Matter of Castro-Lopez: Counting the Continuous Physical Presence for NACARA Cancellation

Introduction: The Matter of Castro-Lopez

Matter of Castro-LopezOn December 2, 2015, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Castro-Lopez, 26 I&N Dec. 693 [PDF version]. The BIA held that when an alien must meet a 10-year continuous physical presence requirement to satisfy the eligibility requirements for relief from removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) [see article], the 10-year period is measured from the time when the alien's most recently incurred ground of removal rather than from his or her first incurred ground of removal, “at least where that ground is … listed in 8 C.F.R. 1240.66(c)(1). In this article, we will examine the facts of the Matter of Castro-Lopez, the Board's reasoning in reaching its decision, and the effect of the precedent on applications for special rule cancellation of removal under NACARA.

Facts of the Case and Procedural History

The respondent in the Matter of Castro-Lopez was a native and citizen of El Salvador who had entered the United States without inspection in 1996. He had remained in the United States since that time. In 2012, the respondent was convicted of possession of cocaine in Maryland.

Based upon the respondent's cocaine conviction, the Department of Homeland Security (DHS) charged him with inadmissibility under sections 212(a)(6)(A)(i) (for being present without having been admitted or paroled) and 212(a)(2)(A)(i)(II) (for a controlled substance violation) [see article] of the Immigration and Nationality Act (INA). Consequently, the DHS placed the respondent in removal proceedings.

In the course of removal proceedings, the respondent applied for special rule cancellation of removal under NACARA. In general, an applicant for special rule cancellation of removal under NACARA must have been continuously physically present in the United States for 7 years. However, under 8 C.F.R. 1240.66(c), if an applicant is inadmissible under section 212(a)(2) of the INA [see article], he or she must have “been physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status constituting a ground for removal.”

The Immigration Judge found that the applicant had been continuously physically present for 10 years following his unlawful entry in 1996, and accordingly granted the respondent's application for cancellation of removal. The DHS appealed the decision to the BIA, arguing that the 10 years should have been counted from the respondent's 2012 conviction for possession of cocaine rather than from his unlawful entry in 1996.

Issues and Board's Analysis and Decision

The issue for the Immigration Judge was when to commence counting the respondent's 10 years of physical presence. If the 10 years were counted from the time at which the respondent “[assumed] a status constituting a ground for removal,” he would be eligible for NACARA cancellation because more than ten years had elapsed since he had entered the United States without being admitted or paroled. However, if the 10 years were counted from the time “immediately following the commission of the act [which rendered him inadmissible under section 212(a)(2)(A)(i)(II)],” then the respondent would not have been continuously physically present for 10 years and therefore would be ineligible for NACARA cancellation. The issue was particularly interesting in this case because the result would change depending on which of the respondent's two inadmissibility grounds started the clock. The Board noted that it found the language of the regulation to be ambiguous, specifically noting that it “does not address the situation where there is more than one act or event that renders an alien removable, as is the case with the respondent.”

Ultimately, the Board found that the Immigration Judge was in error in granting the application for special rule cancellation of removal under NACARA because the 10 years should be calculated from the most recently incurred ground of removal — in this case the 2012 controlled substance violation — rather than from when the respondent first assumed a status constituting a ground of removal (in this case in 1996).

The Board noted that the regulation in 8 C.F.R. 1240.66(c) “adopts the framework for suspension of deportation” that preceded the current cancellation of removal provisions. Accordingly, the Board cited to its precedent decision in the Matter of Romalez, 23 I&N Dec. 423, 427 (BIA 2002) [PDF version], which held that applicants for NACARA cancellation are subject to the 7- and 10-year continuous physical presence requirements consistent with suspension of deportation provisions, in holding that precedent decisions regarding suspension of deportation are applicable to NACARA cancellation.

The Board noted that in the Matter of Wong, 13 I&N Dec. 427 (BIA 1969) [PDF version], it had held that physical presence for purpose of determining eligibility for suspension of deportation “ran from the commission of the last deportable act.” The Board noted that this position was shared by the Second, Third, Sixth, and Eighth Circuits. The Board made specific note of the Eighth Circuit's decision in Patsis v. INS, 337 F.2d 733, 740 (8th Cir. 1964) [PDF version], in which the Eighth Circuit described the 10-year continuous physical presence period as a “testing period.” However, the Ninth Circuit had held in Fong v. INS, 302 F.2d 191 (9th Cir. 1962) [PDF version] that the 10 year should be measured from the “assumption of a status constituting a ground for deportation” (note that the Board explicitly disagreed with the Ninth Circuit in its decision in the Matter of Wong).

The Board stated that it found “no reason to alter our interpretation of the continuous physical presence requirement for special rule cancellation of removal” that it had adopted in the Matter of Wong with regard to suspension of deportation.

Decision

The Board sustained the DHS's appeal and remanded the record back to the Immigration Judge in order to allow the respondent to pursue alternative forms of immigration relief for which he may be eligible.

Conclusion and Note on Possible Limit of the Decision

It is worth noting that in a footnote, the Board stated that it did not address whether its holding is only applicable to criminal grounds set forth in 8 C.F.R. 1240.66(c)(1) (criminal or related grounds of inadmissibility found in section 212(a)(2)). Accordingly, it is possible that this decision would not apply when there are multiple inadmissibility grounds, but none of which are covered by section 212(a)(2).

The decision establishes that, for purpose of NACARA cancellation, 10 years of continuous physical presence will be calculated from the most recent act that caused inadmissibility when an inadmissibility ground covered under section 212(a)(2) is involved. This means that even if an applicant was continuously physically present in the United States for at least 10 years following his or her assuming an unlawful status in the United States, he or she will be ineligible for NACARA cancellation if 10 years have not elapsed since the commission of an offense that would render the applicant inadmissible under section 212(a)(2).

If an applicant is placed in removal proceedings, he or she should consult with an experienced immigration attorney for guidance on what forms of defense or relief from removal may be available.