or herself for inspection without a valid visa in the future 75 Advance parole. can be requested from abroad or at a port of entry but typically it is sought from within the United States. by persons who want to leave temporarily and return to the status they have currently 76 By granting advance. parole DHS takes a humanitarian measure to assure the individual that he will be paroled back into the United. States upon return under prescribed conditions if he cannot establish that he is admissible at that time 77 As. the BIA held in Matter of Arrabally and Yerrabelly i n short an undocumented individual s departure under. a grant of advance parole is qualitatively different from other departures because it presupposes both that he. will be permitted to return to the United States thereafter and that he will upon return continue to pursue the. adjustment of status application he filed before departing 78. While DACA recipients did not seek advance parole pursuant to a pending adjustment of status application as. the respondents in Matter of Arrabally and Yerrabelly did the same rationale applies as DACA recipients traveled. pursuant to parole, 71 Lopez Esparza v Holder 770 F 3d 606 7th Cir 2014. 72 Cf Matter of Arrabally and Yerrabelly 25 I N Dec 771 BIA 2012 holding that a departure under advance parole does not trigger. the unlawful presence bar under INA 212 a 9 B i II and discussing advance parole as a distinct benefit for which the alien. must demonstrate his eligibility and worthiness, 73 See Matter of Romalez Alcaide 23 I N Dec 423 BIA 2002 citing H R Rep No 104 828 1996 and H R Rep No 104 469 I. 74 See H R Rep No 104 469 I at 390 1996 noting that s uspension of deportation is often abused by aliens seeking to delay. proceedings until 7 years have accrued even after they have been placed in deportation proceedings. 75 See 8 CFR 212 5 f providing for the advance authorization of parole. 76 See Matter of G A C 22 I N Dec 83 88 BIA 1998, 78 Matter of Arrabally and Yerrabelly 25 I N Dec 771 778 BIA 2012. 14 This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018. on advance parole pursuant to their DACA and would return to the United States to continue to renew DACA. In fact DACA recipients could only seek advance parole once USCIS approved DACA and not while it was. merely pending 79 Not only were DACA recipients lawfully present80 when they departed on advance parole. advance parole does not encourage unauthorized immigration Instead it encourages those who are already in. the United States and have sought or been granted a form of status or protection to seek the U S government s. permission to enter the United States Therefore advance parole is a departure and re entry approved by. DHS rather than unauthorized departure and entry without inspection 81 Moreover DACA advance parole. required several layers of government approval starting with the DACA approval In presenting this distinction. practitioners could remind IJs and the BIA that it is within their discretion to determine if advance parole. counts as a presence breaking departure from the United States 82. Furthermore it is unlikely that Congress contemplated DACA advance parole within the meaning of INA. 240A d 2 since at the time of that statute s enactment DACA did not exist Instead a similar temporary. protection that did exist at the time was Temporary Protected Status TPS Although advance parole was. available to those with TPS at the time Congress enacted INA 240A d 2 83 TPS recipients did not face. active removal proceedings or the need to apply for non LPR cancellation due to TPS protections Not viewing. advance parole as a relevant option for those potentially eligible for non LPR cancellation Congress had no. reason to include advance parole as an express exception to INA 240A d 2 This provides another rebuttal to. DHS arguments or IJ findings that travel pursuant to advance parole constitutes a break in continuous physical. b Departures Pursuant to a Formal Documented Process 84. Continuous physical presence breaks when the individual departs the United States under the threat of a. formal documented process such as a formal exclusion order of expedited removal offer and acceptance of. the opportunity to withdraw an application for admission or some other formal documented process pursuant. to which the individual was determined to be inadmissible to the United States 85 Such a formal documented. process could have taken place inside the United States before an IJ or administered at the border or port of. entry by DHS 86 Of course the IJ removal order or voluntary departure itself would have terminated continuous. 79 See USCIS Frequently Asked Questions DHS DACA FAQs Question 57 https www uscis gov archive frequently asked. questions last updated Mar 8 2018 If USCIS has decided to defer action in your case and you want to travel outside the United. States you must apply for advance parole by filing a Form I 131 Application for Travel Document and paying the applicable fee. 80 USCIS has stated that those with deferred action including DACA recipients are lawfully present See USCIS Frequently Asked. Questions DHS DACA FAQs Question 1 https www uscis gov archive frequently asked questions last updated Mar 8. 2018 An individual who has received deferred action is authorized by DHS to be present in the United States and is therefore. considered by DHS to be lawfully present during the period deferred action is in effect. 81 See 8 CFR 212 5, 82 See e g Garcia v Holder 732 F 3d 308 312 4th Cir 2013 finding that Congress did not intend to eliminate the BIA s. discretionary authority to define which departures terminate an alien s presence and citing Matter of Avilez Nava 23 I N Dec 799. 83 8 CFR 244 15, 84 Departures of 90 or fewer days during one trip or fewer than 180 days in the aggregate can break continuous physical presence if. the trip s fall within this category For example a departure of 90 or fewer days will break continuous physical presence if it is the. result of enforcement of an order of removal expedited removal or voluntary departure under current law or an order of deportation. under prior law See Landin Zavala v Gonzales 488 F 3d 1150 1153 9th Cir 2007 Juarez Ramos v Gonzales 485 F 3d 509 511. 9th Cir 2007 Matter of Romalez Alcaide 23 I N Dec 423 BIA 2002 see also Mrvica v Esperdy 376 U S 560 568 1964. stating that the obvious purpose of deportation is to terminate residence. 85 Matter of Romalez Alcaide 23 I N Dec 423 BIA 2002. 86 Similarly a departure following a conviction for illegal entry under INA 275 a 1 also breaks continuous physical presence. Matter of Velasquez Cruz 26 I N Dec 458 BIA 2014, This resource provided by the Catholic Legal Immigration Network Inc For more resources visit cliniclegal org Updated Oct 12 2018 15.