Michael Alexander Nelson v. Attorney General of the United States

1
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-1654
_____________
MICHAEL ALEXANDER NELSON,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
______________
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
(Agency No. A044-843-940)
____________
Argued: April 19, 2012
____________
Before: VANASKIE, BARRY and CUDAHY,* Circuit
Judges
(Opinion Filed: May 22, 2012)
____________
Kristen Sawicki (Argued)
Richard H. Frankel, Esq. (Argued)
Drexel University
Earle Mack School of Law
* Honorable Richard D. Cudahy, Senior Circuit Judge for the
United States Court of Appeals for the Seventh Circuit, sitting
by designation.

-- 1 of 12 --

2
3320 Market Street
Philadelphia, PA 19104
Counsel for Petitioner
Jeffrey L. Menkin, Esq. (Argued)
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
____________
OPINION OF THE COURT
____________
BARRY, Circuit Judge
Michael Nelson petitions for review of the decision of
the Board of Immigration Appeals, which concluded that he
had not accumulated the seven years of continuous residence
in the United States necessary to be eligible for cancellation
of removal under 8 U.S.C. § 1229b. We will deny the
petition.
I.
Nelson is a native and citizen of Jamaica who was
admitted to the United States as a lawful permanent resident
on November 3, 1994. In early 1999, less than five years after
his admission to the United States, Nelson pleaded guilty in
New York state court to possession of approximately 16
ounces of marijuana (―the 1999 conviction‖).
In August 2000, Nelson visited Canada for two days.
Although his 1999 conviction rendered him inadmissible to
the United States, Nelson was nonetheless allowed to reenter
the country through a border checkpoint. Following his

-- 2 of 12 --

3
reentry, he did not leave the United States again and lived
here without interruption.
On November 16, 2006, Nelson was arrested in New
Jersey after attempting to retrieve a package containing a
substantial amount of marijuana that had been mailed to a
Sears Auto Center. In May 2008, he was tried by a jury in
New Jersey state court and found guilty of attempted
possession with intent to distribute marijuana in violation of
N.J.S.A. §§ 2C:5-1, 2C:35-5b(10), & 2C:35-7.1 (―the 2008
convictions‖). He proceeded to challenge these convictions
on direct appeal.
On November 26, 2008, the Department of Homeland
Security (―DHS‖) issued a Notice to Appear asserting that
Nelson was removable because his 2008 convictions
constituted aggravated felonies and controlled substances
offenses pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i).
The Immigration Judge (―IJ‖) originally found Nelson
removable based on these convictions, but later withdrew
those findings after Nelson established that the convictions
were on direct appeal and thus were not ―final.‖
On September 8, 2009, DHS issued additional removal
charges based instead on Nelson’s 1999 conviction. Nelson,
for his part, subsequently applied for cancellation of removal.
After finding Nelson removable based on the 1999
conviction, the IJ denied his application for cancellation of
removal, concluding that Nelson had not accrued the required
seven years of continuous residence in the United States
necessary to be eligible for that relief. In particular, the IJ
found that Nelson’s 1999 drug offense triggered the ―stop-
time‖ provision of 8 U.S.C. § 1229b(d)(1), and ended his
period of continuous residence short of the seven-year
statutory threshold. Furthermore, the IJ determined that
Nelson was not permitted to start a new period of continuous
residence based on his reentry to the United States following
his two-day trip to Canada in 2000.
Nelson appealed to the BIA. On appeal, Nelson
conceded his removability based on the 1999 conviction, but

-- 3 of 12 --

4
argued that the IJ erred in denying his application for
cancellation of removal for failure to meet the residence
requirement. He did not dispute that his 1999 conviction was
an event that interrupted his continuous residence. Rather, he
argued that, based on this Court’s decision in Okeke v.
Gonzales, 407 F.3d 585 (3d Cir. 2005), he was entitled to
establish a new period of continuous residence after his
reentry to the United States in 2000.
On February 11, 2011, the BIA issued a precedential
decision affirming the IJ and dismissing Nelson’s appeal. In
re Nelson, 25 I. & N. Dec. 410 (BIA 2011). The BIA
distinguished Okeke and concluded that ―the clock does not
start anew simply because an alien departs and reenters the
United States following the commission of a triggering
offense.‖ Because the BIA found Nelson removable based
exclusively on the 1999 conviction, it refused to address the
2008 convictions or DHS’s claim that Nelson’s direct appeal
from those convictions had been dismissed. Nelson
petitioned for review of the BIA’s decision.
II.
We have jurisdiction to review the decision of the BIA
under 8 U.S.C. § 1252(a). Because the BIA issued its own
opinion, and did not simply adopt the opinion of the IJ, we
review only the BIA’s decision as the final agency decision.
Sarango v. Attorney General, 651 F.3d 380, 383 (3d Cir.
2011). However, to the extent the BIA deferred to or adopted
the IJ’s reasoning, we also look to and consider the decision
of the IJ on those points. See Chavarria v. Gonzalez, 446
F.3d 508, 515 (3d Cir. 2006). We review the BIA’s
conclusions of law de novo, but give so-called Chevron
deference to its interpretation of the Immigration and
Nationality Act. Id. (citing INS v. Aguirre-Aguirre, 526 U.S.
415, 424–25 (1999)). ―Under the familiar two-step Chevron
inquiry, first, if the statute is clear we must give effect to
Congress’ unambiguous intent, and, second, if the statute is
silent or ambiguous with respect to a specific issue, we defer
to an implementing agency’s reasonable interpretation of that
statute.‖ De Leon-Ochoa v. Attorney General, 622 F.3d 341,

-- 4 of 12 --

5
348 (3d Cir. 2010).
A.
The relevant statute in this case is 8 U.S.C. § 1229b,
which provides that aliens may be eligible for cancellation of
removal if they meet certain requirements. The precise
eligibility requirements depend on the alien’s status as a
permanent resident or a nonpermanent resident. With respect
to permanent residents, the statute provides that:
The Attorney General may cancel removal in
the case of an alien who is inadmissible or
deportable from the United States if the alien—
(1) has been an alien lawfully admitted
for permanent residence for not less than
5 years,
(2) has resided in the United States
continuously for 7 years after having
been admitted in any status, and
(3) has not been convicted of any
aggravated felony.
8 U.S.C. § 1229b(a).1 The crucial provision for purposes of
this petition is the requirement of a continuous seven-year
residence in the United States.
With respect to the residency requirement, the statute
contains a section on the ―[t]reatment of certain breaks in
presence.‖ In particular, it states that ―[a]n alien shall be
considered to have failed to maintain continuous physical
1 The requirements for nonpermanent residents are somewhat
more onerous, although they also must show a continuous
period in the country—described as continuous ―physical
presen[ce]‖ rather than continuous ―residence.‖ Id. at §
1229b(b)(1)(A).

-- 5 of 12 --

6
presence . . . if the alien has departed from the United States
for any period in excess of 90 days or for any periods in the
aggregate exceeding 180 days.‖ Id. § 1229b(d)(2). More
importantly for Nelson, however, the statute also contains a
provision calling for the ―termination‖ of an alien’s
continuous period of residence, stating:
any period of continuous residence or
continuous physical presence in the United
States shall be deemed to end (A) . . . when the
alien is served a notice to appear under section
1229(a) of this title, or (B) when the alien has
committed an offense referred to in section
1182(a)(2) of this title that renders the alien
inadmissible to the United States . . . or
removable from the United States . . .,
whichever is earliest.
Id. § 1229b(d)(1). This section is known as the ―stop-time‖
provision of the statute.
B.
Both this Court and the BIA have analyzed and
elaborated on the stop-time provision of § 1229b. In In re
Mendoza-Sandino, 22 I. & N. Dec. 1236 (BIA 2000)
(―Mendoza‖), the BIA held that, once an alien’s period of
continuous presence or residence is terminated by the stop-
time provision—through service of a notice to appear or
commission of a specified offense—it does not restart, and
the alien does not automatically begin accruing a new period
following the cessation of the first one. In reaching that
conclusion, the BIA focused on the language and structure of
the statute, particularly the fact that the service of a notice to
appear or commission of a crime are said to ―end‖ the alien’s
period of continuous presence. The Board contrasted that
with the provision of the statute identifying events that merely
―break‖ the alien’s period of continuous presence:
Congress has distinguished between certain
actions that ―end‖ continuous physical presence,

-- 6 of 12 --

7
i.e., service of a charging document or
commission of a specified crime, and certain
departures from the country that only
temporarily ―break‖ that presence. Service of . .
. a notice to appear is not included as an
interruptive event under [the statute], which
merely breaks continuous physical presence.
Rather . . . such service is deemed to end an
alien’s presence completely. Therefore, a
reading of [the statute] that would allow an
alien to accrue a new period of continuous
physical presence after the service of a charging
document is not supported by the language of
[the statute].
Id. at 1240. Accordingly, the BIA concluded ―that the
language of [the statute] reflects that service of a notice to
appear . . . is not simply an interruptive event that resets the
continuous physical presence clock, but is a terminating
event, after which continuous physical presence can no longer
accrue.‖ Id. at 1241 (emphasis supplied).
We have held that the Mendoza decision is reasonable
and entitled to Chevron deference. Briseno-Flores v.
Attorney General, 492 F.3d 226 (3d Cir. 2007).
C.
As noted above, Nelson admits that he committed an
offense in 1999 which triggered the stop-time provision and
ended his residency period short of the seven-year statutory
requirement. Applying Mendoza and Briseno-Flores, that
residency period, once terminated, would not restart. Seeking
to avoid this result, Nelson argues he should be deemed to
have begun a new period of continuous residence after his
1999 conviction based solely on his reentry to the United
States from Canada following a brief trip. Because the BIA
ruled against him on this point, Nelson bears the burden of
showing that the BIA’s decision was either contrary to the
unambiguous language of the statute, or an unreasonable
interpretation of the statute. Nelson has failed to meet that

-- 7 of 12 --

8
burden here.
1.
Nelson’s first contention is that the plain language of
the statute unambiguously provides for a new period of
continuous residence to begin after an alien exits and reenters
the country following his commission of a crime. In
particular, he relies on the language of the cancellation of
removal statute stating that a lawful permanent resident must
have ―resided in the United States continuously for 7 years
after having been admitted in any status.‖ 8 U.S.C. §
1229b(a)(2) (emphasis supplied). Nelson argues that this
language ―makes clear that seven years of continuous
residence following any admission will be sufficient . . . [and]
a new admission equals a new period of continuous
residence.‖ (Petitioner’s Br. at 43.) Nelson contends that his
return from Canada in 2000 constituted a new ―admission,‖
and thus a period of seven years residence after that admission
should qualify him for cancellation of removal regardless of
the fact that he failed to acquire seven years residence after
his initial admission in 1994.
We disagree with Nelson’s characterization that the
―after having been admitted in any status‖ language
unambiguously shows a congressional intent to have the clock
restart following reentry.2 Viewed in context, the language
2 The parties dispute whether Nelson was in fact ―admitted‖
within the meaning of the statute when he returned from
Canada. The government argues that he was not admitted
because his 1999 conviction rendered him inadmissible to the
country, and an alien’s entry must be substantively lawful in
order to fall within the meaning of the statute. See 8 U.S.C. §
1101(a)(13); Gallimore v. Attorney General, 619 F.3d 216,
224-25 (3d Cir. 2010). Nelson counters that substantive
lawfulness is not required. Rather, he argues that the alien
need only show that he was allowed into the country after
inspection, i.e., that his admission was procedurally regular.
In re Quilantan, 25 I. & N. Dec. 285 (BIA 2010). We need
not resolve this dispute here, however, because we disagree in

-- 8 of 12 --

9
could also be subject to other reasonable interpretations. For
example, an alternative interpretation is that the ―after having
been admitted in any status‖ language simply means that the
seven-year period need not accrue entirely after admission as
a lawful permanent resident. The ―in any status‖ phrase could
show congressional recognition that an alien may initially be
admitted to the United States in some other status (e.g., on a
student visa, as a refugee, or some other nonimmigrant status)
and receive an adjustment of status to a permanent resident
sometime later. Under this interpretation, the statutory
language merely clarifies that such an alien does not begin
accruing time towards the seven-year period only after his
adjustment to permanent resident status. Rather, the alien
immediately begins accumulating time following his initial
admission, regardless of the status.
Furthermore, Nelson’s interpretation of the ―after
having been admitted in any status‖ language conflicts with
the plain language of the stop-time provision itself, which
distinguishes between certain events that merely break or
interrupt the accumulation of the statutory period (after which
a new period can restart) and events that terminate or end the
accumulation of a continuous period. If Congress had
intended the clock to restart after every reentry into the
country, it could have said so explicitly. Therefore, we cannot
agree that the statutory language is unambiguous on this
point.
2.
Because the statutory language does not
unambiguously provide for the beginning of a new period of
continuous residence following reentry, Nelson can prevail
only if he establishes that the BIA’s interpretation is
unreasonable. If the BIA’s decision is reasonable, we must
defer to it even if we would have adopted a different reading.
Yusupov v. Attorney General, 518 F.3d 185, 198 (3d Cir.
2008).
any case with Nelson’s argument that the statutory language is
clear and unambiguous.

-- 9 of 12 --

10
Nelson argues that the BIA’s decision is unreasonable
because it conflicts with our decision in Okeke v. Gonzales,
407 F.3d 585 (3d Cir. 2005). In that case, Anderson Jude
Okeke, a Nigerian citizen, first entered the United States in
1981 pursuant to a student visa to attend Touro College. In
1983, after returning to Nigeria for personal reasons, Okeke
attempted to reenter the United States and was arrested for
possession of marijuana. Okeke pleaded guilty and received a
sentence of five years probation. After returning from another
trip to Nigeria in 1984, Okeke lived in the United States
without interruption for about 13 years and overstayed his
student visa. In 1997, the government served him with a
notice to appear citing his 1984 entry to the country (not his
1981 or 1983 entries) and charging him with failing to comply
with the terms of his student visa because he no longer
attended Touro College. Okeke admitted the allegations in
the notice, but filed an application for cancellation of
removal. In the removal proceedings, the BIA concluded that
Okeke could not demonstrate the continuous physical
presence to qualify for cancellation of removal because his
commission of a controlled substance offense in 1983
triggered the stop-time provision and no further physical
presence could accrue after that point. Okeke appealed.
On appeal, a fractured panel of this Court disagreed
with the BIA and granted the petition for review. Although
the appeal resulted in three separate opinions, Nelson relies
exclusively on Judge Garth’s opinion. Judge Garth rejected
the government’s reliance on Mendoza—noting that it did not
address the issue of reentry—and instead relied on In re
Cisneros-Gonzales, 23 I. & N. Dec. 668 (BIA 2004)
(―Cisneros‖). Judge Garth read Cisneros as standing for the
proposition that, if an alien exits and reenters the country after
a clock-stopping event, he begins a new period of continuous
residence or presence. Therefore, Judge Garth found that
―[w]here, as here, there is (lawful) reentry after a clock-
stopping event (i.e., the commission of a controlled substance
offense), the clock starts anew.‖ Okeke, 407 F.3d at 590.
Although there is language in Okeke that undoubtedly

-- 10 of 12 --

11
supports Nelson’s argument, we cannot agree that the BIA
acted unreasonably in refusing to follow the decision in this
case. As the BIA correctly noted, the fractured nature of
Okeke makes it difficult to articulate a controlling rationale
that could be applied outside the specific facts of that case.
Even if we were to conclude that Judge Garth’s opinion
represents the controlling rationale, his opinion was based
heavily on his interpretation that reentry was the critical fact
for restarting the clock in Cisneros. The BIA, however, has
since rejected that interpretation, and concluded that Cisneros
―did not announce a broad proposition that reentries, legal or
illegal, will always restart the clock.‖ In re Nelson, 25 I. & N.
Dec. 410, 414 n.4 (BIA 2011). The BIA’s interpretations and
explanations of its own decisions are entitled to deference.
Moreover, Judge Garth himself expressly limited the
reach of his opinion in Okeke, and noted that he was not
addressing a case such as Nelson’s:
[T]his case is not about deporting an alien who
had committed a crime. The [Notice to Appear
(―NTA‖)] in this case made no reference to
Okeke’s alleged commission of the controlled
substance offense. The Court expresses no
opinion as to Okeke’s immigrant status had
such a charge been made, either when the action
was allegedly committed or when the NTA was
eventually filed.
Okeke, 407 F.3d at 590. Judge Garth emphasized that the
NTA cited Okeke’s entry into the country in May 1984 (after
the drug offense) and made no mention of (1) his earlier
entries into the country in 1981 and 1983; or (2) his controlled
substance offense in 1983. Therefore, Judge Garth found:
―[p]ursuant to the express terms of the NTA, then, it is that
final [May 1984] entry that should be considered in
calculating [his] continuous physical presence. To focus on
events occurring prior to that time, when the NTA makes no
mention of them, is both illogical and unjust.‖ Id. at 591
(emphasis supplied). Nelson, in contrast, cannot credibly
argue that it is ―illogical and unjust‖ to consider his 1999

-- 11 of 12 --

12
conviction when that conviction is explicitly referenced in the
amended notice to appear.
For all of these reasons, the BIA did not act
unreasonably in concluding that Judge Garth’s opinion in
Okeke did not control the outcome in this case. Rather, the
BIA’s conclusion that Nelson’s reentry did not restart the
clock is reasonable. The relevant portions of the statute are
completely silent as to the effect of a reentry, save for the
special rules providing that aliens who depart from the United
States for extended periods of time break or interrupt their
period of continuous residence/presence. 8 U.S.C. §
1229b(d)(2). If Congress had intended for an alien’s
departure from the United States to have any additional
significance, it would have explicitly said so. Furthermore,
there is no sound logical justification for attaching such
significance to departure from the country. An alien who
leaves for a two-day trip to Canada after committing a crime
and lives in the United States for seven years after returning
has no greater logical claim to be entitled to cancellation of
removal than a similarly-situated alien who never leaves the
country. Accordingly, the BIA’s decision not to make such a
distinction is reasonable and entitled to Chevron deference.

-- 12 of 12 --