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“STOP TIME RULE” OF CANCELLATION OF REMOVAL FOR CERTAIN LEGAL PERMANENT RESIDENTS INA §240(a)

5/22/2014

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Under INA § 240A(a),the Attorney General may cancel the removal of a non-citizen and allow the non-citizen to remain as a lawful permanent resident of the United States. The relief of cancellation under INA § 240A(a) applies to eligible non-citizens placed in removal proceedings on or after April 1, 1997.

Under§ 240A(a), an LPR must (1) have been lawfully admitted for permanent residence for not less than five years[*1], (2) have resided in the United States continuously for seven years after having been admitted in any status[*2], and (3) not have been convicted of any aggravated felony.

INA § 240A(d), also known as the “stop-time” rule, defines when continuous residence or continuous physical presence ends. It states that continuous residence ends at the moment the non-citizen commits certain acts or crimes or is served with a Notice to Appear (NTA) for removal proceedings before an Immigration Judge. Specifically, the time stops accruing

(A) when the alien is served a notice to appear under section 239(a), or

(B) when the alien has committed an offense[*3] referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.

*1 The accrual of the 5 years of permanent resident status is not subject to the stop-time rule.

*2 Admitted in any status – start to count from date of first legal admission. (example… if respondent entered without inspection, and later adjust status (e.g. NACARA, Haitian Refugee, etc), the date to start calculating the 7 year continuance residence is at the date of adjustment, not at the time of initial entry.

*3  Matter of Jurado, 24 I&N Dec. 29 (BIA 2006) (an alien need not be charged and found inadmissible or removable on a ground specified in section 240A(d)(1)(B) of the Immigration and Nationality Act in order for the alleged criminal conduct (conviction of the crime) to terminate the alien’s continuous residence in this country).

*4 
INA 212(a)(2) Criminal and related grounds 

(A) Conviction of certain crimes

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),  is inadmissible.

(B) Multiple criminal convictions

(C) Controlled substance traffickers

(D) Prostitution and commercialized vice

(E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution

(F) Waiver authorized

(G) Foreign government officials who have committed particularly severe violations of religious freedom

(H) Significant traffickers in persons

(I) Money laundering

*5 
INA 237(a)(2) Criminal offenses

(A) General crimes

(i) Crimes of moral turpitude Any alien who

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

 is deportable.

(ii) Multiple criminal convictions CIMT

(iii) Aggravated felony 

(iv) High speed flight 

(v) Failure to register as a sex offender 

(B) Controlled substances (other than a single offense involving possession for one’s own use of 30 grams or less of marijuana)

(C) Certain firearm offenses

(D) Miscellaneous crimes

Any alien who at any time has been convicted (the judgment on such conviction becoming final) of, or has been so convicted of a conspiracy or attempt to violate--

(i) relating to espionage, relating to sabotage, treason and sedition for which a term imprisonment of five or more years may be imposed;

(ii) any offense under section 871 or 960 of title 18;

(iii) a violation of any provision of the Military Selective Service Act (50 App. U.S.C.451 et seq.) or the Trading With the Enemy Act (50 App. U.S.C. 1 et seq.); or

(iv) a violation of section 1185 or 1328 of this title,

is deportable.

(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and

(i) Domestic violence, stalking, and child abuse 

(ii) Violators of protection orders 

(F) Trafficking (persons)

*6 
INA 237(a)(4) Security and related grounds

(A) In general

Any alien who has engaged, is engaged, or at any time after admission engages in--

(i) any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,

(ii) any other criminal activity which endangers public safety or national security, or

(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means,

is deportable.





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Grounds for Mandatory Detention

6/7/2013

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The grounds for mandatory detention include various grounds of inadmissibility from Section 212(a) of the I.N.A. — but an actual conviction is not required in all cases. 

These criminal grounds of inadmissibility include commission of:

  • a crime involving moral turpitude, unless the maximum sentence possible is one year or less and the actual sentence you received is less than six months OR if you were under 18 when you committed the crime and it was more than five years ago
  • multiple convictions where the aggregate sentence is five years or more of imprisonment
  • a controlled substance offense (any drug offense, including if the immigration authorities have reason to believe that you are a drug trafficker)
  • a prostitution-related offense
  • terrorist activity
  • significant human trafficking
  • money laundering
Detention is also mandatory for people who are deportable based on criminal convictions (found in Section 237 of the I.N.A.) including:

  • a crime involving moral turpitude where (as an added requirement from I.N.A. Section 236(c)(1)(C)), you were sentenced to more than one year in prison
  • two or more crimes involving moral turpitude
  • an aggravated felony
  • a firearms offense
  • a controlled substance conviction other than a single offense for possession for your own use of 30 grams or less of marijuana
  • drug abuse or addiction, or
  • espionage, sabotage, or treason.
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Case Success

4/4/2012

4 Comments

 

Case Type: Deportation/Detained

Aggravated felony charge not sustained. Granted LPR Cancellation (detained) to longtime LPR who was mandatorily detained due to a firearms charge and possession of prescription medication.  
4 Comments

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