BIA Clarifies Continuous Physical Presence Requirement for Cancellation of Removal

Last Updated

January 27, 2023

In yet another decision on the “stop-time” rule in cancellation of removal proceedings, the Board of Immigration Appeals has held that the entry of a final removal order does not stop the accrual of time necessary for cancellation of removal eligibility pursuant to INA § 240A(b)(1). Matter of Chen, 28 I&N Dec. 676 (BIA 2023). In doing so, the Board reiterated that the statute distinguishes events that break continuous physical presence from events that terminate it and found respondent had accrued sufficient physical presence in her case. Finally, the Board restated that a respondent claiming a fundamental change in law as the basis for a sua sponte reopening must also show prima facie eligibility for the relief the respondent seeks. It then imposed a surprisingly high standard on the respondent and denied reopening in her case.

Summary of Facts

The respondent in Chen entered the United States in 2001 using a false U.S. passport. She was charged as inadmissible and placed in removal proceedings. Her notice to appear, or NTA, did not indicate the date and time of her first hearing, and thus did not comply with INA § 239(a)(1)(G)(i). The immigration court subsequently issued the respondent a notice of hearing. During proceedings, the immigration judge found the respondent removable, denied her applications for relief, and ordered her removed. Her subsequent appeal was denied in 2005. Sixteen years later, the respondent moved to reopen her proceedings based on the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), arguing that, due to the passage of time and statutorily deficient NTA issued years earlier, she met the requirements for cancellation of removal under INA § 240A(b), including the necessary accrual of physical presence in the United States.


Applicability of the Stop-Time Rule

The Board in Chen first looked at whether a final order of removal triggers the stop-time rule or stops a noncitizen’s accrual of physical presence required for eligibility for cancellation of removal under INA § 240A(b)(1). To be eligible under that statute, a noncitizen must have been “physically present in the United States for a continuous period of not less than ten years,” and certain events stop the accrual of that time.

In its decision, the Board followed a number of circuit courts in applying the plain language analysis of the Supreme Court in Niz-Chavez and Pereira v. Sessions, 138 S. Ct. 2105 (2018) and holding that INA § 240A(d)(1) “unambiguously provides that only two discrete circumstances trigger the stop-time rule: (1) the service of a statutorily compliant notice to appear; or (2) the commission of certain, specified criminal offenses.” Chen at 679. As such, the Board found, the statute does not include the entry of a final administrative order of removal as one of these discrete circumstances.

The Board then considered INA § 240A(d)(2), entitled “Treatment of Certain Breaks in Presence,” and contrasted that section with INA § 240A(d)(1). After reviewing its own precedent and the legislative history, the Board concluded that, while subsection (d)(2) clearly does not “set forth an exhaustive list of events that break an applicant’s presence,” subsection (d)(1)’s “more conclusive language … suggests that Congress intended the text of section 240A(d)(1) to cover all events that terminate presence, not just certain events.” Chen at 680. Ultimately the Board held that the stop-time rule is only triggered by the service of a compliant NTA or the commission of certain specified criminal offenses, and that, neither event having occurred in this case, the respondent had continued to accrue physical presence for purposes of cancellation of removal.


In addition to considering whether the stop-time rule was triggered in the respondent’s case, the Board also looked at whether the respondent had met all necessary requirements for a sua sponte motion to reopen. The Board restated the standards as set forth by INS v. Abudu¸ 485 U.S. 94, 104 (1988), Matter of G-D-, 22 I&N Dec. 1132, 1336-37 (BIA 1999) and Matter of X-G-W-, 22 I&N Dec. 71, 74 (BIA 1998), which held that a respondent must establish a prima facie case for the underlying relief sought when moving for sua sponte reopening of a case. The Board then held that in this case the respondent had not met this burden because she did not present enough facts to meet the heightened hardship standard required in a non-LPR cancellation of removal case, nor did she address whether she merits a favorable exercise of discretion, as required under the statute. Accordingly, the Board declined to consider whether Niz-Chavez v. Garland had indeed presented a fundamental change in the law that warranted sua sponte reopening and denied the respondent’s motion to reopen.

Implications for Practitioners

The result in Chen is a positive development in that it may lead more applicants to be eligible for non-LPR cancellation of removal if they can successfully reopen the removal order issued against them. The Board in prior unpublished decisions had taken the opposite position on termination of continuous physical presence, which at least one federal court rejected. See Estrada-Cardona v. Garland, 44 F.4th 1275 (10th Cir. 2022) (finding that Board erred in finding that continuous physical presence ends when the immigration judge issues a final order of removal). Despite this positive development, the Board appears to now require that the very high standard for granting a non-LPR cancellation case be met when establishing prima facie eligibility for such relief on a motion to reopen. For example, it appears that the respondent in Chen did submit evidence of hardship to her children, including evidence of harsh conditions in the area of China where she is from and lack of family connections in the home country. Still, the Board found this evidence insufficient to make a prima facie showing of eligibility for cancellation of removal. The Board also focused on the adverse discretionary factors in the case, including the respondent’s use of a false U.S. passport.

Practitioners considering pursuing motions to reopen to apply for cancellation of removal should thus be aware of the high standard set by the Board to establish a prima facie case for eligibility for cancellation of removal. Practitioners are also advised to consider possible arguments for reopening under the statute, including lack of notice, changed country conditions, or eligibility for Violence Against Women Act protections, instead of making an argument based simply on sua sponte reopening under the regulations.