PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 17-2901

_______________

PABLO ANTONIO MEJIA-CASTANON,

Petitioner

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA

_______________

On Petition for Review of an Order of the Board of 

Immigration Appeals

(Agency Case No. A206-033-430)

Immigration Judge: Honorable Steven A. Morley

_______________

Argued: May 30, 2018

Before: AMBRO, SCIRICA, and SILER, JR., 

Circuit Judges.

 

 Honorable Eugene E. Siler, Jr., United States Court of 

Appeals for the Sixth Circuit, sitting by designation.
2

(Opinion Filed: July 25, 2019)

Theodore J. Murphy [ARGUED]

Murphy Law Firm

320 North High Street

West Chester, PA 19380

Counsel for Petitioner

Chad A. Readler

Anthony P. Nicastro

Dana M. Camilleri

Sabatino F. Leo [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_______________

OPINION OF THE COURT

_______________

SCIRICA, Circuit Judge

Aliens who are unlawfully present in the United States 

and ordered removed may apply for cancellation of that 

removal if they, among other things, have maintained a 

continuous physical presence in the United States for at least 

ten years and have been a person of good moral character for 

such period. Congress modified the calculation of the physical 

presence requirement when it amended the Immigration and 
3

Nationality Act in 1996: Under the “stop-time rule,” the 

physical presence period ends when the Department of 

Homeland Security serves the alien with a notice to appear.1

As a result, aliens cannot continue to accrue physical presence 

time during the pendency of (often lengthy) removal 

proceedings and appeals. At issue is whether the stop-time rule 

applies to the time period during which an alien must exhibit 

good moral character.

Petitioner Pablo Antonio Mejia-Castanon maintains

that it does, such that events occurring after the service of a 

notice to appear cannot be used to evaluate his good moral 

character. This time distinction is critical to Petitioner’s

application for cancellation of removal because he admitted to 

helping family members illegally enter the United States 

during the pendency of his application, a transgression that 

indisputably undermines his ability to demonstrate good moral 

character. Under Petitioner’s interpretation, the stop-time rule

operates to exclude these events from the evaluation of his 

moral character. But if the stop-time rule does not truncate the 

good moral character window, he will not satisfy the good 

moral character requirement and will be statutorily ineligible 

for cancellation of removal. 

The Board of Immigration Appeals rejected 

Petitioner’s reading of the statute, and two courts of appeals

have deferred to the Board’s interpretation under Chevron. For 

 

1 While this case was pending, the Supreme Court issued 

a decision clarifying what is required of such a notice to appear. 

See Pereira v. Sessions, 138 S. Ct. 2105 (2018). Pereira has 

important consequences for the stop-time rule, which we 

discuss below. See infra Section I.B.2.
4

the reasons that follow, we agree with our sister circuits and 

hold that the Board’s interpretation is entitled to Chevron

deference. Under that interpretation, the stop-time rule does 

not apply to the good moral character requirement. Instead, the 

relevant time period on which to evaluate an alien’s good moral 

character is the ten-year period prior to the final administrative 

decision on an alien’s application for cancellation of removal. 

We will deny the petition.

I.

Under the Immigration and Nationality Act (INA), 8 

U.S.C. § 1101 et seq., an alien who enters the United States 

without permission, and who is not admitted or paroled, is 

removable. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(A).

The Department of Homeland Security may remove such an 

alien by initiating removal proceedings before an Immigration 

Judge, see id. § 1229a, and providing written notice to the alien 

by serving him with a “notice to appear,” id. § 1229(a)(1). The 

notice to appear informs the alien, among other things, of the

“time and place” of the removal hearing, the “legal authority 

under which the proceedings are conducted,” and the “charges 

against the alien.” Id. § 1229(a)(1)(G)(i), (B), (D). An alien 

served with a notice to appear may challenge his removal on 

the merits or admit his removability while seeking certain

discretionary relief. 

A.

Prior to amendments in 1996, one type of discretionary 

relief an alien could seek was suspension of deportation. The 

INA provided that “the Attorney General may, in his 

discretion, suspend deportation” of an alien if he (1) had “been 
5

physically present in the United States for a continuous period 

of not less than seven years immediately preceding the date of 

such application;” (2) “prove[d] that during all of such period

he was and is a person of good moral character;” and (3) was 

“a person whose deportation would . . . result in extreme 

hardship to the alien or to his spouse, parent, or child, who is a 

citizen of the United States or an alien lawfully admitted for 

permanent residence.” 8 U.S.C. § 1254(a)(1) (1994); see also

I.N.S. v. Chadha, 462 U.S. 919, 923–24 (1983). “Even if these

prerequisites [we]re satisfied,” however, “it remain[ed] in the 

discretion of the Attorney General to suspend, or refuse to 

suspend, deportation.” I.N.S. v. Rios-Pineda, 471 U.S. 444, 446

(1985) (citations omitted).

Under this pre-1996 formulation, the Board of 

Immigration Appeals interpreted the physical presence and 

good moral character time periods to be identical. See In re 

Ortega-Cabrera, 23 I. & N. Dec. 793, 794 (B.I.A. 2005) 

(citations omitted). And because the Board construed “such 

application” in the phrase “immediately preceding the date of 

such application,” 8 U.S.C. § 1254(a)(1) (1994), to be “a 

continuing one,” the seven-year time period for both

“continu[ed] to accrue” through the Board’s final 

administrative decision on an alien’s application for 

cancellation of removal. Ortega-Cabrera, 23 I. & N. Dec. at 

794. In other words, an alien could accrue the required seven 

years of physical presence during the pendency of her removal 

proceedings and appeals, and her moral character would also 

be evaluated until the final adjudication of her application. 

This statutory structure was problematic, however,

because it created a “substantial incentive” for those aliens 

facing deportation “to prolong litigation” and to “stall[ ] 
6

physical departure in the hope of eventually satisfying” the 

seven-year requirement. Rios-Pineda, 471 U.S. at 450.

Congress believed suspension of deportation was being abused 

and exploited, particularly by aliens seeking to “accrue time 

toward the seven year threshold even after they ha[d] been 

placed in deportation proceedings.” H.R. Rep. 104-469, at 122 

(1996); see also In re Cisneros, 23 I. & N. Dec. 668, 670 

(B.I.A. 2004) (“[A]liens in deportation proceedings had 

knowingly filed meritless applications for relief or otherwise 

exploited administrative delays in the hearing and appeal 

process in order to ‘buy time,’ during which they could acquire 

a period of continuous presence that would qualify them for 

forms of relief that were unavailable to them when proceedings 

were initiated.”). Congress also believed the “‘extreme 

hardship’ standard”—the final statutory requirement for 

suspension of deportation––“ha[d] been weakened by recent 

administrative decisions.” H.R. Rep. No. 104-828, at 213 

(1996) (Conf. Rep.).

B.

To address these concerns, Congress passed the Illegal 

Immigration Reform and Immigrant Responsibility Act of 

1996 (IIRIRA). See Pub. L. No. 104–208, Div. C, Tit. III, 

Subtit. A, sec. 304(a)(3), § 240A, 110 Stat. 3009-594 to 3009-

596. Relevant here, IIRIRA amended the INA to its current 

form by replacing suspension of deportation with a new and 

more limited form of relief called “cancellation of removal.”

See 8 U.S.C. § 1229b; see also H.R. Rep. No. 104-828, at 213 

(1996) (Conf. Rep.). And IIRIRA created the stop-time rule, 

designed to prevent an alien from accruing physical presence 

time during the pendency of immigration proceedings. 
7

1.

IIRIRA introduced significant differences for aliens 

seeking relief from removal: Congress extended the length of 

time required for an alien to be physically present from seven 

to ten years, excluded from eligibility those aliens who were 

convicted of certain offenses under the INA, and strengthened 

the hardship requirement from “extreme hardship” to an 

“exceptional and extremely unusual hardship.” Compare 8 

U.S.C. § 1254(a)(1) (1994) (repealed), with 8 U.S.C. 

§ 1229b(b)(1)(A)–(D). See also H.R. Rep. No. 104-828, at 213 

(1996) (Conf. Rep.) (“The managers have deliberately changed 

the required showing of hardship from ‘extreme hardship’ to 

‘exceptional and extremely unusual hardship’ to emphasize 

that the alien must provide evidence of harm to his spouse, 

parent, or child substantially beyond that which ordinarily 

would be expected to result from the alien’s deportation.”).

Under current law as adopted in IIRIRA, to be eligible 

for cancellation of removal an alien must: (1) have “been 

physically present in the United States for a continuous period 

of not less than 10 years immediately preceding the date of 

such application;” (2) have “been a person of good moral 

character during such period;” (3) have “not been convicted” 

of certain offenses under the INA, including crimes involving 

moral turpitude, certain felonies, and document fraud; and (4) 

must “establish[ ] 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 U.S.C. 
8

§ 1229b(b)(1)(A)–(D) (emphasis added).2If an alien satisfies 

these four requirements, an Immigration Judge may grant 

cancellation of removal after balancing “the favorable and 

adverse factors” of the alien’s particular case. In re A-M-, 25 I. 

& N. Dec. 66, 76 (B.I.A. 2009).

2.

To eliminate the incentive to delay immigration 

proceedings to accrue physical presence time, IIRIRA created 

the stop-time rule in a separate subsection titled “Special rules 

relating to continuous residence or physical presence.” 8 

U.S.C. § 1229b(d). Relevant here, the stop-time rule provides, 

“[f]or the purposes of [cancellation of removal]” an alien’s 

period of continuous physical presence “shall be deemed to 

end . . . when the alien is served a notice to appear under section 

1229(a).” Id. § 1229b(d)(1). 

The stop-time rule is only triggered upon service of a 

notice to appear “that, at the very least, ‘specif[ies]’ the ‘time 

and place’ of the removal proceedings.” Pereira v. Sessions, 

138 S. Ct. 2105, 2114 (2018) (quoting 8 U.S.C. § 

1229(a)(1)(G)(i)) (alteration in original). Prior to Pereira, a 

number of other courts of appeals had adopted a Board 

interpretation finding § 1229b(d)(1) “does not impose

substantive requirements” on notices to appear. In re 

Camarillo, 25 I. & N. Dec. 644, 647 (B.I.A. 2011).3 Pereira 

 

2

IIRIRA also prohibits the Attorney General from 

cancelling the removal of more than 4,000 aliens in a single 

fiscal year. 8 U.S.C. § 1229b(e)(1). 

3 For courts of appeals’ decisions deferring to the Board’s 

interpretation under Chevron, see: Moscoso-Castellanos v. 
9

dispatched with this understanding, characterizing § 

1229(a)(1) as a definitional provision establishing hearing time 

and place among the minimum contents needed for a notice to 

appear to trigger the stop-time rule.

In sum, if an alien is served with a notice to appear prior 

to accruing sufficient physical presence time, he cannot satisfy 

the physical presence requirement––and is therefore ineligible 

for cancellation of removal––no matter how long his 

immigration proceedings continue. Service of a notice to 

appear that fails to set a hearing time and place does not trigger 

the stop-time rule.4

 

Lynch, 803 F.3d 1079, 1083 (9th Cir. 2015); O'Garro v. Att’y

Gen., 605 F. App’x 951, 953 (11th Cir. 2015) (per curiam); 

Guaman-Yuqui v. Lynch, 786 F.3d 235, 239–40 (2d Cir. 2015) 

(per curiam); Gonzalez-Garcia v. Holder, 770 F.3d 431, 434–

35 (6th Cir. 2014); Yi Di Wang v. Holder, 759 F.3d 670, 674–

75 (7th Cir. 2014); and Urbina v. Holder, 745 F.3d 736, 740 

(4th Cir. 2014). We diverged from this consensus, maintaining

before Pereira that a notice to appear “that fails to satisfy § 

1229(a)(1)’s various requirements” does not trigger the stoptime rule. Orozco-Velasquez v. Att’y Gen., 817 F.3d 78, 83 (3d 

Cir. 2016).

4 Pereira leaves open whether the stop-time rule is 

triggered when an incomplete notice to appear is followed by 

a subsequent notice setting a hearing time and place. As we 

note below, this case does not demand an answer to that 

question. 
10

C.

To be eligible for cancellation of removal, an alien also 

must have “been a person of good moral character” during a 

continuous ten-year period. 8 U.S.C. § 1229b(b)(1)(B). Under 

the INA, “[n]o person shall be regarded as, or found to be, a 

person of good moral character who,” during the relevant time 

period satisfies any of a lengthy list of prohibited conduct. 8 

U.S.C. § 1101(f); see also id. § 1101(f)(1)–(9). The list

includes, for example, being “a habitual drunkard,” id. 

§ 1101(f)(1), deriving income “principally from illegal 

gambling activities,” id. § 1101(f)(4), and giving false 

testimony to gain immigration benefits, id. § 1101(f)(6). 

Relevant here, an alien is not a person of good moral character 

if he engaged in alien smuggling activities. Id. § 1101(f)(3).5

II.

A.

Petitioner Pablo Antonio Mejia-Castanon is a citizen of 

Guatemala who entered the United States without permission 

in 2002. Years later, the Department of Homeland Security 

 

5 Section 1101(f)(3) provides that an alien is not a person 

of good moral character if he is “a member of one or more of 

the classes of persons, whether inadmissible or not, described 

in paragraph[ ] . . . (6)(E) . . . of section 1182(a)” of the INA. 

8 U.S.C. § 1101(f)(3). Paragraph (6)(E), titled “Smugglers,” 

provides in part that “[a]ny alien who at any time knowingly 

has encouraged, induced, assisted, abetted, or aided any other 

alien to enter or to try to enter the United States in violation of 

law is inadmissible.” Id. § 1182(a)(6)(E)(i).
11

sought to remove him and served him with a document labeled

“Notice to Appear” on October 17, 2013. This document 

specified the allegations against Petitioner and identified the 

legal authority for the removal proceedings against him, but it 

provided for a hearing “on a date to be set at a time to be set.”

App. 837. On November 13, 2013, Petitioner was served a 

notice of hearing, specifying the time and place of his removal 

proceedings. At a preliminary hearing before an Immigration 

Judge, Petitioner admitted to unlawfully entering the United 

States, conceded he was removable, and sought discretionary 

relief in the form of cancellation of removal, or alternatively, 

voluntary departure. See 8 U.S.C. §§ 1229b(b), 1229c. 

On January 9, 2017, the Immigration Judge held a 

hearing on the merits of Petitioner’s cancellation of removal 

application. During this hearing, Petitioner admitted to paying 

a total of $8,000 to an individual to help his brother and three

daughters unlawfully enter the United States in 2015 and 2016 

respectively––years after he was initially served with a notice 

to appear. 6 Because he admitted to helping his family enter the 

United States without permission, the Immigration Judge 

determined Petitioner had engaged in alien smuggling and was

not a person of good moral character as defined in the INA. See 

8 U.S.C. §§ 1101(f)(3), 1182(a)(6)(E). As a result, the 

 

6 At oral argument, we asked Petitioner’s counsel about a 

discrepancy in the record concerning when Petitioner’s brother 

arrived in the United States. See Tr. of Oral Arg. at 3:20–5:8. 

Petitioner’s counsel thereafter submitted a letter to the Court, 

pointing to record evidence that Petitioner’s brother arrived in 

2015––after Petitioner was served with a notice to appear. The 

Government has not disputed this. 
12

Immigration Judge concluded Petitioner was ineligible for

cancellation of removal. See id. § 1229b(b)(1)(B).

Petitioner appealed this decision to the Board of 

Immigration Appeals. He did not dispute engaging in 

prohibited conduct. He argued, instead, that events occurring 

after the service of a notice to appear could not be used to 

evaluate his good moral character because the stop-time rule, 

8 U.S.C. § 1229b(d)(1), applied to the good moral character 

requirement, id. § 1229b(b)(1)(B).

After Pereira, it is evident that the incomplete October 

13, 2013 notice did not trigger the stop-time rule. For purposes 

of Mejia’s petition, we assume the subsequent November 13, 

2013 notice of hearing triggered the stop-time rule because it 

provided the minimum information—hearing time and place—

needed to facilitate Petitioner’s appearance at his removal 

proceeding. Because we conclude the stop-time rule does not 

apply to the good moral character period, we have no occasion 

to decide whether this two-step notice process satisfies § 

1229(a).

Petitioner’s alien smuggling transgressions occurred in 

2015 and 2016. Both incidents, therefore, followed the 

November 13, 2013 notice of hearing. If this notice triggers the 

stop-time rule, as we assume it does for purposes of evaluating 

Petitioner’s contention, then under his theory the alien 

smuggling incidents would fall outside the good moral 

character ten-year window. Under this understanding, 

Petitioner remained a person of good moral character, eligible 

for cancellation of removal.

B.
13

Relying on its prior published decision, In re OrtegaCabrera, 23 I. & N. Dec. 793, 796–97 (B.I.A. 2005), the Board 

rejected Petitioner’s interpretation of the stop-time rule and 

denied his appeal. Ortega-Cabrera explained that, prior to

IIRIRA’s 1996 amendments to the INA, the Board had 

understood the physical presence and good moral character 

time periods to be identical and to “continu[e] to accrue 

through the time [the Board] decided an alien’s appeal.” Id. at 

794. But the stop-time rule, explained Ortega-Cabrera,

“altered the calculation” of the physical presence time period

“by halting the accrual of such presence with the service of the 

[notice to appear].” Id. at 795. The Board concluded that the 

interaction between the stop-time rule and the good moral 

character requirement was ambiguous. See id.

In light of the stop-time rule, Ortega-Cabrera said there

were “three possible interpretations” of the good moral 

character requirement’s time period. Id. First, the Board could 

continue to treat the physical presence and good moral 

character time period as identical, applying the stop-time rule 

to make both requirements “bounded at the end” by the service 

of a notice to appear. Id. Second, the periods could be identical 

but end instead on “the date that the application for cancellation 

of removal is first filed with the court.” Id. And third, the two 

periods could diverge. Under this final reading, the good moral 

character period would be the ten years prior to the Board’s 

final administrative decision—in other words, the good moral 

character period would be read “consistent with [the Board’s] 

long-established practice” of allowing the good moral 

character time period to accrue until a final administrative 

decision. Id. 
14

After acknowledging that each interpretation presented 

problems, Ortega-Cabrera adopted the final option, 

concluding it most aligned with congressional intent. The first 

interpretation––applying the stop-time rule to the good moral 

character requirement––would undermine the INA’s definition 

of good moral character, see 8 U.S.C. § 1101(f), because this 

reading would allow “an alien who engages in a disqualifying 

act,” such as alien smuggling or giving false testimony at his 

immigration hearing, to remain eligible for cancellation of 

removal if the act occurred after the service of a notice to 

appear. See Ortega-Cabrera, 23 I. & N. Dec. at 797. The 

second option––although appearing consistent with the 

statute’s text––“is thrown into considerable doubt” when read 

with the stop-time rule because that rule had made the phrase 

“immediately preceding the date of the application” 

inapplicable in determining the physical presence requirement.

Id. at 795. 

The final option, in contrast, did not undermine the 

INA’s definition of good moral character, nor did it alter the 

Board’s “well-established practice of treating the application 

as a continuing one for the purposes of assessing an alien’s 

good moral character.” Id. at 797. Finding “no indication that 

Congress, in creating the ‘stop-time’ rule, intended to alter 

th[is] well-established practice,” id., Ortega-Cabrera adopted 

this final interpretation. It held that “an application for 

cancellation of removal remains a continuing one for purposes 

of evaluating an alien’s moral character, and . . . the 10-year 

period during which good moral character must be established 

ends with the entry of a final administrative decision.” Id. at 

798.
15

Petitioner sought review of the Board’s decision before 

this Court. 

III.

The Board had jurisdiction under 8 C.F.R. 

§§ 1003.1(b)(3) and 1240.15.

7 We have jurisdiction under 8 

 

7

In supplemental briefing Petitioner argues the Supreme 

Court’s decision in Pereira strips the Immigration Court’s (and 

the Board’s) jurisdiction to adjudicate the underlying removal 

proceedings. From Pereira’s observation that “a notice that 

does not specify when and where to appear for a removal 

proceedings is not a ‘notice to appear’ that triggers the stoptime rule,” Petitioner infers that service of an incomplete notice 

to appear divests the Immigration Judge of jurisdiction. 138 S. 

Ct. at 2115. Our recent decision in Nkomo v. Attorney General,

___ F.3d____, 2019 WL 3048577 (3d Cir. July 12, 2019), 

rejected Petitioner’s understanding of Pereira and thus

forecloses his jurisdictional challenge. In Nkomo we joined 

seven courts of appeals to conclude Pereira’s explanation of 

“notice to appear” does not implicate an immigration judge’s 

authority to adjudicate. Nkomo, 2019 WL 3048577, at *2;

accord Ortiz-Santiago v. Barr, 924 F.3d 956, 957–58, 962–64

(7th Cir. 2019); Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019);

Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019); 

Soriano-Mendosa v. Barr, 786 F. App’x 796, 801–02 (10th 

Cir. 2019); Santos-Santos v. Barr, 917 F.3d 486, 489–91 (6th 

Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1160–61

(9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305, 

314–15 (6th Cir. 2018); Leonard v. Whitaker, 746 F. App’x 

269, 269–70 (4th Cir. 2018) (per curiam); United States v. 

Perez-Arellano, 756 F. App’x. 291, 294 (4th Cir. 2018) (per 
16

U.S.C. § 1252(a). Although the INA strips us of jurisdiction 

over “any judgment regarding the granting of relief under 

section . . . 1229b [(cancellation of removal)],” 8 U.S.C. 

§ 1252(a)(2)(B)(i), “we have interpreted this provision to apply 

only with respect to discretionary aspects of the denial of 

cancellation of removal.” Singh v. Att’y Gen., 807 F.3d 547, 

549 n.3 (3d Cir. 2015) (citing Mendez-Moranchel v. Ashcroft, 

338 F.3d 176, 178 (3d Cir. 2003)). Whether the stop-time rule 

applies to the good moral character requirement is not a 

“discretionary aspect” of a cancellation of removal application. 

Rather, it is a question of law which is exempt from 

§ 1252(a)(2)(B)(i)’s jurisdiction limitation. See 8 U.S.C. § 

1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in any 

other provision of this chapter . . . which limits or eliminates 

judicial review, shall be construed as precluding review of 

constitutional claims or questions of law raised upon a petition 

for review filed with an appropriate court of appeals in 

accordance with this section.”). 

IV.

As we set forth below, the good moral character 

provision timeframe is ambiguous because its text is 

 

curiam); see also Matter of Bermudez-Cota, 27 I. & N. Dec. 

441, 441–45 (B.I.A. 2018). The jurisdiction-vesting regulation 

departs from the statutory stop-time rule, we reasoned, because 

it “does not cross-reference” § 1229(a)’s notice to appear. 

Nkomo, 2019 WL 3048577, at *3. Pereira spoke to a narrow 

issue and did not hint at the sweeping consequences Petitioner

envisions. We therefore reject his jurisdictional challenge.
17

susceptible to two reasonable interpretations.8 The legal 

question here therefore “implicat[es] an agency’s construction 

of the statute which it administers,” so we “appl[y] the 

principles of deference described in Chevron, U.S.A., Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837, 842

(1984).” I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)

(quotation marks omitted).

9

“Under Chevron, we take a twostep approach, first deciding whether the statutory provision 

interpreted by the [Board] is ambiguous and then, if it is, giving 

deference to the [Board]’s reasonable interpretation of the 

INA.” Mondragon-Gonzalez v. Att’y Gen., 884 F.3d 155, 158

(3d Cir. 2018) (citation omitted). IIRIRA’s 1996 amendments 

to the INA––in particular, the stop-time rule––rendered the 

applicable timing of the good moral character provision 

 

8 We cannot agree with the Dissent’s view that the 

timeframe is unambiguous because it reads the good moral 

character provision in isolation, ignoring the statutory context. 

See infra section IV.A.

9

“It is clear that principles of Chevron deference are 

applicable to this statutory scheme” because the “INA provides 

that ‘[t]he Attorney General shall be charged with the 

administration and enforcement’ of the statute and that the 

‘determination and ruling by the Attorney General with respect 

to all questions of law shall be controlling.’” I.N.S. v. AguirreAguirre, 526 U.S. 415, 424 (1999) (quoting 8 U.S.C. 

§ 1103(a)(1)). Additionally, the Supreme Court has

“recognized that judicial deference to the Executive Branch is 

especially appropriate in the immigration context where 

officials ‘exercise especially sensitive political functions that 

implicate questions of foreign relations.’” Id. at 425 (quoting 

I.N.S. v. Abudu, 485 U.S. 94, 110 (1988)).
18

ambiguous. And we defer to the Board’s reasonable 

interpretation of the statute.

A.

As we have noted, the good moral character time period, 

8 U.S.C. § 1229b(b)(1)(B), is ambiguous because its text is 

susceptible to two reasonable interpretations. 

Read in isolation, the question presented here initially

appears straightforward. The statute provides that an alien is 

eligible for cancellation of removal if, inter alia, he “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” and “has been a person of good moral 

character during such period.” 8 U.S.C. § 1229b(b) (emphasis 

added). How does one calculate the time period for measuring

good moral character? Petitioner argues this period is the same 

as the physical presence requirement, i.e., the ten-year period 

“immediately preceding the date of such application,” because 

the phrase “during such period” refers directly to the 

antecedent language. Indeed, prior to the 1996 amendments, 

the Board read an earlier, similar version of the statute as 

treating the two periods as identical.

10 It interpreted “such 

 

10 The pre-1996 language provided that an alien was 

eligible for suspension of deportation if, inter alia, the alien 

had been “physically present in the United States for a 

continuous period of not less than seven years immediately 

preceding the date of such application,” and “proves that 

during all of such period he was and is a person of good moral 

character.” 8 U.S.C. § 1254(a)(1) (1994) (repealed).
19

application” to be “a continuing one,” allowing the time 

periods to accrue until the Board’s final administrative 

decision on an application for cancellation of removal. OrtegaCabrera, 23 I. & N. Dec. at 794; see supra note 10.

But we cannot read the statute in isolation.

11 Instead, we

must “bear[ ] in mind the fundamental canon of statutory 

 

We do not believe Congress intended to alter the good 

moral character time period when it changed the phrasing of 

the statute from “during all of such period he was and is a 

person of good moral character,” id. (emphasis added) to “has 

been a person of good moral character during such period,” id. 

§ 1229b(b)(1)(B) (emphasis added). “Has been” is the present 

perfect tense, denoting “an act, state, or condition that is now 

completed or continues up to the present.” Chicago Manual of 

Style § 5.132, at 268 (17th ed. 2017). It is used to refer either 

to time in the indefinite past, or past action that continues until 

the present. Id.

11 As our dissenting colleague correctly observes, § 

1229b(b)(1)(A) and (B) are clear when read in isolation. See 

Dissenting Op. at 1–2. If these provisions alone spelled out the 

requirements for cancellation of removal, we would resolve 

this case without deferring to the Board’s interpretation. 

Section 1229b(b)(1)(A) and (B), in isolation, provide that both 

the continuous physical presence and good moral character 

periods end with the final administrative decision. But this 

reading is at odds with the later added stop-time rule. See 8 

U.S.C. § 1229b(d)(1) (“For purposes of this section, 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) . . . .”). What 
20

construction that the words of a statute must be read in their 

context and with a view to their place in the overall statutory 

scheme.” King v. Burwell, 135 S. Ct. 2480, 2492 (2015)

(quotation marks omitted); see also F.D.A. v. Brown & 

Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) (“In 

determining whether Congress has specifically addressed the 

question at issue, a reviewing court should not confine itself to 

examining a particular statutory provision in isolation. The 

meaning––or ambiguity—of certain words or phrases may 

only become evident when placed in context.”). When read in 

context with the stop-time rule, § 1229b(b)(1)(B)’s language is 

susceptible to two different interpretations. See RodriguezAvalos v. Holder, 788 F.3d 444, 453 (5th Cir. 2015) (“[W]e 

agree with the [the Board] and the Seventh Circuit that the 

‘interplay of the statutory language at issue here is ambiguous 

and subject to multiple possible interpretations.”); Duron-Ortiz 

v. Holder, 698 F.3d 523, 527 (7th Cir. 2012) (“The ambiguity 

arises when we read the statute in conjunction with the stoptime provision of § 1229b(d)(1).”); cf. Moscoso-Castellanos v. 

Lynch, 803 F.3d 1079, 1083 (9th Cir. 2015) (“Because the 

statute is susceptible to several interpretations, we hold, at 

Chevron step one, that the statute is ambiguous.”). 

1.

Under the interpretation advanced by Petitioner, the 

stop-time rule applies to both the physical presence and the

good moral character time periods––closing both windows

when a notice to appear is served. 

 

is unambiguous in isolation, therefore, becomes ambiguous 

when read alongside other relevant provisions.
21

Recall that the stop-time rule provides that “any period” 

of “continuous physical presence . . . shall be deemed to end 

when the alien is served a notice to appear.” 8 U.S.C. 

§ 1229b(d)(1). The good moral character requirement refers 

directly to the “period” of physical presence. See 8 U.S.C. § 

1229b(b) (requiring that the alien “has been a person of good 

moral character during such period”). By tethering its 

timeframe to the continuous physical presence period, the good 

moral character requirement incorporates the stop-time rule’s 

limitation. Read so, the good moral character and physical 

presence time period would be identical, each terminating with 

the service of a notice to appear that meets the requirements of 

§ 1229(a)(1).

2.

But this is not the only reasonable interpretation.

Alternatively, IIRIRA’s 1996 amendments to the INA could be

read as having no effect on the good moral character time 

period. Indeed, the stop-time rule’s language does not mention 

good moral character. IIRIRA created the stop-time rule in a 

separate subsection, titled “Special rules relating to continuous 

residence or physical presence.” 8 U.S.C. § 1229b(d). And the 

rule only provides that an alien’s “continuous residence or 

continuous physical presence . . . shall be deemed to end when 

the alien is served a notice to appear.” Id. § 1229b(d)(1).

Nothing in the stop-time rule’s text indicates it should apply 

beyond the continuous physical presence requirement to 

circumscribe the good moral character time period. The 

Dissent does not consider this construction, as it focuses 

exclusively on the language of § 1229b(b)(1)(A) and (B). But 
22

the plain language of § 1229b(d)(1) casts doubt on whether the 

Dissent’s interpretation is the only reasonable one.12

Under this second interpretation, the good moral 

character requirement would be the “10 years immediately 

preceding the date of such application.” 8 U.S.C. 

§ 1229b(b)(1)(A). In keeping with the prior understanding of 

the phrase “such application,” this period would run through 

the Board’s final administrative decision on the alien’s 

cancellation of removal application.13

 

12 We believe the Dissent’s position reinforces the 

ambiguity. The Dissent acknowledges the perplexity of its 

plain reading: “A decision that the stop-time rule for both 

physical presence and good moral character is 10 years before 

the application is a windfall for an applicant like MejiaCastanon, for the acts in this case . . . .” Dissenting Op. at 1

(emphasis added). Not so. Aliens profit from the scheme only 

if the good moral character period ends upon service of a notice 

to appear, the position advanced by Petitioner. But nothing in 

the text of § 1229b(b)(1)(A) or (B) supports such a reading

because neither provision’s timeframe, in isolation, is tied to 

service of a notice to appear. Thus we must interpret the 

interplay between § 1229b(b)(1)(A)–(B) and § 1229b(d)(1), 

which necessarily invites ambiguity.

13 In In re Ortega-Cabrera, 23 I. & N. Dec. 793, 796–97 

(B.I.A. 2005), the Board also suggested a third potential 

interpretation: “[The good moral character time period] may be 

the 10-year period ending on the date that the application for 

cancellation of removal is first filed with the court.” Id. at 795.

We disagree. 

As explained in Ortega-Cabrera, prior to the IIRIRA’s 

1996 amendments to the INA, the Board had interpreted “such 
23

Because § 1229b(b)(1)(B)’s text––when read in context 

with the stop-time rule–– is susceptible to two reasonable 

interpretations, it is ambiguous at step one of Chevron. 

B.

Under Chevron’s second step, we “may not substitute 

[our] own construction of a statutory provision for a reasonable 

 

application” to be “a continuing one,” allowing the time 

periods to accrue until the Board’s final administrative 

decision on an application for cancellation of removal. 23 I. & 

N. Dec. at 794. We presume Congress is aware of an 

administrative interpretation of a statute and that it adopts that 

interpretation when it reenacts the statute in materially similar 

language. See Lamar, Archer & Cofrin, LLP v. Appling, 138 S. 

Ct. 1752, 1762 (2018) (citing Bragdon v. Abbott, 524 U.S. 624, 

645 (1998)) (“When administrative and judicial interpretations

have settled the meaning of an existing statutory provision, 

repetition of the same language in a new statute indicates, as a 

general matter, the intent to incorporate its administrative and 

judicial interpretations as well.”); Lorillard v. Pons, 434 U.S. 

575, 580 (1978) (“Congress is presumed to be aware of an 

administrative or judicial interpretation of a statute and to 

adopt that interpretation when it re-enacts a statute without 

change.”). 

Had Congress enacted § 1229b(b)’s “immediately 

preceding the date of such application” language on a clean 

slate, it would seem obvious that the best reading of the statute

would be its literal one. But because Congress used the same 

language in § 1229b(b) as it did in § 1254(d), it was 

presumptively aware of the Board’s longstanding (albeit

nonliteral) interpretation of the phrase “such application.” 
24

interpretation made by the” Board. Chevron, 467 U.S. at 844.

When reviewing the Board’s interpretation, “we do not ask 

whether it is the best possible interpretation of Congress’s 

ambiguous language. Instead, we extend considerable 

deference to the agency and inquire only whether it made ‘a 

reasonable policy choice’ in reaching its interpretation.” Am. 

Farm Bureau Fed’n v. E.P.A., 792 F.3d 281, 295 (3d Cir. 2015) 

(quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet 

Servs., 545 U.S. 967, 986 (2005)). Because the Board’s 

interpretation is both a reasonable reading of the text and a 

reasonable policy choice, we join our sister circuits in 

concluding that its decision in Ortega-Cabrera is entitled to 

Chevron deference. See Rodriguez-Avalos v. Holder, 788 F.3d 

444, 455 (5th Cir. 2015); Duron-Ortiz, 698 F.3d at 528. 

First, the Board’s interpretation––declining to apply the 

stop-time rule to the good moral character time period and 

concluding that the period accrues through a final 

administrative decision––is a reasonable understanding of the

statute’s text. At a minimum, it embodies “a permissible 

construction of the statute.” Aguirre-Aguirre, 526 U.S. at 424 

(citation and quotation marks omitted). As explained above, it 

is reasonable to interpret the stop-time rule to have no effect on

the good moral character time period, as the stop-time rule’s 

text never mentions good moral character. See 8 U.S.C. 

§ 1229b(d). 

Second, the Board’s interpretation is “a reasonable 

policy choice,” Brand X, 545 U.S. at 986, because it comports 

with congressional intent and avoids results inconsistent with 

the broader purpose of the INA. 
25

The Board’s interpretation is consistent with

congressional intent. Congress created the stop-time rule to 

eliminate the incentive to delay immigration proceedings in 

order to accrue physical presence time. See Rios-Pineda, 471 

U.S. at 450 (explaining the “substantial incentive” for aliens 

facing deportation “to prolong litigation” in order to “stall[ ] 

physical departure in the hope of satisfying” the seven-year

requirement); see also H.R. Rep. 104-469, at 122 (1996)

(explaining that aliens were exploiting suspension of 

deportation by seeking to “accrue time toward the seven year 

threshold even after they ha[d] been placed in deportation 

proceedings”). There was not, however, a similar incentive 

related to accruing good moral character time. See OrtegaCabrera, 23 I. & N. Dec. at 797 (explaining there was “no 

indication that Congress, in creating the ‘stop-time’ rule, 

intended to alter” the Board’s “well-established practice” of 

treating the good moral character time period as accruing until 

its final administrative decision). And Petitioner identifies no 

evidence Congress sought to alter the good moral character 

time period. 

Finally, the Board’s interpretation avoids results 

inconsistent with the broader purpose of the INA. Under 

Petitioner’s interpretation, an alien could engage in a 

disqualifying act––like alien smuggling or testifying falsely at 

an immigration hearing—and yet remain eligible for 

cancellation of removal, so long as the act occurred after the 

service of a Pereira-compliant notice to appear. See OrtegaCabrera, 23 I. & N. Dec. at 797. Good moral character, 

however, involves “one of the most essential considerations in 

deciding who is allowed to remain in the United States––an 

individual’s character.” Duron-Ortiz, 698 F.3d at 528. “It is 

only logical that the agency consider an applicant’s most recent 
26

negative behavior when making such a decision, as the more 

recent an individual’s behavior is, the more accurately it 

reflects his or her character.” Id. This choice is wholly 

reasonable. 

V.

The Board’s interpretation of the good moral character 

time period is entitled to Chevron deference. Under that 

reasonable interpretation, the stop-time rule does not apply to 

the good moral character requirement. Rather, events occurring 

in the ten-year period prior to the final administrative decision

on the alien’s application for cancellation of removal are 

subject to the good moral character requirement. We will

therefore deny the petition. 
SILER, Circuit Judge, dissenting.

I respectfully dissent from the majority opinion, 

because I do not find ambiguity in the statute involved. 

Because there is no ambiguity in the statute, we should not give 

deference to the Board in its interpretation of the INA. See

Mondragon-Gonzalez v. Att’y Gen., 884 F.3d 155, 158 (3d Cir. 

2018). The Board concludes that the stop-time rule applies to 

the physical presence of not less than 10 years immediately 

preceding the date of the application for cancellation of 

removal but does not apply to the petitioner’s requirement of 

being a person of good moral character during the same

continuous 10-year period. That conclusion follows logic but 

it does not follow the statute. A decision that the stop-time rule 

for both physical presence and good moral character is 10 years 

before the application is a windfall for an applicant like MejiaCastanon, for the acts in this case which would preclude him 

from being eligible for a cancellation of removal would allow 

him to “beat the system.”

However, the plain language of the statute provides 

otherwise, and Congress has had an opportunity to amend the 

statute, as recited in the majority opinion. Thus, the current 

statute reads:

The Attorney General may cancel removal of . . 

. an alien who is inadmissible or deportable . . . 

if the alien--

(A) has been physically present in the 

United States for a continuous period of 

not less than 10 years immediately 
Case No. 17-2901

Pablo Mejia-Castanon v. Attorney General of the United States 

of America

2

preceding the date of such application; 

[and]

(B) has been a person of good moral 

character during such period . . . .

8 U.S.C. § 1229b(b)(1)(A)-(B).

I realize, as the majority indicates, that two other 

circuits have ruled otherwise. See Rodriguez-Avalos v. Holder, 

788 F.3d 444, 453 (5th Cir. 2015); Duron-Ortiz v. Holder, 698 

F.3d 523, 527 (7th Cir. 2012). The Board ruled likewise. See 

In re Ortega-Cabrera, 23 I. & N. Dec. 793, 796-97 (B.I.A. 

2005). However, in reading the plain language of the statute, I 

cannot agree. Therefore, I would grant the petition for review.