Cancellation of Removal and the Stop Time Rule

Sometimes immigration cases feel like roller coaster rides. They start slow. Then they ascend, followed by a scary descent, before they finally reach home. Our client MM (name concealed for privacy) could relate. She obtained her Lawful Permanent Residency (“LPR”) back in March of 1998. Almost seven (7) years later, however, in February of 2005, after she was caught helping an undocumented individual enter the United States unlawfully, the Department of Homeland Security initiated removal proceedings against her by issuing a Notice to Appear.

In many instances when LPRs or green card holders find themselves in trouble and therefore are placed in removal proceedings, their only relief is filing an Application for Cancellation of Removal for Certain Permanent Residents, more commonly known as 42A. The 42A application is one last opportunity for troubled green card holders to maintain their residency. To qualify, three (3) things are required: (1) five (5) years of residency; (2) seven (7) years of continuous residency in the United States after having been lawfully admitted in any status prior to service of the Notice to Appear, or prior to committing a criminal or security related offense; and (3) absence of an aggravated felony conviction. Regarding the second requirement, the commission of the offense or the issuance of the Notice to Appear stops the accumulation of continuous residency. This rule is known as the “stop-time-rule.”

Our client satisfied requirements one (1) and three (3). Regarding the second requirement, the Department of Homeland Security argued that the issuance of the Notice to Appear in February of 2005, stopped her from accumulating the required seven (7) years of continuous residence in the United States. Thus, they argued, she was short of meeting the requirement by just one (1) month. In other words, had she committed the offense which placed her on the government’s radar a month later than when she committed it, she would most certainly have won her case and maintained her residency. Indeed, very heartbreaking.  But she did not, and the Immigration Judge ordered her removed in 2008. The appellate process that followed left the Immigration Judge’s decision intact.

A decade later, the Supreme Court of the United States, issued a monumental decision (See Pereira v. Sessions, 138 S. Ct. 2105 (2018)), which provides that a Notice to Appear that does not provide the time and place of the immigration court hearing, does not trigger the stop-time-rule. Accordingly, individuals who have been issued Notice to Appears that lack the date and time of their hearings, continue accruing physical presence.

We met MM in 2019. The review of her file revealed a Notice to Appear that failed to provide the date and time of her immigration court hearing. We immediately filed a Motion to Reopen, arguing that in light of the Supreme Court’s decision, the standing order in MM’s case was unlawful. Our motion was granted, MM’s case was reopened, and she was scheduled for a new Individual Hearing before an Immigration Judge. In May of 2022, the Immigration Judge granted MM’s 42A and reinstated her green card. In 2023, MM became a United States citizen. MM’s roller coaster ride lasted 18 years but she finally reached home. A home where her five (5) minor children were waiting. The takeaway from MM’s ride is that there is always hope and that hope should be sought.MM NTA_Redacted (2)

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