16 -1 46 5- ag(L)

Gomez Here dia v . Sessions UNITED STATES COURTOF APPEAL S F O R T H E S E C O N D C IR C U IT August Term, 2016 (Argued: May 5, 2017 De cided: July 27, 2017) Docket Nos . 16-1465-ag, 16-3346-ag

H O X Q U E L I N G O M E Z H E R E D I A , a/k/a O Q U E L I N G O M E Z H E R E D I A ,

a/k/a S O K E L I N H E R E D I A ,

Petitioner, — v. — J E F F E R S O N B. S E S S I O N S III, U N I T E D S T A T E S A T T O R N E Y G E N E R A L , Respondent

. *

Before : W A L K E R, L I V I N G S T O N , and L Y N C H , Circuit Judges

. Hoxquelin G omez Here dia seeks re view of two decisions of the Board of Imm igration Appeals denying himrelief. In the first challenged decision, the BIA dismi ssed the petiti oner’s appeal, affirming the Immi gration Judge’s conclusion

The Clerk ofCourt is directed to amend the captions as s et forth above

. *that he was a non-citizen convicted of drug offens es that made him i nadmissible

to the United States. In the second, the BIA denied the petiti oner’s moti on to reope n the proc eedings, concluding that he was not eligible for cance ll ation of removal, a discretionary form of relief from re moval that is avail able to lawful permanen t residents who mee t certain requirements. On appe al, the petiti oner contends that the BIA err ed in two ways. First, he argues that he should not have been treated as s eeking admission to the United States whe n he r eturned fr om a short trip abr oad in 2015. Second, he argues that he is eligible for cancellati on of removal because h is 1999 drug offense did not prevent him from accruing seven years ofresidenc y in the United States, which is a requirement for cancellati on of removal. We disagree. Accor dingly, the cons olidat ed petitions for review ar e DENIED. S ince we have completed our r eview, the pending motion for stay of removal is DENIED as moot.

W I L L I A M C. M E N A R D , Baurkot & Baurkot, Easton, PA (Raymond G. Lahoud, Norris, McLaugli n & Marcus, P.A., All entown, PA, on the brief ) forPetiti oner Hoxquelin G omez Here dia. V I C T O R I A B R A G A , Trial At torney (Surell Brady, Trial Att orney, Chad A. Readler , Acting Assistant At torney Gener al, and Cindy S. Fer rier, Ass istant Director, on the brief ), United States Dep artment of Justice, CivilDivision, Office of Imm igration Li tigat ion, Washington, D.C., for Responde nt Jeffer son B. Se ssions, III.

G E R A R D E. L Y N C H , Circuit Judge : Hoxquelin G omez Here dia (“Gom ez”) see ks review of two decisions of the Board of Immi gration Appeals (“BIA”) denying himrelief. In the first challenged decision, the BIA dism issed Gomez’s appeal, affirming the Immi gration Judge’s 2(“IJ”) conclusion that he was a non -citi zen convicted of drug offe nses that made him i nadmissible to the United States. In the se cond, the BIA denied Gomez’s moti on to reope n the proc eedings, concluding that he was not eligible for cancellati on of re moval, a di scre tionary form of relief from removal that is avail able to lawfulpermanen t residents who mee t certain requirements. On appeal, Gomez contends that the BIA erre d in two ways. Fi rst, he ar gues that he should not have bee n treated as s eeking admission to the United States whe n he returne d from a short trip abr oad in 2015. Second, he argues that he is eligible for cancellati on of re moval because his 1999 drug offens e did not preven t himfrom accruing seven years ofresidenc y in the United States, which is a requirement for cancellati on of re moval. We disagree . Accordingly, the consolidated petit ions for re view are DENIED. S ince we have completed our r eview, the pending motion for stay of removal is DENIED as moot. BACKGROUND Gomez, a nati ve and citizen of the Dominican Republi c, enter ed the United States as a lawful permanent re sident in August 1997. I n 1999, he was con victed of criminalposses sion of marijuana i n the fifth degree under N ew York Penal

3Law (“NYPL”) § 221.10. In 2010, he was convicted of criminalposses sion of a

narcotic (cocaine) with int ent to sell under NYPL § 220.16(1), which is an aggravated felony under the Imm igration and National ity Act (“INA”) because it is a drug trafficking offense. See8 U.S.C. § 1101(a)(43) (B); Harbin v. Sessions , 860 F.3d 58, 63 (2d Cir. 2017). In June 2015, Gomez took a short trip to the Dominican Republic. Upon his return, he was tre ated as a lawful permanent resident “seeking an admission into the Unit ed States” b ecause he had bee n convicted of an enumerated dr ug offense. 8 U.S .C. § 1101(a)(13)(C )(v); see id. § 1182(a)(2)(A)(i)(II ). That same day, he was char ged as inadmissible and subject to removal because of his two drug convictions. On January 12, 2016, after granting sever al conti nuances, an IJ or dere d Gomez removed. The IJ noted that Gom ez had not applied for cance ll ation of removal, a discretionary form of relief available to l awful permanent res idents who meet three requirements. Those r equirements, gener all y speaking, are: (1) five years of lawful admi ssion for pe rmanent re sidence; (2) se ven year s of continuous residence in the United States “after having bee n admit ted in any status”; and (3) no aggravated fe lony convicti ons. Id. § 1229b(a). Although the IJ did not reach the issue, Gomez was appar ently not eli gible for cancellati on of

4removal at the tim e of its decision because h is 2010 convicti on was for an

aggravated felony. 1 In May 2016, the BIA affi rmed. The BIA noted that “[r]elief from removal is not an issue on appe al,” Certified Admi nistrative Record (“CAR”) 79 n.1, meaning that G omez did not raise any issues re garding his eligibili ty for cancellati on of re moval. I nstead, Gomez argued that he sh ould not have been classified as seeking admission i n 2015 when he arrived home after his short trip to the Dominican Republi c. The BIA rejected that argument, re lyi ng on its prior decision, In re Collado-Munoz , 21 I. & N. Dec. 1061, 1063-66 (B.I.A. 1998), which held that the Il legal I mmi gration Reform and Imm igrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-546 (“II RIRA”), overruled the equitabl e doctrine (“ Fleutidoctrine”) that had allowed l awful permanent res idents to take innocent, casual, and brief trips abr oad without appl ying for admission upon

Gomez di scussed h is elig ibil ity for cancellati on of re moval at a Septembe r 1, 1 2015 hearing be fore the IJ. At thathearing, counse l for Gomez i ndicated that she had pre pared an applicati on for cance ll ation of removal, but that she had a “potential concern around e li gibil ity,” Certified Admi nistrative Record 164, because at the tim e counse l di d not know whether Gomez had in fact pl ed guilty to a drug trafficking crim e. Pres umably, once counsel discovered that Gomez had a conviction for an aggravated felony, she declined to pursue cance ll ation of removal. 5their return

. See Rosenberg v. Fleuti, 374 U.S. 449, 461-62 (1963). Thus, accor ding to

the BIA, Gom ez was pr operly subjected to r eadmission procedure s when h e arrived in the United States in 2015 under the relevant pr ovision of the INA as amended by IIRIRA, 8 U.S.C. § 1101(a)(13)( C)(v). The BIA also noted Gomez’s continued efforts to vacate his 2010 aggravated fe lony convicti on, and wrote that, if Gom ez succee ded in having any of his convicti ons vacated, he was free to ask the BIA to reopen h is case to consider the changed circumstances. In No. 16-1465, Gomez petit ions for re view of the BIA’s ini tialdismi ssal of his appeal, arguing that the BIA erred in concluding that he was prope rly treated as se eking admission when he re turned to New Yor k in 2015. Shortly after the BIA issued its first decision, a New York cour t vacated Gomez’s 2010 aggravated felony conviction and G omez pled guil ty to possession of a narcotic substance of one half ounce or more, NYPL § 220.16(12). The ne w conviction was not for a drug trafficking offense; thus, it is not an aggravated felony under 8 U.S .C. § 1101(a)(43)(B). Gomez then timely m oved to reop en his removal procee ding and appli ed for can cellati on of re moval. He argue d that, absen t the aggravated felony conviction, he was eligible for cance ll ation of removal, im plici tly cl aimi ng that he satisfied its other two requirements: that he

6was a lawfulpermanen t resident for more than five years an d that he had re sided

continuously i n the United States for more than seve n. See 8 U.S.C. § 1229b (a)(1)- (2). In September 2016, the BIA denied reope ning. Although the BIA acknowledged that Gomez no longer had an aggravated felony conviction, it determined that he had not de monstrated prima facie eligibili ty for cancellation of removal because h is 1999 marij uana offense triggered the “s top-tim e rule,” which preve nted him from accruing the required seven years ofcontinuous residency in the United States. The intricacies of the stop-time rule wil l be discussed in detail below. In No. 16-3346, Gomez seeks r eview of the BIA’s denial of his mot ion to reope n. He ar gues that the stop-time rule was not triggered until he appli ed for admission i n 2015 when he returne d from the Dominican Republic, and therefore that he accrued more than seven years ofcontinuous residency in the United States. His petitions for review have been consolidated. DISCUSSION The consolidated petiti ons for r eview raise two issues. First, Gomez contends that the BIA err ed in dismi ssing his init ialappeal because it m istakenly concluded that II RIRA overruled the Fleuti doctrine. See Fleuti, 374 U.S. at 461-62.

7Second, h e argues that the BIA abused its discretion in denying his m otion to

reope n because it i ncorr ectly held that he was ineli gible for cancellati on of removal because ofthe stop-time rule. For the followi ng reas ons, we find both arguments unper suasive. 2 I. IIRIRA overruled the Fleuti doctrine. “Under [ Fleuti ], a lawfulpermanen t resident of the United States was not subject to exclusion procee dings . . . if the lawfu l permanent re sident’s depar ture from the United States was an innoce nt, casual, and brief exc ursion.” Centurion v. Sessions , 860 F.3d 69, 72 (2d Cir. 2017) (internal quotati on marks omitt ed). “In other wor ds, lawful permanent residents could come and go from the United States on sh ort trips without formal ly seeking admi ssion.” Id. IIR IRA, however, changed the “immig ration law l andscape” with res pect to lawfulpermanen t

Because Gomez was dee med inadmi ssible due to a drug offens e, our r eview of 2 the petitions is l imi ted to constitut ional and other legal questions, 8 U.S.C. § 1252(a)(2)(C), (D ), which we review de novo , Chambers v. Office of Chief Counsel , 494 F.3d 274, 277 (2d Cir. 2007). Although we review questions of law de novo , we “must gi ve approp riate defer ence unde r Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc. , 467 U.S. 837 (1984), to the BIA’s published, pre cedential interpretations of the [INA].” Baraket v. Holder, 632 F.3d 56, 58 (2d Cir. 2011). Both petiti ons raise issue s of “legal prescr ipti on or statutory interpr etation,” which “we unambiguously have ju risdicti on to review.” Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010); see Harbin , 860 F.3d at 63 (adjudi cating petit ion concerning eligibili ty for cancellation of removal). 8residents leaving and re entering the United States. Id . As relevant he re, IIRIRA

amended the INA to provide that an “alien lawful ly admi tted for per manent residenc e . . . shall not be re garded as s eeking an admission into t he United States for purpo ses of the imm igration l aws unless the alien . . . has committ ed an offense identifi ed in [§] 1182(a)(2),” which includes drug offense s. 8 U.S.C

. § 1101(a)(13)(C)(v). S ince IIR IRA, therefore , “a lawfulpermanen t resident must seek for mal adm ission—even if returning fro m a brief trip abroad—if he has commi tted a drug offense .” Centurion , 860 F.3d at 72. “In turn, a law ful permanen t resident who has been convicted of or who admits comm itting a drug offense . . . is inadm issible.” Id. Gomez argues that he should not have be en treate d as see king admi ssion under 8 U.S .C. § 1101(a)(13)(C )(v) because his trip was “innocent, casual, and brief” under Fleuti, 374 U.S. at 462, and the BIA err ed in concluding that IIR IRA

overr uled the Fleutidoctrine. He is wrong. As we rece ntly explained, “[t]hrough 3

In support of his argument, Gomez incorrectly asser ts that the Fleutidoctrine 3 was a constituti onal rule protecting the due proce ss rights of lawful permanent residents. As the Cour t wrote in Fleuti, that decision rested on a “thr eshold issue of statutory interpretation,” not a constituti onal qu estion. Fleuti, 374 U.S. at 451; see Othi v. Holder

, 734 F.3d 259, 268 (4th Cir. 2013) (“ Fleutiwas unmistakabl y not a constituti onal case.”). 9the passage of IIR IRA i n 1996, Congr ess e nded the Fleutidoctrine.” Centurion , 860

F.3d at 72. We first reache d that conclusion i n Vartelas v. Holder , 620 F.3d 108, 116- 17 (2d Cir. 2010), rev’d on other grounds , 566 U.S. 257 (2012). Although the Supre me Court re verse d Vartelas in part, it “l eft untouched the por tion of our decision in which we deferr ed to the BIA and held that II RIRA overruled the Fleutidoctrine.” Centurion , 860 F.3d at 72 n.1 ; see also In re Collado-Munoz , 21 I. & N. De c. at 1065. “Thus, we adhere to the portion of our decision in Vartelas [] that remains good law, as we would i n any even t, since the BIA’s determination that IIR IRA overruled Fleutiwas reas onable.” Centurion , 860 F.3d at 72 n.1

. Because 4 Gomez comm itt ed both r elevant offense s after IIRIRAwent into effect in April 1997, see I.N.S. v. St. Cyr , 533 U.S. 289, 315 (2001); Centurion , 860 F.3d at 77-78, he is subject to 8 U.S.C. § 1101(a)(13)(C )(v). The BIA corre ctly conclu ded that Gomez was prope rly treated as se eking admi ssion when he arrived in the United States in 2015.

Every other Circuit to have considered whe ther IIRIRA overr uled the Fleuti 4 doctrine has also concluded that it di d. See, e.g. , Othi, 734 F.3d at 266-67; De Vega v. Gonzales , 503 F.3d 45, 48 (1st Cir. 2007); Camins v. Gonzales , 500 F.3d 872, 879-81 (9th Cir. 2007) ; Malagon de Fuentes v. Gonzales , 462 F.3d 498, 501-02 (5th Cir. 2006); Morales-Morales v. Ashcroft, 384 F.3d 418, 424 (7th Cir. 2004); Tineo v. Ashcroft, 350 F.3d 382, 396-97 (3d Cir. 2003). 10II. The stop-time rule prevented Gomez from accruing seven years of

continuous residency in the United States. In his second petition for review, Gomez contends that the BIA err ed in denying his moti on to reope n. “[A] motion to reopen asks that the pr oceedings be r eopene d for new e vidence and a ne w decision, usuall y after an evidentiary hearing.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001). According to the per tinent regulati on, a “motion to reopen proc eedings shall not be gr anted unless it appears to the Board that evidence s ought to be offer ed is material and was not avai lable and could not have been discover ed or pr esen ted at the former he aring.” 8 C.F.R. § 1003.2(c)(1). “[M]otions to reope n are ge nerally disfavored in light of the stron g public i nteres t in the final ity of removal orders.” Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (internal quotati on marks and citati on omitt ed). A “failure to establish a prima facie case for the underlying substantive relief sought [is a] proper ground[] on which the BIA may deny the motion to reopen.” Alam v. Gonzales , 438 F.3d 184, 187 (2d Cir. 2006); see Singh v. Mukasey, 536 F.3d 149, 155 (2d Cir. 2008). 5

We re view the denial of a mot ion to reopen for abuse of discr etion, which “may 5 be found in those c ircumstances where the Board’s de cision provides no rational explanation, inexplicably departs from established policies, is devoid of any reaso ning, or contains only summary or conclusory statements; that is to say, 11In denying Gom ez’s motion to reopen, the B IA concluded that he had not

demonstrated prima facie eligibili ty for cancellation of removal. The Board acknowledged that Gomez’s aggravated felony convicti on had be en vacated, but concluded that he was stillnot eligible for cance ll ation of removal because his 1999 mariju ana conviction prevented him from accruing seven years of continuous residency in the United States. On appeal, Gomez contends that the BIA abused its discretion by faili ng to explain its decisi on and other wise acting arbitrarily and capriciously. The INA provides in re levant part that the “Attorney General may cancel removal in the case of an alien who is inadmi ssible or dep ortable from the United States if the alien—(1) has bee n an alien lawful ly admi tted for per manent residenc e for no t less than 5 years , (2) has re sided 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). “[T]he r elief of cancellati on of re moval i s both discre tionary and prospe ctive in nature.” In re Perez , 22 I. & N. Dec. 689, 691 (B.I.A. 1999) (en b anc).

where the Board has acted in an arbitrary or capricious manner.” Indradjaja v. Holder , 737 F.3d 212, 218 (2d Cir. 2013) (internal quotati on marks omitt ed). “Underlying questions of laware r eviewed de novo .” Ri Kai Lin v. Bureau of Citizenship & Immigr. Servs ., 514 F.3d 251, 254 (2d Cir. 2008). 12At issue in thi s petition i s the se cond re qui rement, mandating that, to be

eligible for cance ll ation of removal, a l awful permanent res ident must accrue

seven years ofcontinuous residency in the United States. Regar ding that requirement, the INA further provides, as r elevant here , that:

any period of continuous res idence . . . in the United States shall be dee med to end (A) . . . when the ali en is serve d a notice to appear . . . , or (B) when the alien has commi tted an offense refe rre d to in [§] 1182(a)(2) of this tit le that render s the alien inadmi ssible to the United States under [§] 1182(a)(2) of this tit le or removable from the United States under [§] 1227(a)(2) [or (a)(4)] o f this ti tle, whichever is earliest. 8 U.S.C. § 1229b (d)(1). That provision is known as the “stop-time rule” because it preve nts a lawfulpermanen t resident from accr uing suffici ent continuous residenc y to be eligibl e for can cellati on of re moval. See Guamanrrigra v. Holder , 670 F.3d 404, 409 (2d Cir. 2012). Because Gomez was deemed inadmi ssible to the United States under § 1182(a) (2)(A)(i)(II ), we are c oncern ed only with the requirements for inadmissibil ity under that section. Section 1182(a)(2) is a 6

Gomez al so contends that, because the 1999 mariju ana conviction di d not rende r 6 him deportable under 8 U.S .C. § 1227(a)(2)(B)(i), his commi ssion of the offen se could not have triggered the stop-time rule. Whether Gomez was deportable, however , is irrelevant, since Gomez was rende red inadmissiblebased on the 1999 offense , which is suffici ent to meet the stop-time rule’s requirements. 13lengthy provision describing many circumstances in which non-citi zens ar e

inadmi ssible to the United States. As re levant here, the statute provides that:

any alien convicted of, or who admit s having commi tted, or who admits comm itt ing acts which constitute the essential elements of . . . a viol ation of (or a conspiracy or attempt to viol ate) any law or regulation of a State . . . relating to a controlled substance (as defined in [§] 802 of Titl e 21), is inadmi ssible. Id. § 1182(a)(2)(A)(i)(II ). Courts have descr ibed the stop-time rule as having two requi rements that must be satisfied in order to halt a lawfulpermanen t resident’s continuous residenc y in the United States. See, e.g. , Calix v. Lynch , 784 F.3d 1000, 1008 (5th Cir. 2015). First, the lawful permanent res ident must com mit a qual ifyi ng crime li sted in § 1182(a)(2). Gomez’s 1999 marij uana conviction constitutes such an 7 offense because it was a crim e involvi ng a controlled substance. See 8 U.S.C. § 1182(a)(2)(A)(i)(II ). Second , that offense must re nder the lawfulpermanen t resident inadmissible; that i s, a per son is only inadmissibledue to the commi ssion

Tim e is also stopped when the non-citizen is served a n otice to appear, 8 U.S.C

. 7 § 1229b(d)(1)(A), but that alternative way of triggering the stop-tim e rule is not at issue in this appeal because the s top-tim e rule halts the alien’s accretion of time in the United States upon the occurr ence of wh ichever alternative occurs first, see id. § 1229b(d)(1). Gomez was not ser ved with a notice to appear untilJune 2015, long after he had lived in the United States for se ven year s. 14of a qual ifying drug offens e if the pers on is “convicted of, or . . . admits having

commi tted, or . . . admits comm itt ing acts which constitute the esse ntialelements of” the offens e, id. § 1182(a)(2)(A)(i), and is not eli gible for other r elief from inadmi ssibili ty. See Calix , 784 F.3d at 1008. Gom ez was convicted of the 8 mariju ana offens e after pleading guilty in 1999 and appli ed for admission to the United States in 2015. The parties dispute pre cisely when Gomez was render ed inadmissibl e for purpose s of the stop-time rule, 8 U.S.C. § 1229b (d)(1)(B). The gover nment contends that Gomez was rende red inadmissible upon his convicti on for mariju ana posse ssion in 1999, see 8 U.S.C. § 1182(a)(2) (A)(i), whil e Gomez clai ms that he was not re ndere d inadmi ssible untilhe applied for admission in 2015. 9

As explained above , 8 U.S.C. § 1182(a)(2) is a lengthy provision governing 8 numerous circumstances in which a non-citizen is inadm issible to the United States. It also i ncludes criteria for various types ofrelief from inadmi ssibili ty. We do not attempt to cat alogue allof those circumstances h ere , nor sh ould thi s discussion be se en as an e xhaustive analysis of the possible ways that § 1182(a)(2) might rende r a per son inadmissibl e for pur poses o f the stop-time rule (or for any other pur pose). Instead, we focus only on the provisions that are e ssential to reso lvi ng Gomez’s appeal. Gomez di d not raise be fore the BIA the precise ar gument that he advances in 9 this appeal, although he discusse d the issue with the IJ during a September 2015 hearing. In his moti on to reope n, he ar gued gener all y that he was “ prima facie eligible for [c]anc ellati on of [r]e moval” aft er the 2010 c onvicti on was vacated. 15Although the “qu estion [appear s] difficul t because the concept of inadmissibil ity

is generally married to situat ions in which an ali en is actuall y seeking admission to the United States,” Calix , 784 F.3d at 1004, precede nt address ing the issue of when a pe rson is r ender ed inadmissibl e has sided with the gover nment. In those cases, othe r Circuits and the BIA have concluded that a lawful permanent resident ne ed not apply for admission to be ren dere d inadmi ssible under the stop-tim e rule. See, e.g. , Calix, 784 F.3d at 1008-09; Ardon v. Attorney Gen. of U.S. , 449 F. App’x 116, 118 (3d C ir. 2011) ; In re Jurado-Delgado , 24 I. & N. Dec. 29, 30-31 (B.I.A. 2006). Those rulings are con sistent with the relevant language of § 1182(a)(2), which provides that “any alien convicted of, or who admits havi ng commi tted, or who admit s commi tti ng acts which constitute the essential elements of . . . a viol ation of (or a conspiracy or attempt to violat e) any law or re gulati on of a State . . . relating to a controll ed subs tance . . . is inadmissible .” 8 U.S.C. CAR 22 (Gomez’s moti on to reope n). That clai m prompted the BIA to consider the other r equirements for cancellation of removal, i ncluding the continuous residenc y requirement at issue here . Because Gomez raised the issue of his eligibili ty for cancellation of removal, and the BIA rul ed on the issue ofthe stoptim e provision that we addres s in this appeal, we reject the gover nment’s perfunctor y argument that Gom ez failed to exhaust the issue be fore the BIA. See Xian Tuan Ye v. Dep’t of Homeland Sec ., 446 F.3d 289, 296-97 (2d Cir. 2006). 16§ 1182(a)(2)(A)(i)(II ) (emphasis added). In other words, the s tatute appears to

indicat e that a non-citizen becomes inadmissible when he is convicted of or admit s commi tti ng a qual ifyi ng drug offens e. According to the Oxford English Dictionary(3d ed. 2011), “inadmissibl e” means not admissible, and “admissibl e” means “ [c]apable of being or having the right to be admitted to a place.” (Emphasis added.) The plain language of the statute thus suggests that one who has b een convicted of a controlled substance offe nse is no longer capable of be ing admit ted to the United States, should he eve r apply; it i s not nece ssary to apply and be r efused admission for one to be, in fact and in law, not capable of being admit ted. The BIA has adopted that interpre tati on, concluding that an al ien is rende red inadmissible for purpose s of § 1229b(d)(1)(B) wh en the alien “become[s] inadmissible . . . , i.e ., [is] potential ly removable if so charged.” In re Jurado-Delgado , 24 I. & N. Dec. at 31 (internal quotati on marks omitt ed). Since the stop-tim e rule incorpor ates the pr ovisions governing inadmi ssibili ty in § 1182(a)(2), it appears that Gomez was rende red inadmissible when he was convicted of the marijuana offense in 1999, although he did not apply for

17admission unti l 2015. 10

We nee d not definiti vely decide when Gomez was render ed inadmissibl e, however . Both parties agree that he was in fact rende red inadmissible—either in 1999, when he was convicted of the offens e, or in 2015, when he applied for and was denied admission. In arguing that he was not r ender ed inadmissibl e until 2015, Gomez further claim s that the date on which he was r ender ed inadmissibl e must be used to calculat e his per iod of residency. That is, in his view, ti me was At oral argument, Gom ez also relied on a case n ot cited i n his brief: Reyes v. 10 Holder , 714 F.3d 731 (2d Cir. 2013). In Reyes , we interpre ted 8 C.F.R. § 1240.66(b)(1), a re gulatory provision promul gated pursuant to the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No. 105-100, 111 Stat. 2193. Reyes , 714 F.3d at 732. Although the titl e of that regulation refer s to “cancellati on of re moval,” i ts text differs sub stantial ly from the text of the stoptim e rule, 8 U.S.C . § 1229b(d)(1). For e xample, 8 C.F.R. § 1240.66(b)(1) pr ovides that a person may be eligible for “spe cial rul e cancellation of removal” i f the pers on is “not inadmi ssible under [§ 1182(a) (2)] . . . or dep ortable.” In contrast, the stop-time rule provides that a perso n stops accr uing conti nuous res idency in the United States when h e “has committ ed an offen se . . . that ren ders [ him] inadmi ssible to the United States . . . or r emovable from the United States.” 8 U.S.C. § 1229b (d)(1)(B). In Reyes , we held that a non-citizen could not be deemed “deportable” unde r that regulation if the per son had not be en admitted to the United States. 714 F.3d at 732-33. Gomez contends that we should extend Reyes and conclude her e that a non-citizen could not be render ed inadmissibl e until he sought an admission to the United States. Whatever limi ted relevance Reyes might have in discerning when a lawful permanent re sident is render ed inadmi ssible under the stop-tim e rule—and we do n ot suggest that it has any—we nee d not decide that issue because there is no dispute that the 1999 mariju ana conviction di d ulti mately render Gomez inadmi ssible. 18not stopped until 2015. Al though we have not squarely addre ssed Gomez’s

precise ar gument, our prece dent requires us to r eject it. We have r epeatedly held “that the stop-time rule is tri ggered on the date an alien comm its a predicate offense ,” not on the date of his subs equent conviction. Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011). We have admit ted no ambigui ty on this point, explai ning that “i t is the date of the commi ssion of the offense —not the date of the sub sequent conviction—that m atters for p urposes of computi ng an alien’s period of continuous res idence.” Martinez v. I.N.S. , 523 F.3d 365, 369 (2d Cir. 2008). That reading “be st comports with a natural reading of the statute[,] . . . [which] strongly suggests that it i s the commission of the acts that constitute the offense, n ot convicti on for the of fense , that controls.” Baraket, 632 F.3d at 59-60 (citi ng In re Perez , 22 I. & N. Dec. at 693); see Centurion , 860 F.3d at 75 (collecti ng cases) ; see also Santos-Reyes v. Attorney Gen

. of U.S. , 660 F.3d 196, 199 (3d Cir. 2011) (“All points of refere nce lead to the conclusion that the phrase ‘has commi tted’ in [§] 1229b(d)(1) means the stop-time rule is triggered . . . by an ali en’s cr imi nal conduct occurring on a particular date befor e the en d of the

seven th year of continuous re sidence.”). We h ave neve r held that the date on which a lawfulpermanen t resident is ren dere d inadmi ssible is relevant for

19calcul ating his conti nued re sidency in the United States. Just as we said in

Baraket, 632 F.3d at 59-60, the language of the statute strongly supports our reading: § 1229b(d)(1) pr ovides that an ali en’s “pe riod of continuous residence . . . shall be deemed to end . . . whe n the alien has committed an offens e re ferr ed to in [§] 1182(a)(2).” (Emphasis added.) To be sur e, the offe nse must ren der the n onciti zen inadmissible, but the dateon which he is ren dere d inadmi ssible is of no consequence to de termining the date as of which his period of continuous residenc e is deemed to have e nded. The BIA (sitti ng en ban c) has re ached the s ame conclusion about the relationship between the date of the commission of an offense and the separ ate requirement that the offense “rende rs the alien inadmissibl e,” 8 U.S.C

. § 1229b(d)(1)(B), albeit in a case principally concerning the retro activi ty of the stop-tim e rule. Ther e, the BIA explained that the “‘ren ders’ c lause does not impose a separate te mporal requirement. Rather, it i s a res tricti ve clause which modifi es the wor d ‘offense ’ by lim iti ng and defining the types of offe nses wh ich cut off the accrual of further time as of the date of the ir commi ssion.” In re Perez ,

2022 I. & N. Dec. at 693. In other words , no matter when a pe rson is “r ender ed 11 inadmi ssible” under § 1229b (d)(1)(B), the date of his commission of a qual ifyi ng offense “is the criticalpoint in time when calcul ating the statut orily requi red period” of re sidency, In re Perez , 22 I. & N. Dec. at 693. The BIA emphasized that the “statute does not identify the date that the final step for inadmi ssibili ty or removability occurs as the date that the further ac crual of tim e terminates.” Id. “To the contrary, it clearly defines the ter minat ing point” as the ti me when the pers on commi tted the offense

. Id. 12

We have de clined to defer to the por tion of the BIA’s opini on in Perez 11 discussing retroactivity because the issue of r etroactivity“does not conce rn the sort of statutory gap that Congr ess has designated the BIA to fil l, nor a matter in which the BIA has particular exper tise.” Martinez , 523 F.3d at 372-73. We have never disapproved of its gene ral discussion of the triggering date for the s toptim e rule, howeve r. Indeed, we cited that portion of Perez approvingly in Baraket, 632 F.3d at 59-60. That aspect of the BIA’s discussion relates to the interpr etation of the INA, a subject that is wellwithi n the ex pertise of the BIA to which we normally defer. We note that the dissen ters in Perez sought to read the r elevant date stopping 12 tim e as the date that the “alien is rende red inadmissible or removable,” In re Perez , 22 I. & N. Dec. at 699, which is the same argument that Gomez advances here . In rejecting that vi ew, the BIA majority noted that using the tim e at which the non-citizen was “ren dere d inadmi ssible” as the “cutoff date . . . would leave no role for the ‘has commit ted’ language” in the statute, and woul d theref ore b e contrary to the s tatutory text. Id. ; see id . at 702-03 (Guendelsberge r, Board Member, disse nting). 21The BIA’s reason ing is consistent wi th our cases holding thatthe date of

the commi ssion of the quali fying offense con trols the calculat ion of a person ’s continuous residency in the United States. See, e.g. , Baraket, 632 F.3d at 59-60. In other wor ds, the stop-time “rule is unconcerne d with the particul ar eve nts that give rise to the alien’s removal; indeed, it operates the same way no matter what brought about the r emoval.” Jaghoori v. Holder, 772 F.3d 764, 773 (4th Cir. 2014); see In re Jurado-Delgado , 24 I. & N. Dec. at 30-31 (holding that a l awful permanent resident was r ender ed inadmissibl e even though he was not char ged as inadmi ssible base d on the crime that precluded him from accruing seven ye ars of continuous residence ). Simi larly, the Fi fth Circuit acknowledged that the date of the commi ssion of an offen se contro ls the computati on of re sidency, holding that an alien’s “continuous residence e nded . . . when he commit ted an offens e that rende red him inadmi ssible”; in other words , “[h]is accrual of continuous residenc e was halted as of the date h e commit ted [the] offen se.” Calix , 784 F.3d at 1011, 1012. 13

At issue in Calix was whether the petitioner’s conviction of marij uana 13 posses sion rende red him inadmi ssible to the United States even though he did not apply for readmission. Calix , 784 F.3d at 1002, 1004. Calix was deportable based on a cocaine offens e that he commit ted after he had bee n in the United States for the required seve n years , id. at 1005 n.3; thus, his eligibili ty for 22The plain l anguage of the statute and the case s interpre ting i t therefor e

demonstrate that, even assuming that the “re nders . . . inadmi ssible” clause contains a separ ate requirement that must be satisfied i n order to halt a l awful permanen t resident’s continuous re sidency in the United States, and eve n if that requirement is not satisfi ed (as Gomez contends) until the ali en applies for admission, once inadmi ssibili ty is determined, it i s the date of the co mmi ssion of the offens e that controls our calculati on of the per iod of residency. “The language chosen by Congr ess [thus] dire cts that an ali en ceas e accruing the time required to establish eligibili ty for the re li ef of cance ll ation of removal at the point where he or s he abuse s the hosp ital ity of thi s country by committ ing one of the designated offens es, so long as the o ffense subse quentlyrende rs the alien inadmi ssible or re movable.” In re Perez , 22 I. & N. Dec. at 700; see Reid v. Gonzales , 478 F.3d 510, 512 (2d Cir. 2007). We agr ee with the BIA that i t “would strai n our reading of [§ 1229b(d)(1)] to interpret the s tatute as permitti ng any date to be

cancellati on of re moval turned on the consequences of his earlier marijuana conviction and whether that conviction render ed him inadm issible for purpose s of the stop-time rule. The court concluded that itdid, because C ali x could have been charged as inadmi ssible base d on the marijuana offense had he sought admission to the United States at that tim e, and ther efore the commi ssion of the offense preve nted him from accruing seven year s of continued res idency. Id. at 1012. 23used for calculating the per iod of continuous residence . . . other than the date the

offense was commi tted.” In re Perez , 22 I. & N. Dec. at 693; see Baraket, 632 F.3d at 57, 59. In short, when a n on-citizen is rendere d inadmi ssible—by a conviction, admission of the crimi nal conduct, or through some other means—the stop-time rule may make himineli gible for cancellati on of re moval, i f, as of the date of his commission of the under lyi ng offense , he had not yet r esided in the United States continuously for seven year s. To state it another way: as long as a qual ifyi ng offense later does rende r the non -citi zen inadmissible under 8 U.S.C. § 1182(a) (2), the date of the commission of the offens e gover ns the computation of a law ful permanen t resident’s continuous re sidency in the United States. Accordingly, even if Gomez is correct that he was n ot rende red inadmissible unti l 2015—a position that w e find dubious—his comm ission of the 1999 offense would sti llbe the oper ative date for purpose s of calculati ng his period of re sidency in the United States. We reject Gom ez’s attempt to transform the “‘that ren ders’ c lause . . . [into] a separate temporal re qui rement,” be cause such a r eading “would result in a conflict

with the temporal requi rement already in the plain language of the statute, namely, the provision that ti me is stopped once an alien ‘has

24commi tted’ a relevant offens e.” Baraket, 632 F.3d at 60 (internal quotati on marks

omit ted). The BIA therefor e did not abuse its discretion in denying Gom ez’s motion to reopen because he did not demonstrate prima facie eligibili ty for cancellation of removal. Gom ez enter ed the United States as a lawful permanent re sident in 1997 and was convicted of marijuana possession in 1999. Because his period of continuous residence is deemed to have en ded as of the date of his commi ssion of that offense, h e thus accrue d fewer than seven years of continuous residency in the United States. Gomez’s attempt to characterize the BIA’s denial of hi s moti on to reope n as impermissibly “sum mary and conclusory,” Pet. Br. 22, is unavail ing. The BIA considered whethe r the 1999 marijuana offense tr iggered the stop-tim e rule and pr ovided adequate, legal ly correct re asons for concluding that it di d. CONCLUSION For the for egoing reason s, the cons olidat ed petitions for review ar e DENIED. S ince we have completed our r eview, the pending motion for stay of removal is DENIED as moot.

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