PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________
No. 17

- 2901

_______________
PABLO ANTONIO MEJ I A

- 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 Depa rtment of Justice Office of Immigration Litigation P.O . Box 878 Ben Franklin Station Washington, DC 200 44 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 cha ra cter for such per iod

. Congress modified the calculation of the physical
presence requirement when it amended the Immigration and3 Nationality Act in 1996: U nder 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 p hysical 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 crit ical to Petitioner’s application for cancellation of removal because h e admitted to helping family members illegally enter the United S tates 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 i f the stop

- time rule does not truncate the good moral character window

, he will not sa tisfy the good moral character requirement and will be statutorily ineligible for cancel l ation of removal

.

T he Board of Immigration Appeals rejected Petitioner’s reading of the statute , and two courts of appeals have deferred to the Board’s interpretati on 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. Sessio ns , 138 S. Ct. 2105 (2018). P e reira 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, t he 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 a dministrative decision on an alien’s application for cancell ation of removal. W e will deny the p etition.

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. § § 1 182 (a)( 6)(A)(i)

, 1227(a)(1)(A)

. T he Department of Homeland Security may remove such an alien by initiating removal proceedings before an Immigration Judge, s ee id. § 1229a, and provid ing 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. T he INA provided that “the Attorney General may, in his discretion, suspend deportation” of an alien if he (1) had “been5 physically present in the United States for a cont inuous period of not less than seven years immediately preceding the date o f 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 extr eme 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 th e physical presence and good moral character time period s 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

a dministrative 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 app eals

, 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 prolo ng litigat ion” 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 admini strative decisions.” H.R. Rep. No. 104

- 828, at 213 (1996) (Conf. Rep.).

B.

To address these concerns, Congress passed the I llegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)

. See Pub. L. No. 104

– 208, Div. C, Tit. III, Subtit. A, s ec. 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 o f 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, de s igned to prevent an alien from accruing physical presence time during the pendency of immigration proceedings.7 1

. IIRIRA introduced significant differen ces 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 streng thened 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). S

ee 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 c hild 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 cance l lation 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 cr imes 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 al ien lawfully admitted for permanent residence.” 8 U.S.C.8 § 1229b(b)(1)(A)

– (D) (emphasis added). 2 If 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 r ules

r elating to c ontinuous r esidence or p hysical p resence. ” 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 phys ical 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 ‘t ime 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 requirement s ” 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

- Caste llanos v.9 dispatched with this understanding, characterizing § 1229(a)(1) a s a definitional provision establishing hearing time and place among the minimum contents needed for a notice to appear to trigger the stop

- time rul e

.

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 cance l lation of removal

–– no matter how long his immigration proc eedings continue

. S ervice of a notice to appear that fails to set a hearing time a nd 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 stop

time 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.

T o 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
pers on 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)

. Th e list includes , for example, being “a habitual drunkard,” i d. § 1101(f)(1), deriving income “principally from illegal gambling activities,” i d. § 1101(f)(4), and giving false testimony to gain immigrat ion 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 Homelan d 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]n y 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 “N otice to A ppear ” on October 17, 2013

. This document specified t he 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 J udge, Petitioner admitted to unlawfully entering the United States, conceded he was removable , and sought discretionary relief in the form of cance l lation of removal , or alt ernatively, 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 cancel l ation of removal application. During this hearing, Petitioner admitte d to paying a total of $8,000 to an individual to help his brother and t hree daughters unlawfully enter the United States in 2015 and 2016 respectively

–– years after he was init i ally s erved with a notice to appear. 6 Because he admitted to helping his family ent er the United States without permission

, t he 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 co unsel 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 Im migration 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 inform ation

— 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 proces s 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 ev aluating 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 Ortega

Cabrera , 23 I. & N. Dec. 793, 796

– 97 (B.I.A. 2005), the Board rejected Petitioner’s interpretation of the stop

- time rule and denied hi s appeal. Ortega

- Cabrera explained that

, prior to IIR IRA’s 1996 amendments to the INA, the Board had understood the physical presence and good moral character time period s to be identical and to “continu [e] to accrue through the time [the Board] decided an alien’s appeal.” Id. at 794. But t he 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 th e [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, O rtega

- Cabrera said there were “three possible interpret ations” of the good moral character requirement’s time period

. Id. First, t he 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 “t

he date that the application for cancellation of removal is first filed with the court. ” Id. And t hird

, the t wo periods could diverge. Under this final reading, the good moral character period w ould be the ten years prior to the Board’s final administrative decision

— in other words, the good moral character period w ould be read “con sistent wi th [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, O rtega

- Cabrera adopted the final option, concluding it most aligned with congressional intent. T he 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 eligib le for cancellation of removal if the act occurred after the service of a notice to
appea r

. 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 t he 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 C ongress, in creating the ‘stop

- time’ rule, intended to alter th [is] well

- established practice ,” id.

, Ortega

- Cabrera adopted th is final interpretation . It held that “a n application for cancellation of removal remains a continuing one for purposes of evaluat ing 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 Petition er sought review of the Board’s decision before this Court

.

I II.

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 i s not a ‘notice to appear’ that triggers the stop

time 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. Attor ney 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 implicat e 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

– 9 1 (6th Cir. 2019) ; Karingithi v. Whitaker , 913 F.3d 1158, 1160

– 61 (9th Cir. 2019) ; Hernandez

- Perez v. Whitaker , 911 F.3d 3 05, 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 ) (per16 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. At t’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 s et 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 T he 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 two

step 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.
, 8 84 F.3d 155, 158 (3d C ir. 2018) (citation omitted). IIRIRA’s 1996 amendments to the INA

–– in particular, the stop

- time rule

–– rendered the applicable timing of the good moral characte r 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 “ I t is clear that principles of Chevron deference are appl icable to this statutory scheme” because the “ INA provides that ‘[t]he Attorney Gene ral 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. Aguirre

Aguirre , 526 U.S. 415, 424 (1999) (qu oting 8 U.S.C. § 1103(a)(1) )

. A dditionally, 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 impli cate questions of foreign relations.’” Id. at 425 (quoting I.N.S. v. Abudu , 485 U.S. 94, 110 (1988)).18 ambiguous. And w e defer to the Board’s reasonable interpretation of the statute.

A.

As we have noted, t he good moral character time period

, 8 U.S.C. § 12 29b(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 appli cation” and “has been a person of good moral character during such period .” 8 U.S.C. § 12 29b(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 U nited States for a continuous period of not less than seven years immediately precedi ng 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 canc ellation of removal

. Ortega

Cabrera , 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 t he 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 goo d 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 (17t h 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 pr esence 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) . . . .”). What20 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 Tobacc o Corp. , 529 U.S. 120, 132 (2000) (“In determining whether C ongress 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 c ontext.” )

. When read in context with the stop

- time rule

, § 1229b(b)(1)(B)’s language is susceptible to two different interpretations

. See Rodriguez

Avalos 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 wi th the stop

time provision of § 1229b(d)(1).”); c f. 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 period s

–– 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 s top

- 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, t he 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 subse ction

, titled “Special rules r elating to continuous residence or physical p resence. ” 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 s top

- time rule’s text indicates it should apply beyond the continuous physical presence requirement to circumscribe the go od 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). But22 the plain language of § 1229 b (d)(1) casts doubt on whether the Dissent’s interpretation is the only reasonable one. 12

Under this second interpretation, t he good moral charact er 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 administr ative 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 win dfall for an applicant like Mejia

Castanon , 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 advance d 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 § 1229 b (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 : “ [T he 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 interp reted “such23 Because § 12 29b(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. D ec. 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. A p pling

, 138 S. Ct. 1752, 1762 (2018) (citing Bragdon v. A b bott , 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 becau se Congress used the same l anguage in § 1229b(b) as it did in § 1254(d), it was presumptively aware of the Board’s longstanding ( a lbeit 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 be st 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 28 1, 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 (5 th 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

cons truction of the statute.” Aguirre

- Aguirre , 526 U.S. at 424 (citatio n 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 pu rpose of the INA

.25 The Board’s interpretation is consistent with congressional intent. C ongress 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 lit igation” 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 seve n 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 Ortega

Cabrera , 23 I. & N. Dec. at 797 (explaining there was “no indication that Congress, in creating the ‘stop

- time’ rule, intended to alter” the Boa rd’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 so ught 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 smugglin g or testifying falsely at an immigration h e aring

— 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 Ortega

Cabrera , 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 recent26 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, t he stop

- time rule does not apply to the good moral character requirement. Rather, events occurring in the ten

- year period prior to the final a dministrative decision

on the alien’s application for cancellation of removal are subject to the good moral character requirement

. W e will therefore deny the petition.SILER, Circuit Judge , d issentin g
.

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 sh ould 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 conclu des that the stop

- time rule applies to the physical presence of not less than 10 years immediately preceding the date of the application for cancel l ation of removal but does not apply to the petitioner ’s requirement of being a person of good moral character d uring the same continuous 10

- year period

. That conclusion follow s 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 app licant like Mejia

Cast a non, for the acts in this case which would preclude him from being eligible for a cancel l ation of removal would allow him to “beat the system.”

However, the plain language of the statute provides otherwise, and Congress has had an o pportunity to amend the statute, as recited in the majority opinion. Thus, the current statute reads:

The A ttorney G eneral may cancel removal of

. .

. an alien who is inadmissible or deportable . . . if the alien

--
(A) has been physically present in th e United States for a continuous period of not less than 10 years immediatelyCase No. 1 7

- 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 mora l 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)

. T he Board ruled likewise. S ee In r e Ortega

- C

abrera , 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.