The Effect of a Notice to Appear on Continuous Physical Presence Calculation

Receiving a Notice to Appear letter from immigration officials can cause stress and worry because it often marks the beginning of removal proceedings for a noncitizen who may be subject to deportation from the United States. The Notice to Appear letter is considered the charging document that informs a noncitizen of the government’s intent to start deportation proceedings, either at a set date, or at a future date that is not identified in the letter. The Notice to Appear letter also contains factual allegations that a deportable noncitizen may challenge during the subsequent removal proceedings.

The issuance of a Notice to Appear letter is important to noncitizens who have been in the United States for long periods of time. Under federal law, along with other factors, a deportable noncitizen who has been physically present in the United States for more than 10 years immediately before a deportation proceeding, may qualify to have the Attorney General cancel removal proceedings. Receiving a Notice to Appear usually stops the clock on this 10-year requirement; this is known as the stop-time rule.

However, the Board of Immigration Appeals has held that the clock does not stop for purposes of calculating the 10 years required for a cancellation of removal if the government did not proceed with removal proceedings based on the Notice to Appear after issuing the letter. In this case, immigration officials issued a Notice to Appear in 1998 to a noncitizen who allegedly entered the country in 1990. No removal proceedings were begun on the basis of this 1998 letter. In 2004, the Department of Homeland Security issued a second Notice to Appear to the noncitizen, and began removal proceedings based on this second letter. The noncitizen applied for cancellation of deportation or removal proceedings based on the fact that he had been in the country continuously for 10 years. An immigration judge denied the noncitizen’s application based on the issuance of the 1998 Notice To Appear letter.

Only Notices to Appear Leading to Removal Proceedings Count

The Board of Immigration appeals interpreted the stop time rule to limit the effect of the issuance of a Notice to Appear on calculating continuous residency, for purposes of cancellation of removal proceedings, to those Notices to Appear letters that actually lead to removal proceedings.

Therefore, the 1998 Notice to Appear in this case did not stop the clock for the 10-year residency calculation, and if the noncitizen could show he entered the United States in 1990, he may be eligible for relief from deportation through a cancellation of removal proceedings.

This conclusion by the Board of Appeals is a great advantage to people facing removal proceedings because it requires the government to not only issue valid Notices to Appear, but also to act within a reasonable time if seeking removal proceeding so that a noncitizen is not prejudiced by the delay.

Contact a South Florida Board Experienced Immigration Attorney

If you or a loved one has received a Notice to Appear or have other questions about Immigration status or the Immigration process, contact an experienced South Florida immigration attorney at The Law Offices Of Alex T. Barak, P.A today. Our attorneys can help you understand your immigration options.