Nelson v. Attorney General

685 F.3d 318, 2012 WL 2765862, 2012 U.S. App. LEXIS 14036
CourtCourt of Appeals for the Third Circuit
DecidedMay 22, 2012
DocketNo. 11-1654
StatusPublished
Cited by23 cases

This text of 685 F.3d 318 (Nelson v. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Attorney General, 685 F.3d 318, 2012 WL 2765862, 2012 U.S. App. LEXIS 14036 (3d Cir. 2012).

Opinion

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 [320]*320ounces 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 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)(i), 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 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 [321]*321opinion 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, 119 S.Ct. 1439, 143 L.Ed.2d 590 (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, 348 (3d Cir.2010).

A.

The relevant statute in this ease 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.

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Bluebook (online)
685 F.3d 318, 2012 WL 2765862, 2012 U.S. App. LEXIS 14036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-attorney-general-ca3-2012.