Thursday, May 19, 2005

Presence can restart after approved re-entry

Brief summary for now: in Okeke v. Attorney General, No. 03-1831 (3d Cir. May 18, 2005) (precedential), the Third Circuit ruled that approved re-entry can start a new period of continual physical presence that qualifies someone for cancellation of removal!

Cancellation of removal requires a certain period of physical presence in the U.S. For those without a green card, the law requires ten years. There are other important requirements (such as exceptional and extremely unusual hardship to certain types of close relatives), but the decision focused on just one of those requirements -- ten years of presence.

In 1996, Congress passed a rule nicknamed the "stop-time rule," which says that if there is a ruling that a person violated his visa, then the amount of time accrued toward continual presence shall be terminated. So, if someone is in the middle of accruing time toward the 10 years when there is a finding that he is out of status, the amount of time accruing towards the 10 year requirement stops.

In Mr. Okeke's case, he left the country after the clock stopped and then re-entered on a student visa. ICE argued that a new period of ten years could not begin after he re-entered on the student visa because the stop-time rule blocks any future time period from starting. Mr. Okeke argued that the stop-time rule only ends the ongoing time being accrued but does not prevent a new period from starting after a perfectly legitimate, approved re-entry into the U.S.

The Third Circuit agrees with Mr. Okeke. It noted in particular that this is not a situation where someone drags on court proceedings for 11 years hoping that time that he stalls can be counted as a new period of continual presence. The Third Circuit said the stall-game will not work, but if someone leaves the country and legally re-enters, a new period can start. Mr. Okeke left and re-entered with permission. He was not trying to stall his court proceeding and he did not sneak back in the country.

The Third Circuit's decision makes sense because if the U.S. knowingly let Mr. Okeke come back in the country, there's no reason why a new period can't start at that point. The only worry is that the Third Circuit based its decision for now on the exact wording of the statute, not based on other fairness and equity grounds. So, its position might be different if Congress tinkers with the wording of the statute.


Post a Comment

<< Home