Mejia-Castanon v. Attorney Gen. of the United States

931 F.3d 224

Pablo Antonio MEJIA-CASTANON, Petitioner

v.ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

No. 17-2901

United States Court of Appeals, Third Circuit.

Argued: May 30, 2018

Opinion Filed: July 25, 2019

OPINION OF THE COURT

SCIRICA, Circuit Judge

Aliens who are unlawfully present in the United States and ordered removed may apply for cancellation of that removal if they, among other things, have maintained a continuous physical presence in the United States for at least ten years and have been a person of good moral character for such period. Congress modified the calculation of the physical presence requirement when it amended the Immigration and Nationality Act in 1996: Under the "stop-time rule," the physical presence period ends when the Department of Homeland Security serves the alien with a notice to appear.¹ As a result, aliens cannot continue to accrue physical presence time during the pendency of (often lengthy) removal proceedings and appeals. At issue is whether the stop-time rule applies to the time period during which an alien must exhibit good moral character.

Petitioner Pablo Antonio Mejia-Castanon maintains that it does, such that events occurring after the service of a notice to appear cannot be used to evaluate his good moral character. This time distinction is critical to Petitioner’s application for cancellation of removal because he admitted to helping family members illegally enter the United States during the pendency of his application, a transgression that indisputably undermines his ability to demonstrate good moral character. Under Petitioner’s interpretation, the stop-time rule operates to exclude these events from the evaluation of his moral character. But if the stop-time rule does not truncate the good moral character window, he will not satisfy the good moral character requirement and will be statutorily ineligible for cancellation of removal.

The Board of Immigration Appeals rejected Petitioner’s reading of the statute, and two courts of appeals have deferred to the Board’s interpretation under Chevron . For the reasons that follow, we agree with our sister circuits and hold that the Board’s interpretation is entitled to Chevron deference. Under that interpretation, the stop-time rule does not apply to the good moral character requirement. Instead, the relevant time period on which to evaluate an alien’s good moral character is the ten-year period prior to the final administrative decision on an alien’s application for cancellation of removal. We will deny the petition.

I.

Under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. , an alien who enters the United States without permission, and who is not admitted or paroled, is removable. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(A). The Department of Homeland Security may remove such an alien by initiating removal proceedings before an Immigration Judge, see id. § 1229a, and providing written notice to the alien by serving him with a "notice to appear," id. § 1229(a)(1). The notice to appear informs the alien, among other things, of the "time and place" of the removal hearing, the "legal authority under which the proceedings are conducted," and the "charges against the alien." Id. § 1229(a)(1)(G)(i), (B), (D). An alien served with a notice to appear may challenge his removal on the merits or admit his removability while seeking certain discretionary relief.

A.

Prior to amendments in 1996, one type of discretionary relief an alien could seek was suspension of deportation. The INA provided that "the Attorney General may, in his discretion, suspend deportation" of an alien if he (1) had "been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application;" (2) "prove[d] that during all of such period he was and is a person of good moral character;" and (3) was "a person whose deportation would ... result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1254(a)(1) (1994) ; see also I.N.S. v. Chadha , 462 U.S. 919, 923–24, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). "Even if these prerequisites [we]re satisfied," however, "it remain[ed] in the discretion of the Attorney General to suspend, or refuse to suspend, deportation." I.N.S. v. Rios-Pineda , 471 U.S. 444, 446, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985) (citations omitted).

Under this pre-1996 formulation, the Board of Immigration Appeals interpreted the physical presence and good moral character time periods to be identical. See In re Ortega-Cabrera , 23 I. & N. Dec. 793, 794 (B.I.A. 2005) (citations omitted). And because the Board construed "such application" in the phrase "immediately preceding the date of such application," 8 U.S.C. § 1254(a)(1) (1994), to be "a continuing one," the seven-year time period for both "continu[ed] to accrue" through the Board’s final administrative decision on an alien’s application for cancellation of removal. Ortega-Cabrera , 23 I. & N. Dec. at 794. In other words, an alien could accrue the required seven years of physical presence during the pendency of her removal proceedings and appeals, and her moral character would also be evaluated until the final adjudication of her application.

This statutory structure was problematic, however, because it created a "substantial incentive" for those aliens facing deportation "to prolong litigation" and to "stall[ ] physical departure in the hope of eventually satisfying" the seven-year requirement. Rios-Pineda , 471 U.S. at 450, 105 S.Ct. 2098. Congress believed suspension of deportation was being abused and exploited, particularly by aliens seeking to "accrue time toward the seven year threshold even after they ha[d] been placed in deportation proceedings." H.R. Rep. 104-469, at 122 (1996); see also In re Cisneros , 23 I. & N. Dec. 668, 670 (B.I.A. 2004) ("[A]liens in deportation proceedings had knowingly filed meritless applications for relief or otherwise exploited administrative delays in the hearing and appeal process in order to ‘buy time,’ during which they could acquire a period of continuous presence that would qualify them for forms of relief that were unavailable to them when proceedings were initiated."). Congress also believed the " ‘extreme hardship’ standard"—the final statutory requirement for suspension of deportation––"ha[d] been weakened by recent administrative decisions." H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.).

B.

To address these concerns, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See Pub. L. No. 104–208, Div. C, Tit. III, Subtit. A, sec. 304(a)(3), § 240A, 110 Stat. 3009-594 to 3009-596. Relevant here, IIRIRA amended the INA to its current form by replacing suspension of deportation with a new and more limited form of relief called "cancellation of removal." See 8 U.S.C. § 1229b ; see also H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.). And IIRIRA created the stop-time rule, designed to prevent an alien from accruing physical presence time during the pendency of immigration proceedings.

1.

IIRIRA introduced significant differences for aliens seeking relief from removal: Congress extended the length of time required for an alien to be physically present from seven to ten years, excluded from eligibility those aliens who were convicted of certain offenses under the INA, and strengthened the hardship requirement from "extreme hardship" to an "exceptional and extremely unusual hardship." Compare 8 U.S.C. § 1254(a)(1) (1994) (repealed), with 8 U.S.C. § 1229b(b)(1)(A)–(D). See also H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.) ("The managers have deliberately changed the required showing of hardship from ‘extreme hardship’ to ‘exceptional and extremely unusual hardship’ to emphasize that the alien must provide evidence of harm to his spouse, parent, or child substantially beyond that which ordinarily would be expected to result from the alien’s deportation.").

Under current law as adopted in IIRIRA, to be eligible for cancellation of removal an alien must: (1) 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;" (2) have "been a person of good moral character during such period;" (3) have "not been convicted " of certain offenses under the INA, including crimes involving moral turpitude, certain felonies, and document fraud; and (4) must "establish[ ] that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1229b(b)(1)(A)–(D) (emphasis added).² If an alien satisfies these four requirements, an Immigration Judge may grant cancellation of removal after balancing "the favorable and adverse factors" of the alien’s particular case. In re A-M- , 25 I. & N. Dec. 66, 76 (B.I.A. 2009).

2.

To eliminate the incentive to delay immigration proceedings to accrue physical presence time, IIRIRA created the stop-time rule in a separate subsection titled "Special rules relating to continuous residence or physical presence." 8 U.S.C. § 1229b(d). Relevant here, the stop-time rule provides, "[f]or the purposes of [cancellation of removal]" an alien’s period of continuous physical presence "shall be deemed to end ... when the alien is served a notice to appear under section 1229(a)." Id. § 1229b(d)(1).

The stop-time rule is only triggered upon service of a notice to appear "that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings." Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 2114, 201 L.Ed.2d 433 (2018) (quoting 8 U.S.C. § 1229(a)(1)(G)(i) ) (alteration in original). Prior to Pereira , a number of other courts of appeals had...