2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-14-2006

Castello-Diaz v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4457

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 03-4457 & 05-3166

ABEL CASTELLO-DIAZ,

Petitioner

v.

*ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

(*Substituted pursuant to Rule 43(c), Fed. R. App. P.)

On Petition for Review of a Decision of the

Board of Immigration Appeals

(BIA No. A29 109 758)

(Immigration Judge: Honorable Craig DeBernardis)

No. 03-4457

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 10, 2005

No. 05-3166

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 14, 2005

Before: SCIRICA, Chief Judge, ROTH and ALDISERT, Circuit Judges

(Filed April 14, 2006)
 Also before this Court is Castello-Diaz’s Petition for Writ of Habeas Corpus, filed in 1

the Eastern District of Pennsylvania, No. 05-3166. Pursuant to the Real ID Act of 2005,

Pub. L. 109-13, 119 Stat. 231 (2005), habeas corpus petitions brought by aliens

challenging an order of removal, and pending as of May 11, 2005, are to be converted to

petitions for review and transferred to the appropriate Court of Appeals. See Real ID Act,

Pub. L. 109-13, Div. B, Title I, § 106(c). Per Castello-Diaz’s request (in his Motion to

Consolidate and to Remand Selected Issue to the District Court), because his habeas

petition and his petition for review raise substantially similar issues, the cases are hereby

consolidated.

Additionally, Castello-Diaz requests that we examine whether 8 U.S.C. § 1229b(d)

has been properly construed, and argues that its impact on 8 U.S.C. § 1254(a) (repealed)

creates an “absurd result” that is “not in the interests of justice or fairness.” Because the

issue was not raised in either his habeas petition or his petition for review, and because it

is unclear on what basis Castello-Diaz asks us to reinterpret 8 U.S.C. § 1229b(d), we will

not address the issue.

Finally, Castello-Diaz requests that we withhold our decision in No. 03-4457, and

remand No. 05-3166 to the District Court. For reasons stated below, we will deny both

requests.

 On March 1, 2003, the INS ceased to exist and its functions were transferred to the 2

Bureau of Citizenship and Immigration Services within the Department of Homeland

Security. See Homeland Security Act, 6 U.S.C. § 271, Pub. L. 107-296, 116 Stat. 2135

(Nov. 25, 2002).

2

OPINION OF THE COURT

SCIRICA, Chief Judge.

Petitioner Abel Castello-Diaz appeals the final order of the Board of Immigration

Appeals (“BIA”) entered on November 4, 2003. We will deny the petition. 1

Background

Castello entered the United States on May 3, 1986. In 1991, the Immigration and

Naturalization Service (“INS”) commenced deportation proceedings against petitioner 2
 Section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1), was 3

repealed by the Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996)

 An alien was eligible for suspension of deportation under former section 1254(a) 4

upon showing: (1) he had been “physically present in the United States for a continuous

period of not less than seven years immediately preceding the date of [the] application,”

(2) he was a “person of good moral character,” and (3) deportation would result in

“extreme hardship” to the alien or an immediate family member who was a U.S. citizen or

lawful permanent resident. INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (repealed).

3

through issuance of an Order to Show Cause (“OSC”), charging him with deportability

under 8 U.S.C. § 1251(a)(2) for remaining in the United States longer than permitted. A

final hearing was scheduled before Immigration Judge Robert D. Vinikoor for December

12, 1991.

At the hearing before IJ Vinikoor, petitioner conceded deportability and his case

was transferred to IJ Gossart in the Immigration Court in Baltimore, Maryland. An

individual calendar hearing was scheduled for April 24, 1992. This hearing was then

rescheduled, by IJ Gossart, for July 21, 1992.

On July 21, 1992, IJ Gossart denied petitioner’s application for suspension of

deportation, on the grounds that he was statutorily ineligible for suspension under former

8 U.S.C. § 1254(a)(1) due to petitioner’s 1988 conviction for retail theft. Castello 3

appealed this order to the BIA on July 23, 1992.

On December 9, 1995, the BIA remanded petitioner’s case to the Immigration

Court because during the time his case was pending before the BIA, petitioner had

become eligible for suspension of deportation under 8 U.S.C. § 1254(a). On February 4
 There is no evidence that Castello requested re-scheduling. All changes to the date of 5

his hearing appear to have been initiated by the court.

 Prior to the enactment of IIRIRA, charging documents which began deportation 6

proceedings were called Orders to Show Cause. As part of the change in the overall

scheme of immigration law, Congress changed the name of this document to a “notice to

appear.” 8 U.S.C. § 1229(a).

4

23, 1996, IJ Debernardis explained to Castello that he was re-eligible for suspension of

deportation due to his accrual of seven years of continuous presence in the United States,

and a hearing on the merits was set for May 15, 1996. On May 15, 1996, IJ Debernardis

rescheduled the hearing for July 23, 1996. On July 23, 1996, IJ Debernardis rescheduled

the hearing again, this time for October 25, 1996. By the date of Castello’s hearing in 5

October of 1996, Congress had enacted the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996).

At the October 25, 1996 hearing, the INS challenged petitioner’s eligibility for

suspension under newly enacted § 309(c)(5) of IIRIRA, which prevented an alien from

accruing “continuous physical presence” following service of a notice to appear.6

Castello was served with an OSC in 1991, approximately four years and nine months after

entering the United States. IJ Debernardis reserved his ruling on the INS’s challenge and

allowed petitioner to present all evidence in support of his application for suspension. 

The parties were directed to submit memoranda regarding application of IIRIRA § 309 to

petitioner’s application for suspension of deportation.
5

On September 27, 1997, almost a year after petitioner’s hearing, the IJ informed

the parties that he had reserved decision pending review of In re N-J-B-, 21 I .& N. Dec.

812 (BIA Feb. 20, 1997), in which the BIA held service of an OSC ended an alien’s

period of continuous physical presence in the United States. Because the Attorney

General had vacated the N-J-B- decision, however, the IJ informed the parties on

September 27, 1997, that he was going to advise the Chief Immigration Judge of his

desire to grant petitioner application for suspension of deportation contingent upon the

availability of visa numbers. The Chief IJ, however, had ordered all suspension of

deportation applications to be delayed because Congress was planning to enact new

legislation clarifying IIRIRA § 309(c)(5).

On November 19, 1997, Congress enacted the Nicaraguan Adjustment and Central

American Relief Act of 1997 (“NACARA”), Pub. L. No. 105-100, 111 Stat. 2160, which

clarified that, upon service of an OSC, an alien stops accruing time toward the seven-year

physical presence. The IJ granted petitioner the opportunity to file a motion asserting

whether he had established seven years of continuous residency in the United States

despite his absence in the mid-1980s while he served in the Spanish military.

On May 3, 1999, the IJ denied petitioner’s application for suspension of

deportation on the grounds that he could not meet the continuous physical presence

requirement:

But for his inability to meet this requirement, the Immigration Court would have

granted suspension of deportation to the respondent. His criminal conviction is
 “Suspension of deportation” was a form of relief from deportation prior to the passage 7

of IIRIRA. Section 308(b)(7) of IIRIRA eliminated “suspension of deportation,” and §

304 created a new form of relief known as “cancellation of removal.” Because Castello’s

proceedings were initiated prior to the effective date of IIRIRA, suspension of

deportation was the type of relief potentially available to him at that time.

6

now more than ten years in the past. He would indeed suffer “extreme hardship” if

required to depart from the United States at the present time. All of his family

members live in the United States, all of whom have legal status in this country. 

Respondent has devoted himself to working as a practical nurse in a nursing home

for many years, thoroughly integrated himself into the community of the United

States, and provided good works for the community as well. With the exception of

the one year that he spent in the Spanish army, the respondent has lived in the

United States for the past 25 years. All of his formative experiences have been in

this country. Deportation from the United States at this stage in his life will indeed

be an “extreme hardship” for him. Nevertheless, the respondent is unable to meet

the continuous physical presence requirement of the law.

Immigration Court, May 3, 1999 (J.A. at 14-15).

Pursuant to 8 C.F.R. § 1003.1(e)(4) (2003), on November 4, 2003, the BIA

affirmed without opinion the IJ’s decision that Castello was ineligible for suspension of

deportation. The oral decision of the IJ is the final agency determination. See 8 C.F.R. § 7

1003.1(e)(4)(ii). Castello filed a timely petition of review in this court. We have

jurisdiction under 8 U.S.C. § 1105(a) as amended by IIRIRA § 309(c)(4).

Standard of Review

When the BIA affirms without opinion under 8 C.F.R. § 1003.1(e)(4), we review

the IJ’s opinion. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We review

factual findings for substantial evidence and legal determinations de novo. See Wang v.

Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004).
7

Discussion

Castello claims that the IJ erred in its application of IIRIRA’s “stop-time”

provisions to the calculation of his continuous physical presence in the United States. 

According to petitioner, the delays in his deportation proceedings—which he claims were

caused entirely by the INS—resulted in application of more stringent calculation

standards than would have been applied had his case been evaluated on the merits when it

was first scheduled for hearing. If the IJ had not repeatedly rescheduled his hearing,

Castello argues, his case would have been decided under the pre-IIRIRA and preNACARA rules. Under these rules, his application for suspension of deportation would

have been granted. He believes the Immigration Court’s delays, therefore, violated his

due process rights by effectively denying him relief which would have otherwise been

available to him.

I.

Prior to 1996, § 244(a) of the INA gave the Attorney General broad discretion to

grant suspension of deportation to illegal aliens who satisfied certain requirements. See 8

U.S.C. § 1254(a) (1994) (repealed 1996). “Suspension of deportation” was available to

aliens who could demonstrate seven years continuous physical presence in the United

States, good moral character, and prospective “extreme hardship” to himself or to his

immediate family members upon his removal. Id. One of the defects of § 244’s

discretionary relief was that it encouraged illegal aliens to prolong their deportations
 The full text of 8 U.S.C. § 1229b(b)(1) reads: 8

The Attorney General may cancel removal of, and adjust to the status of an alien

lawfully admitted for permanent residence, an alien who is inadmissible or

deportable from the United States if the alien—(A) has been physically present in

the United States for a continuous period of not less than 10 years immediately

preceding the date of such application; (B) has been a person of good moral

character during such period; (C) has not been convicted of an offense under

section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title (except in a case

described in section 1227(a)(7) of this title where the Attorney General exercises

discretion to grant a waiver); and (D) establishes that removal would result in

exceptional and extremely unusual hardship to the alien's spouse, parent, or child,

who is a citizen of the United States or an alien lawfully admitted for permanent

residence.

8

proceedings, in order to accrue seven years of residency in the United States and then

apply for suspension of deportation. 

With the enactment of IIRIRA in 1996 Congress made several significant changes

to the immigration laws, including limiting the availability of discretionary relief from

deportation. Particularly relevant to this case, IIRIRA limited the availability of

“suspension of deportation.” Congress replaced “suspension of deportation” with

“cancellation of removal” and made the eligibility requirements somewhat stricter,

changing the required period of physical presence from seven to ten years. See 8 U.S.C. §

1229b(b)(1)(A).8

A key change in immigration law under IIRIRA concerns how to calculate the time

of an alien’s “continuous physical presence” in the United States for purposes of

eligibility for cancellation of removal. Prior to the enactment of IIRIRA in 1996, accrual

of “continuous physical presence” began upon the alien’s entry into the United States and
 Section 1229b(d)(1), titled “Termination of Continuous Period,” provides as follows: 9

For purposes of this section, any period of continuous residence or continuous

physical presence in the United States shall be deemed to end (A) except in the

case of an alien who applies for cancellation of removal under subsection (b)(2) of

this section, 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

under section 1182(a)(2) of this title or removable from the United States under

section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.

8 U.S.C. § 1229b(d)(1).

9

continued to accrue during deportation proceedings. Under IIRIRA, however, the

initiation of removal proceedings by the INS “stops the clock” on an alien’s accrual of 9

“continuous physical presence.” This change was specifically designed to eliminate the

problem of aliens prolonging their deportation proceedings in order to satisfy the

continuous physical presence requirement. IIRIRA § 309(c)(5) now provides that “any

period of continuous residence or continuous physical presence in the United States shall

be deemed to end . . . when the alien is served a notice to appear under section 1229(a) of

this title” or when the alien is convicted of one of several specified offenses, “whichever

is earliest.” 8 U.S.C. § 1229b(d)(1); see also NACARA § 309(c)(5) (amending IIRIRA §

309 to clarify that the new accrual rules applied to proceedings initiated by way of an

Order to Show Cause, in addition to those initiated by service of a Notice to Appear). 

This is referred to as the “stop-time” rule.

Deportation proceedings pending at the time of IIRIRA’s enactment were

generally excluded from the Act’s changes. Certain provisions, however, were made
10

applicable to pending cases as well as new cases. Section 309(c)(5) of IIRIRA, as

modified by section 203(a)(1) of NACARA (Transitional Rules With Regard To

Suspension Of Deportation), states in relevant part that the stop-time rule “shall apply to

orders to show cause . . . issued before, on, or after the date of the enactment of this Act.” 

IIRIRA was enacted September 30, 1996 and took effect April 1, 1997. NACARA’s

amendments to it were effective “as if included in the enactment” of IIRIRA. NACARA

§ 203(f); 8 U.S.C. § 1101 note (Supp. IV 1998).

The text of these statutes establishes Congress’s intent to apply the stop-time rule

to all cases, including those—like Castello’s—which were pending as of September 30,

1996. NACARA § 203(f); see also “Explanatory Statement of the Senate Committee on

Appropriations,” 143 Cong. Rec. S12658-01, S12660 (1997) (“Section 203 modifies

certain transition rules established by IIRIRA with regard to suspension of deportation

and cancellation of removal. The changes state that the ‘stop time’ rule established by

that Act in section 240A of the INA shall apply generally to individuals in deportation

proceedings before April 1, 1997, with certain exceptions.”). Accordingly, for

deportation proceedings pending on September 30, 1996, accrual of “continuous physical

presence” in the United States for purposes of suspension eligibility ended upon service

of an OSC.
11

II.

The INS initiated deportation proceedings against Castello in the winter of 1991 by

service of an Order to Show Cause. The IJ reasoned that because IIRIRA’s stop-time rule

applied to Castello, the OSC stopped the clock on his accrual of continuous physical

presence in the United States. Because only four years had passed at the time proceedings

commenced, the Immigration Judge found Castello ineligible for suspension of

deportation under INA § 244(a) as amended by IIRIRA § 309(c).

Petitioner’s primary argument on appeal involves the delays which occurred during

his deportation proceedings. Had his hearings proceeded as scheduled, he claims, he

would have been evaluated under the more lenient rules in place prior to enactment of

IIRIRA. He cites Aoun v. I.N.S., 342 F.3d 503 (6th Cir. 2003), for support.

In Aoun, the INS commenced deportation proceedings in August 1985 against

Nemer Ahmad Aoun, an illegal alien who entered the United States in October 1978. 

After four years of proceedings, his case was administratively closed by the BIA. The

INS moved to re-calendar the appeal in late 1993. In June 2000, the BIA reinstated the

proceedings and dismissed his appeal. Aoun moved to reopen his application for

suspension of deportation, which was summarily denied by the BIA on grounds that,

under the IIRIRA, his continuous physical presence in the United States ended with

service of the OSC on August 15, 1985. Due to his failure to satisfy the continuous
12

presence requirement, the BIA found him ineligible for suspension. Aoun, 342 F.3d at

504–05.

The Sixth Circuit reversed, noting that the lengthy delays in his case, which caused

his eligibility to be evaluated under stricter rules, were not his fault:

Had Aoun’s application not been delayed by an “administrative closure” of

his application by the INS in the late 1980s, he would have had his

application ruled on well before the new rules took effect in 1997 and he

would have been subject to the former rule that allowed him to accrue time

towards continuous physical presence during the pendency of the

proceedings. . . . As a result of the INS’s administrative closure of Aoun’s

appeal, he was denied the benefit of the earlier, more lenient rules

concerning accrual of time towards continual physical presence in the

United States. Because the administrative closure was not the fault of

Aoun, he should not suffer the extremely adverse results that flowed from

that decision.

Id. at 507. Castello argues the reasoning of Aoun compels a similar result in his case.

Aliens in removal proceedings are entitled to due process, though the procedural

protections accorded to them in that context “measure less than the panoply available to a

criminal defendant.” United States v. Torres, 383 F.3d 92, 103 (3d Cir. 2004) (citing Dia

v. Ashcroft, 353 F.3d 228, 238-39 (3d Cir.2003) (en banc)). In the removal context, “due

process requires that an alien who faces [removal] be provided (1) notice of the charges

against him, (2) a hearing before an executive or administrative tribunal, and (3) a fair

opportunity to be heard.” United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002)

(citing Kwong Hai Chew v. Colding, 344 U.S. 590, 597-98 (1953)). Castello does not

contend he was denied any of these. Rather, he argues that the repeated delay of his
13

merits hearing ultimately denied him due process by subjecting him to newer—and more

stringent—eligibility rules.

But cancellation of removal relief is discretionary, and it is well-established that no

due process violation arises from the denial of discretionary relief. In United States v.

Torres, this Court joined our sister circuits in holding that “because discretionary relief is

necessarily a matter of grace rather than of right, aliens do not have a due process liberty

interest in consideration for such relief.” 383 F.3d at 104. Castello had no “right” to

relief from deportation; thus denial of such relief cannot rise to the level of a due process

violation. See also Pinho v. I.N.S., 249 F.3d 183, 189 (3d Cir. 2001) (suspension of

deportation is discretionary relief that does not impair any vested rights and does not give

rise to due process violations); Tefel v. Reno, 180 F.3d 1286, 1301 (11th Cir. 1999) (“No

constitutionally protected interest arises from the INS’s actions in granting or denying

applications for suspension because the Attorney General exercises ‘unfettered’ discretion

over applications for suspension. Therefore, regardless of the ultimate disposition of an

application for suspension of deportation, Plaintiffs do not possess a constitutionally

protected interest in their expectancy of receiving suspension.”).

III.

Next, Castello claims that he was denied due process and equal protection by the

Chief Immigration Judge’s directive that decisions in cases pending in October 1997 be

reserved until November 14, 1997, due to the possibility of congressional legislation
 On a related issue, Castello-Diaz requests that we withhold our decision and remand 10

this issue to the District Court in order for the parties to present further evidence that the

(continued...)

14

clarifying IIRIRA § 309(c). With respect to Castello’s due process claim, our holding in

Section II controls. Because Castello had no constitutionally protected interest in

suspension from deportation, a directive from the Chief Immigration Judge in light of

pending legislation cannot operate to deprive appellant of due process.

Castello also claims he was denied equal protection under the law because other

aliens had their cases heard and ruled on between February 1996 and October 1997, when

his case was undergoing delay. But the record contains no evidence that Castello’s

application for suspension of deportation was treated differently than were the

applications of other similarly-situated applicants. To the contrary, the Chief IJ’s

directive applied to all applications for suspension of deportation pending immediately

prior to the enactment of NACARA.

In light of the dramatic changes wrought on the immigration laws by the enactment

of IIRIRA and by the imminent enactment of NACARA, the Chief IJ necessarily had to

have flexibility in formulating a case management plan for those applications pending in

the Fall of 1997. The Equal Protection Clause requires only that the Chief IJ’s directive

rationally further a legitimate governmental interest, Cleburne v. Cleburne Living Center,

473 U.S. 432, 439–41 (1985), which we believe it does. Accordingly, we find no

violation of Castello’s rights under the Equal Protection Clause.10
 (...continued) 10

Chief IJ’s interference deprived Castello-Diaz of due process, and claims that our

jurisdiction to order the parties to provide further evidence is barred under 8 U.S.C. §

1252(a)(1). Castello-Diaz argues that, because the issue he raises here is “the same issue”

raised in a class action settlement, see Barahona-Gomez v. Ashcroft, 243 F. Supp. 2d

1029 (N.D. Cal. 2002), we should give Castello-Diaz the opportunity to reach the same

resolution reached there.

We disagree with Castello-Diaz for two reasons. First, the REAL ID Act, Pub. L.

109-13, Div. B, Title I, § 106(c), limits the district courts’ habeas jurisdiction over

removal orders. See Kamara v. Att’y Gen., 420 F.3d 202, 210 (3d Cir. 2005) (“[I]t is

readily apparent, given Congress’ clear intent to have all challenges to removal orders

heard in a single form (the court of appeals), that those habeas petitions that were pending

before this Court on the effective date of the REAL ID Act are properly converted to

petitions for review and retained by this Court.”) (citing Bonhometre v. Gonzales, 414

F.3d 442 (3d Cir. 2005)). Second, even assuming Castello-Diaz could be entitled to a

resolution obtained by settlement in the Court of Appeals for the Ninth Circuit (and not

through a judicial resolution of an outstanding question of law), the settlement outcome in

Barahona was tied to an internal directive concerning §§ 304(a)(3) and 309(c)(7) of the

IIRIRA—provisions not at issue in this case.

15

IV.

A.

In the alternative, Castello claims the IJ erred by not counting the seven years’

continuous presence he accrued subsequent to the initial issuance of the OSC in 1991. 

Assuming the stop-time provision applies to him, Castello argues that it does not preclude

the accumulation of a new period of seven years, beginning in 1991 and going forward. 

We disagree. Three cases inform our analysis.

In In re Mendoza-Sandino, 22 I. & N. Dec. 1236 (BIA Feb. 23, 2000), Sandra

Carolina Mendoza-Sandino entered the United States on February 28, 1986, and was

served with an Order to Show Cause and an arrest warrant the next day. By the time her
16

application for suspension of deportation was heard by an Immigration Judge in 1996,

she had accrued seven years of continuous physical presence. An en banc panel of the

BIA held that an alien may not accrue the required seven years’ continuous physical

presence after service of an Order to Show Cause:

The language of section 240A(d) makes it clear that Congress appreciated the

difference between a “break” in continuous physical presence and the “end” of

continuous physical presence. Congress has distinguished between certain actions

that “end” continuous physical presence, 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 an Order to Show Cause or a notice

to appear is not included as an interruptive event under section 240A(d)(2), which

merely breaks continuous physical presence. Rather, under section 240A(d)(1),

such service is deemed to end an alien’s presence completely. Therefore, a reading

of section 240A(d)(1) 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 either section 240A(d)(1) or (2).

Id. at 1240. The BIA also set forth the legislative history of the IIRIRA, concluding that

its holding in Mendoza was consistent with the goals of the Act:

The House and Conference Reports make it clear that the legislators intended to

remove the incentive for aliens to prolong their cases in the hope of remaining in

the United States long enough to be eligible for relief from deportation. Therefore,

reading section 240A(d)(1) to allow an alien to accrue a new period of continuous

physical presence after the issuance of a charging document would be contrary to

the intent of Congress as expressed in the legislative history of the IIRIRA.

Id. at 1243 (internal citations omitted).

Departing from this bright-line rule, the BIA in In re Ignacio Cisneros-Gonzalez,

23 I.&N. Dec. 668 (Sept. 1, 2004), created an exception for aliens served with charging

documents on separate occasions. Ignacio Cisneros-Gonzalez was served with an Order
17

to Show Cause charging him with deportability on December 28, 1990. He was deported

to Mexico on January 10, 1991, and he returned (illegally) to the United States the next

day. Ten years later he was again served with charging documents by the INS (now

DHS). Gonzalez requested cancellation of removal, contending he satisfied the 10 years

continuous physical presence requirement of section 240A. Applying Mendoza, the

Immigration Judge denied his application. The BIA reversed.

The BIA in Cisneros framed the issue narrowly: “whether an alien who departs

the United States after being served with a valid charging document can, upon his

subsequent return to the United States, accrue a period of continuous physical

presence—measured from the date of his return—so as to demonstrate eligibility for

cancellation of removal.” Id. at 669.

Relying heavily on both the statute’s structure and the legislative history of the

stop-time rules, the BIA in Cisneros held an alien may accrue a second period of

continuous physical presence under section 1229b(b)(1). Id. at 672. The BIA

emphasized that Cisneros-Gonzalez was involved in a second round of removal

proceedings, and held the “stop-time rule was not intended to extend to charging

documents issued in earlier proceedings.” Id. at 672. Because service of the clockstopping notice to appear applies only to those notices “served in the proceedings in

which the alien applies for cancellation of removal,” the BIA held that a second clock
18

had started and Gonzalez had demonstrated the requisite continuous physical presence

under § 1229b(b)(1). Id.

Although the en banc panel in Cisneros did not explicitly overrule Mendoza, it did

interpret Mendoza to hold that it “resolved the question whether service [of an OSC]

precluded an applicant for relief from accruing a qualifying period of continuous

physical presence in the proceedings that arose from service of that charging document.”

Id. at 670 (emphasis added). By imposing an “in the proceedings” requirement that

effectively limits the application of Mendoza, the Cisneros rule left open the possibility

that, in limited instances, section 1229b permits multiple periods of “continuous physical

presence.” We considered one such instance in Okeke v. Gonzales, 407 F.3d 585 (3d Cir.

2005). 

Anderson Jude Okeke, a Nigerian citizen, entered the United States in 1981 on a

student visa. In 1983 Okeke was arrested for possession of marijuana and sentenced to

five years’ probation. In 1984, after a trip to Nigeria, Okeke was lawfully readmitted to

the United States. He lived in the U.S. without interruption since then. He and his wife

had six children, all of whom are U.S. citizens.

In 1997 the INS served Okeke with a Notice to Appear, charging him with

removability for failure to comply with the terms of his student visa. He applied for

cancellation of removal. The IJ found he had failed to establish the required seven years

of continuous physical presence, however, because his controlled substance offense in
19

1983 “stopped the clock” on his accrual. See 8 U.S.C. § 1229b(d)(1). Because Okeke

arrived in the United States in 1981 and committed the offense in 1983, the IJ held he

accrued only two years of continuous physical presence under § 240A. The IJ denied his

application. On appeal, the BIA affirmed. This Court reversed.

The majority—in two separate opinions—held Okeke was entitled to relief. But

Judges Garth and Ambro reached this result via different routes. Judge Garth reasoned

that Okeke’s lawful re-entry into the United States in 1984, at which time he was still

covered by his student visa, “re-started” the clock for purposes of “continuous physical

presence.” Okeke, 407 F.3d at 590 (Garth, J.). Judge Ambro, concurring, focused

instead on the statute’s plain language and Congress’ intent, stating that Mendoza was

incorrectly decided. See id. at 597 (Ambro, J., concurring) (“Congress intended in §

1229b(d)(1) to allow the continuous physical presence clock to restart after the

commission of a specified offense”). Although no single ratio decidendi is clear, and

although each would carve out a rule that would allow for the accrual of the requisite

period of time subsequent to some clock-stopping event, neither Judges Garth’s nor

Judge Ambro’s opinion allows us to disregard Cisneros’s rule—that “service [of an

OSC] preclude[s] an applicant for relief from accruing a qualifying period of continuous

physical presence in the proceedings that arose from service of that charging document.” 

23 I .& N. Dec. at 670.
20

Adopting Judge Garth’s rationale would not alter the application of Cisneros to

this case. Interpreting the more stringent bright-line rule in Mendoza, Judge Garth

determined it did not address “whether lawful reentry after commission of an offense,

rendering the alien inadmissible, restarts the clock.” Okeke, 407 F.3d at 589 (Garth, J.). 

He then interpreted Cisneros as creating an exception to Mendoza, allowing “for the

accrual of a new period of continuous physical presence upon an alien’s reentry into the

United States,” and held where there is a “lawful reentry after a clock-stopping event, . . .

the clock starts anew.” Id. at 590. However, here, Castello did not leave and then reenter

the country. Under Judge Garth’s rationale, and applying the appropriate standard of

deference, under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984), to both Mendoza and Cisneros, we are unable expand Cisneros’ exception to the

present case.

Nor would adoption of Judge Ambro’s reasoning alter the application of Cisneros. 

After arguing that Cisneros did not apply to Okeke’s case, Judge Ambro stated that he

would have held Mendoza’s interpretation of § 1229b(d)(1)—that “the clock cannot be

reset so that an alien accrues continues physical presence after the commission of a

specified offense”—impermissible under Chevron. Id. at 593. Whatever the merits of

this rationale, the clock did not stop for Castello because of his commission of any

“specified offense” (that is, his time did not stop because of the commission of any

particular crime). Instead, the clock stopped because Castello was served with one, and
 The IJ has discretionary authority to reopen a case upon his own motion at any time 11

pursuant to 8 C.F.R. § 1003.23(b)(1). Castello arrived in the U.S. as a minor, and has

been living continuously in this country for almost twenty-one years—fifteen of which

have involved litigation arising from the initial Order to Show Cause. His family lives in

the United States, and he has worked as a nurse in a nursing home for several years. Even

though he cannot prevail in this case, Castello seems to be an appropriate candidate for

discretionary relief.

21

only one, OSC, premised on his staying in the U.S. longer than permitted. Okeke dealt

specifically with an individual convicted of a controlled substance offense, and Judge

Ambro focused on Mendoza’s effective § 1229b(d)(1) rule, that “if you commit a

specified offense you can never get cancellation of removal under § 1229(b)(b)(1).” Id.

at 594–95. But this reasoning does not extend further than Judge Ambro’s proposed

holding in Okeke. Even were we to agree that either the bright-line rule in Mendoza, or

the more limited rule in Cisneros, should not apply to instances in which an alien has

committed a “specified offense,” that limitation on Mendoza—and, by extension,

Cisneros—would not apply here.

B.

Applying Cisneros, because Castello did not accrue seven years of continuous

physical presence prior to issuance of a charging document by the INS, we find no error

in the IJ’s calculation.

Conclusion

For the foregoing reasons, we will deny the petition for review of the final order of

deportation entered by the BIA on November 4, 2003. We deny the motion to withhold 11
22

decision in No. 03-4475 and deny the motion to remand in No. 05-3166.