On Petition for Review of Orders of Removal from the Board of Immigration Appeals U.S. Department of Justice Executive Office for Immigration Review (BIA No. A26-188-596)
The opinion of the court was delivered by: Garth, Circuit Judge
* Attorney General Alberto Gonzales has been substituted for former Attorney General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App. P. 43(c).
Before: NYGAARD, AMBRO, and GARTH, Circuit Judges
Anderson Jude Okeke, a native and citizen of Nigeria, petitions for review of two orders from the Board of Immigration Appeals ("BIA"). Those orders affirmed the Immigration Judge's ("IJ") decision that Okeke could not demonstrate the requisite continuous physical presence in the United States in order to qualify for cancellation of removal. Essentially, the BIA found that the "stop-time" provision (8 U.S.C. § 1229b(d)(1)), once triggered, precludes the accrual of a new period of continuous presence, which in this case would possibly commence with Okeke's lawful re-entry into the United States. That lawful re-entry–the critical fact on appeal–occurred after Okeke committed a controlled substance offense, which, pursuant to 8 U.S.C. § 1229b(d)(1), clearly ended any prior period of continuous physical presence. The question presented in this appeal, therefore, is whether Okeke is entitled to a new period of continuous physical presence, commencing upon his lawful re-entry into the United States, so as to allow him to accrue the time required to establish eligibility for cancellation of removal. See 8 U.S.C. § 1229b. For the reasons stated herein, this Opinion of the Court concludes that the clock should have restarted upon Okeke's re-entry. The Petition for Review will therefore be granted.
The facts on appeal are reasonably straightforward. Okeke first entered the United States on September 15, 1981, pursuant to a F-1 student visa in order to attend Touro College. In January of 1983, after returning to Nigeria for personal reasons, Okeke attempted to re-enter the United States at John F. Kennedy Airport, whereupon he was arrested for possession of marijuana. Okeke has testified that he appeared before a court in Queens, New York, where he pled guilty to possession of marijuana and received a sentence of five years probation.
After that incident, Okeke returned to Nigeria on two further occasions, once in December 1983 and then again in April 1984. On both occasions, he was lawfully re-admitted to the United States under his student visa. Since returning from Nigeria in May of 1984, Okeke has lived here without interruption.
On December 29, 1997, the Immigration and Naturalization Service ("INS") filed a Notice to Appear ("NTA"), charging Okeke with removability under 8 U.S.C. § 1227(a)(1)(C)(i), inasmuch as he failed to maintain or comply with the terms of his nonimmigrant admission to the United States ( i.e., he no longer attended Touro College). *fn1 This was the only ground of deportation charged in the NTA. Okeke admitted to the allegations in the NTA, but filed an application for cancellation of removal. *fn2
At the removal hearing on July 27, 1999, the IJ concluded that Okeke could not demonstrate the requisite continuous physical presence in the United States to qualify for cancellation of removal. The IJ found sufficient proof of the commission of a controlled substance offense,*fn3 a crime providing for inadmissibility. Such an act would have triggered the "stoptime" provision, see 8 U.S.C. § 1229b(d)(1), and would have stopped Okeke's accrual of continuous physical presence well before he could establish the necessary ten years required by the cancellation of removal statute: Okeke entered the country in 1981 and committed the crime in 1983.
On appeal to the BIA, Okeke contested the IJ's finding on two grounds. First, Okeke argued that there was insufficient proof of conviction, precluding the application of the "stoptime" provision. The BIA rejected this contention, finding that both the admissions and the NCIC report were probative of Okeke's commission of a controlled substance offense. Second, Okeke challenged the IJ's decision that he failed to establish the requisite ten years continuous physical presence to qualify for cancellation of removal.
Rejecting this contention as well, the BIA concluded that the commission of a controlled substance offense is not simply interruptive of the period of continuous physical presence, but is a terminating event, after which no further continuous presence can accrue for purposes of cancellation of removal. The BIA thus affirmed the IJ's decision, ordering Okeke to voluntarily depart from the United States.
Thereafter, Okeke filed a motion for reconsideration, which was denied by the BIA on November 28, 2003, for failure to assert new legal arguments. Okeke filed timely petitions for review of both BIA decisions, which were consolidated for purposes of appeal on December 5, 2003.
Appellate jurisdiction is derived from 8 U.S.C. § 1252.*fn4
The Court must review the BIA's statutory interpretation of the INA under the deferential standard of Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984). In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), this Court stated, "'if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.'" Id. at 1239 (quoting Chevron, 467 U.S. at 843).
Okeke sought cancellation of removal under 8 U.S.C. § 1229b(b). *fn5 Inasmuch as the BIA held that Okeke failed to meet the first threshold requirement for consideration of cancellation of deportation–continuous physical presence in the United States for not less than ten years, this opinion limits its discussion to that narrow issue.
A period of continuous presence is "deemed to end" either (1) when an alien is served with a Notice to Appear placing him in immigration proceedings or (2) when the alien commits an offense described in 8 U.S.C. § 1182(a)(2) that renders him inadmissible under that section or deportable under 8 U.S.C. § 1227(a)(2) or (a)(4), "whichever is earliest." 8 U.S.C. § 1229b(d)(1). Here, Okeke's commission of a controlled substance offense in 1983 is "an offense referred to in" 8 U.S.C. § 1182(a)(2)(A)(i)(II), which triggered the "stoptime" provision of the cancellation of removal statute, 8 U.S.C. § 1229b(d)(1). *fn6
Okeke contends that his most recent admission to the United States on May 5, 1984 established a new and valid period of continuous presence. The government disagrees, relying on Matter of Mendoza-Sandino, 22 I. & N. Dec. 1236 (BIA 2000), for the proposition that once a triggering event occurs – commission of a controlled substance ...