Tuesday, May 10, 2005

Stop-time rule for cancellation of removal applied

In the non-precential decision Dudney v. Attorney General, No. 04-3530 (3d Cir. May 9, 2005) (not precedential), the Third Circuit applied the stop-time rule to cut off the number of years a green-card holder (Legal Permanent Resident or LPR) has continued presence in the United States. The issue is critical because under the 1996 laws, an LPR must have seven years of continued presence (along with other requirements) to obtain cancellation of removal.

The Third Circuit relied on two basic principles: the amount of continuous presence the LPR accrues stops upon committing a crime that makes him removable. The clock stops upon committing the offense, not when he is finally convicted for it.

Also, the court noted that the stop-time rule only applies to offenses referred to in section 212(a)(2) [a.k.a. section 1182(a)(2)]. That posed no problem to deporting Mr. Dudney because his particular conviction (a drug conviction) is referred to in section 212(a)(2). Mr. Dudney would have been in better shape if his conviction had been for a firearms offense, because that is not referred to in section 212(a)(2) and threfore it does stop the amount of continuous presence the immigrant has. This is based on the plain language of the statute and the BIA's ruling in In re Campos-Torres, 22 I. & N. Dec. 1289, 1293 (BIA 2000).


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