ORDAZ

Cite as 

 (BIA 2015)                               Interim Decision #3845




      Matter of Marcos Victor ORDAZ-Gonzalez, Respondent
                               Decided July 24, 2015

                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals


  A notice to appear that was served on an alien but never resulted in the commencement
of removal proceedings does not have “stop-time” effect for purposes of establishing
eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration
and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2012).
FOR RESPONDENT: Andrew Knapp, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter R. Lee, Assistant
Chief Counsel
AMICUS CURIAE: Russell Abrutyn, Esquire, Troy, Michigan1
BEFORE: Board Panel: GUENDELSBERGER and MALPHRUS, Board Members;
GELLER, Temporary Board Member.

MALPHRUS, Board Member:


    This case is before us on remand from the United States Court of
Appeals for the Ninth Circuit for our reconsideration of the respondent’s
eligibility for cancellation of removal under section 240A(b)(1) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1) (2006). Upon
further consideration, we will sustain the respondent’s appeal in part and
remand the record to the Immigration Judge.

             I. FACTUAL AND PROCEDURAL HISTORY
    The respondent is a native and citizen of Mexico who claims to have
first entered the United States in 1990. Following an encounter with
immigration officers, the respondent was served with a notice to appear on
April 2, 1998, which advised him to appear before an Immigration Judge at
a date, time, and location to be determined in the future. Removal
proceedings were never commenced on the basis of that document because

1
  We acknowledge and appreciate the helpful briefs submitted by the parties and by
amicus curiae representing the American Immigration Lawyers Association.


                                          637
Cite as 

 (BIA 2015)                               Interim Decision #3845




it was not filed with the Immigration Court in accordance with 

(a) (1998). On September 1, 2004, the Department of Homeland
Security (“DHS”) served the respondent with a second notice to appear and
commenced the present proceedings on that basis.
    The respondent applied for cancellation of removal under section
240A(b)(1) of the Act, claiming that his date of entry was in 1990 for
purposes of establishing his continuous physical presence in the United
States. In a decision dated December 12, 2006, the Immigration Judge
ruled that pursuant to the “stop-time” rule in section 240A(d)(1), the
respondent’s period of continuous physical presence terminated when he
was served with the 1998 notice to appear. The Immigration Judge
therefore denied the application, holding that the respondent had not
accrued the 10 years of continuous physical presence required by section
240A(b)(1)(A).

                                  II. ANALYSIS
    To be eligible for cancellation of removal under section 240A(b)(1) of
the Act, an alien must establish, among other things, that he has been
“physically present in the United States for a continuous period of not less
than 10 years immediately preceding the date of such application.” Section
240A(b)(1)(A) of the Act. According to the “stop-time” rule, which is
applicable to cancellation of removal under sections 240A(a) and (b)(1),
“any period of continuous residence or continuous physical presence in the
United States shall be deemed to end . . . when the alien is served a notice
to appear under section 239(a) [of the Act, 

(a) (2012)].”
Section 240A(d)(1) of the Act; see also Illegal Immigration Reform and
Responsibility Act of 1996, Division C of 

(a)(3), 

-546, 3009-595.2 The issue before us is whether
the “stop-time” rule is triggered when an alien is served with a notice to
appear but is never placed in proceedings on the basis of that document.
    To determine the scope of section 240A(d)(1) of the Act, we look first
to the particular statutory language at issue. See K Mart Corp. v. Cartier,
Inc., 

 (1988). We must ascertain whether the statutory
language has a plain and unambiguous meaning with respect to the issue at
hand, which is “determined by reference to the language itself, the specific
context in which the language is used, and the broader context of the statute

2
   Service of a notice to appear is not the only way to trigger section 240A(d)(1) of the
Act. The “stop-time” rule applies to the earlier of the date the notice to appear was
served or, if applicable, the date on which the alien committed an offense that renders
him or her inadmissible or removable under certain sections of the Act.


                                          638
Cite as 

 (BIA 2015)                         Interim Decision #3845




as a whole.” Robinson v. Shell Oil Co., 

, 340−41 (1997).
However, where the specific question is not answered by the plain language
of the statute, either because the language is silent or is susceptible to
varying interpretations, “it is our duty to resolve any ambiguities and fill
any statutory gaps in a reasonable manner.” Matter of Velazquez-Herrera,

 (BIA 2008); see also Negusie v. Holder, 

 (2009).
    The DHS contends that an alien’s period of continuous physical
presence under section 240A(b)(1) of the Act (or continuous residence
under section 240A(a)) is terminated upon the service of any notice to
appear, including the 1998 notice to appear in this case. According to the
DHS, this argument is supported by the fact that the statute refers to “a”
notice to appear (as opposed to “the” notice to appear) to describe the
document that triggers the “stop-time” rule. See Abdisalan v. Holder, 

 (9th Cir. 2014) (noting that the “definite article ‘the’
particularizes the subject which it precedes and is [a] word of limitation as
opposed to [the] indefinite or generalizing force ‘a’ or ‘an’” (quoting In re
Cardelucci, 

 (9th Cir. 2002))).
    While we recognize that the most natural reading of the indefinite article
“a” in section 240A(d)(1) of the Act would be to refer to any notice to
appear, its use is not dispositive of the issue before us. The use of the word
“a” may be subject to more than one plausible interpretation depending on
the language and context of a statute. See F. Hoffmann-La Roche Ltd.
v. Empagran S.A., 

, 173−75 (2004) (interpreting the phrase “a
claim” to refer to the plaintiff’s claim, as opposed to a claim by any person,
in light of the context, history, and basic intent of the statute, as well as the
consequences of a contrary interpretation); Sprietsma v. Mercury Marine,

 (2002) (concluding that the phrase “a law or regulation”
does not encompass every type of law, including common law, where the
remaining statutory language and structure warrant a different reading).
Further, the complete passage at section 240A(d)(1) refers to a “notice to
appear under section 239(a),” which can be read as referring to the “written
notice” that is provided “[i]n removal proceedings under section 240 [of the
Act, 8 U.S.C. § 1229a (2012)].” Section 239(a)(1) of the Act. This could
be interpreted to mean that a written notice is not “a notice to appear under
section 239(a)” absent the actual commencement of proceedings. Under
these circumstances, the statute is ambiguous with respect to whether a
notice to appear that was served but not prosecuted “in removal
proceedings” has “stop-time” effect in subsequent proceedings based on a
different notice to appear. For the reasons discussed below, we conclude
that it does not.


                                      639
Cite as 

 (BIA 2015)                                  Interim Decision #3845




   The DHS’s argument that “a” means “any” is not the best reading of
section 240A(d)(1), considering the typical posture of removal proceedings
and the overall context of the statute. While not exclusively the case,
proceedings ordinarily begin with a single notice to appear and end with an
order of removal or a grant of some form of relief from removal. If the
DHS wishes to amend the notice to appear, it may do so through the service
of a Form I-261 (Additional Charges of Removability) “[a]t any time
during the proceeding.” 

(e) (2015). There is generally
no need for the DHS to initiate new proceedings on the basis of an
additional, superseding notice to appear. We are not convinced that
Congress anticipated the atypical situation involved here and intended to
address it through the use of the indefinite article “a” before the phrase
“notice to appear.”
   Our conclusion is especially apt when we consider the potential
consequences of interpreting the statute in the manner advocated by the
DHS. Affording “stop-time” effect to “any” notice to appear, regardless of
whether proceedings were ever commenced on that basis, would potentially
render an alien ineligible for relief on the basis of a charging document that
was invalid or otherwise insufficient to support a removal charge as issued.3
And if proceedings were never commenced, the alien would not have the
opportunity to contest, or require the DHS to prove, the allegations and
charges contained in the notice to appear. In fact, if we were to adopt the
DHS’s approach, even in situations where an alien was provided such an
opportunity, a notice to appear that he or she has successfully defended
against would nevertheless have “stop-time” effect in later proceedings.4
We are not persuaded that Congress intended such far-reaching
consequences.
3
    On the other hand, if the DHS amends a notice to appear by filing a Form I-261 during
the course of removal proceedings, the notice to appear would continue to have
“stop-time” effect. The statute affords “stop-time” effect to a single instrument—the
notice to appear that is the subject of proceedings in which cancellation of removal is
sought—irrespective of whether the allegations and charge(s) contained in that document
are later substituted or supplemented during proceedings. See Matter of Camarillo,

, 650−51 n.7 (BIA 2011).
4
    Of course, an alien’s eligibility for cancellation of removal may still be affected by
prior removal or deportation proceedings. Notably, an applicant for cancellation of
removal under section 240A(a) or (b)(1) of the Act is ineligible for such relief if he or she
is an alien “whose removal has previously been cancelled under [section 240A] or whose
deportation was suspended under [former] section 244(a) [of the Act, 

(a)
(1994),] or who has been granted relief under [former] section 212(c) [of the Act,

(c) (1994),] as such sections were in effect before the date of the
enactment of the Illegal Immigration Reform and Immigration Responsibility Act of
1996.” Section 240A(c)(6) of the Act.


                                            640
Cite as 

 (BIA 2015)                       Interim Decision #3845




    This approach is consistent with our decision in Matter of Cisneros,

, 672 (BIA 2004), where we held that “the ‘notice to
appear’ referred to in section 240A(d)(1) pertains only to the charging
document served in the proceedings in which the alien applies for
cancellation of removal.” In so holding, we rejected the argument that
service of a notice to appear in a prior proceeding that was prosecuted to
completion should have “stop-time” effect in all future proceedings. We
found the statutory language there, as here, to be ambiguous, and our
analysis was guided by the fact that Congress’ express intent for enacting
the “stop-time” rule was to address a different issue. Specifically, this rule
was designed to prevent “the prior practice of allowing periods of
continuous physical presence to accrue” during the pendency of removal
proceedings, which allowed aliens to employ dilatory tactics in proceedings
in order to “buy time” to establish eligibility for cancellation of removal.

. We found that this purpose would not be furthered by applying
the “stop-time” rule to an alien who was served a notice to appear in an
earlier, unrelated proceeding. Such an individual is not in a position to
“buy time” until after the DHS initiates removal proceedings on the basis of
a subsequent charging document. See 

    This rationale applies with equal force to an alien who is served a notice
to appear but is never placed in removal proceedings on that basis. In fact,
the decision to commence removal proceedings lies in the sole discretion of
the DHS. See 

(a); see also, e.g., Cortez-Felipe v. INS,

 (9th Cir. 2001); Matter of Lujan-Quintana, 

 (BIA 2009). We therefore find strong support in Matter of
Cisneros for the interpretation we adopt here.
    We addressed a related, but different, “stop-time” issue in Matter of
Camarillo, 

 (BIA 2011). In that case, we considered
whether section 240A(d)(1) of the Act is triggered as of the date of service
of the notice to appear, even if the time and place of the hearing is not
specified, or at some later date, such as when a subsequent notice of hearing
is sent by the Immigration Court. 

 at 647−51. Our discussion of the
“stop-time” rule was therefore in the context of “when the notice to appear
is effective to terminate the accrual of continuous residence [or physical
presence].” 

 (emphasis added). Here, by contrast, we are
addressing a different ambiguity in the statute, namely, whether a
particular notice to appear has “stop-time” effect. While both of these
issues arise in the context of the same statute, they present different
questions of statutory interpretation, which must be evaluated based on the
language, structure, and context of the provision in regard to the specific
issue before us.


                                     641
Cite as 

 (BIA 2015)                                  Interim Decision #3845




    With respect to the issue of timing (or when the “stop-time” rule takes
effect), Matter of Camarillo considered the interrelationship between the
service of a notice to appear and the required advisals under section
239(a)(1)(G)(i) of the Act. We noted that while section 239(a)(1)(G)(i)
requires an alien to be advised of the time and location the proceedings will
take place, such information is often provided after service of a notice to
appear, as contemplated by both the Act and the regulations. Matter of
Camarillo, 25 I&N Dec. at 647−48; see also Popa v. Holder, 

 (9th Cir. 2009) (explaining that the DHS “frequently serves [notices to
appear] where there is no immediate access to docketing information”
(quoting Dababneh v. Gonzales, 

 (7th Cir. 2006))). We
therefore concluded that section 240A(d)(1)’s reference to a notice to
appear “under section 239(a)” is merely definitional in nature. It does not
alter the time when an alien’s period of continuous residence or physical
presence is deemed to end, which the structure and legislative history of the
statute support as being the date the notice to appear is served.5
    This is consistent with the approach we adopt here.              Section
240A(d)(1)’s reference to section 239(a) of the Act is definitional in that it
specifies what “a notice to appear” refers to in section 240A(d)(1). Matter
of Camarillo, 25 I&N Dec. at 647, 650. It refers to the written notice that is
provided to an alien “[i]n removal proceedings under section 240.” Section
239(a)(1) of the Act. Such reference answers the question presented here:
whether the “stop-time” rule applies to a notice to appear that is properly
served but not used to commence proceedings. It does not, however, alter
the time when an alien’s period of continuous residence or continuous
physical presence is deemed to end. Therefore, we continue to interpret
section 240A(d)(1) as terminating an alien’s period of continuous residence
or physical presence as of the date a notice to appear is served, even if the
document does not contain the time and place of the hearing, provided that
proceedings are actually initiated on that basis.6

5
   We stated that “the commencement of proceedings is a separate issue from the service
of the notice to appear. The application of the ‘stop-time’ rule is, by statute, based on
service of the notice to appear, not the commencement of proceedings . . . .” Matter of
Camarillo, 25 I&N Dec. at 650. However, this statement was made in in the context of
the typical situation where the DHS issues and proceeds on a single notice to appear. We
were not considering the situation where, as here, the original notice to appear was issued
but never prosecuted in removal proceedings.
6
   The courts of appeals that have addressed Matter of Camarillo have deferred to it as a
reasonable interpretation of the ambiguous statutory language in section 240A(d)(1) of
the Act. Guaman-Yuqui v. Lynch, 

 (2d Cir. 2015); Gonzales-Garcia
v. Holder, 

, 433−35 (6th Cir. 2014); Yi Di Wang v. Holder, 

,
674−75 (7th Cir. 2014); Urbina v. Holder, 

 (4th Cir. 2014); see also
                                                                            (continued . . .)

                                            642
Cite as 

 (BIA 2015)                              Interim Decision #3845




    Matter of Cisneros, Matter of Camarillo, and this decision together
interpret section 240A(d)(1) as ending, or “stopping,” an alien’s period of
continuous residence or continuous physical presence on the date a notice
to appear is served, provided that such document is the basis for the
proceedings in which cancellation of removal is being sought. This reading
gives meaning to the statute as a whole and is consistent with the Act in its
entirety, the nature of removal proceedings in general, and Congress’ goal
in enacting section 240A(d)(1) of the Act.           See FDA v. Brown
& Williamson Tobacco Corp., 

 (2000) (explaining that in
determining the meaning of a statute, a court must “interpret the statute ‘as
a symmetrical and coherent regulatory scheme’ and ‘fit, if possible, all parts
into an harmonious whole” (citations omitted)).

                               III. CONCLUSION
    The language and structure of section 240A(d)(1) of the Act do not
support giving “stop-time” effect to a notice to appear that was served on
an alien but was never used to commence proceedings. Consequently, the
1998 notice to appear, although properly served, did not terminate the
respondent’s continuous physical presence for purposes of his application
for cancellation of removal under section 240A(b)(1) of the Act.
Accordingly, his appeal will be sustained in part. The record will be
remanded to give the parties an opportunity to present additional arguments
and evidence, including testimony, as the Immigration Judge deems
appropriate.7
    ORDER: The respondent’s appeal will be sustained in part.
    FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.




____________________________
O’Garro v. U.S. Att’y Gen., 

 (11th Cir. 2015) (deferring, in an
unpublished decision, to our interpretation in Matter of Camarillo); Soto v. Holder, 

, 1011−12 (1st Cir. 2013) (adopting a similar approach without discussing
Matter of Camarillo).
7
   On remand, the Immigration Judge should determine whether the respondent
established that he first entered the United States in 1990 and make specific factual
findings regarding the respondent’s date of entry.


                                         643