GARCIA

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179
In re Viviana GARCIA, Respondent
File A97 149 523 - Dallas
Decided May 31, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An application for special rule cancellation of removal is a continuing one, so an
applicant can continue to accrue physical presence until the issuance of a final
administrative decision. 	Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005),
reaffirmed; Cuadra v. Gonzales, 417 F.3d 947 (8th Cir. 2005), followed in jurisdiction only.
FOR RESPONDENT: Antonio A. Lopez, Esquire, Dallas, Texas
BEFORE: Board Panel: HESS and PAULEY, Board Members; ROMIG, Temporary Board
Member.
PAULEY, Board Member:
In a decision dated November 5, 2004, an Immigration Judge determined
that the respondent lacked the requisite period of continuous physical presence
to establish statutory eligibility for special rule cancellation of removal. We
affirmed the Immigration Judge’s decision without opinion on January 4,
2006. The case is now before us pursuant to an order of the United States
Court of Appeals for the Fifth Circuit granting a Government motion to
remand the record for us to reconsider our decision. Upon reconsideration,
our prior decision will be vacated, the respondent’s appeal will be sustained,
and the record will be remanded to the Immigration Judge for further
proceedings consistent with this decision.
I. FACTUAL AND PROCEDURAL BACKGROUND
The respondent is a native and citizen of Mexico who entered the
United States on October 20, 1997. 	She argues that she is eligible for
special rule cancellation of removal. Amendments to section 309(c)(5) of the
Illegal 	Immigration 	Reform 	and 	Immigrant 	Responsibility 	Act 	of
1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627
(“IIRIRA”), provide special rules regarding applications for suspension
of 	deportation 	and 	cancellation 	of 	removal 	filed 	by 	certain 	aliens.
See section 203 of the Nicaraguan Adjustment and Central American Relief

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Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2193, 2196 (1997), amended by
Pub. L. No. 105-139, 111 Stat. 2644 (1997) (“NACARA”) (amending section
309(c)(5) of the IIRIRA to define classes of eligible aliens and adding
provisions relating to special rule cancellation of removal). 	These aliens
include nationals of Guatemala, El Salvador, and the former Soviet Bloc who
are specifically described in section 309(c)(5)(C)(i) of the IIRIRA, which was
added by section 203(a)(1) of the NACARA, 111 Stat. at 2196. 	The
respondent claims to be within the described group of aliens eligible to apply
for cancellation of removal under the special rules because her husband, a
native and citizen of El Salvador, was granted relief under the NACARA. She
accordingly seeks to qualify for special rule cancellation of removal as the
spouse of a person whose application has been approved. 	See IIRIRA
§ 309(c)(5)(C)(i)(III), added by NACARA § 203(a)(1), 111 Stat. at 2197.
Inclusion in the class of aliens described in section 309(c)(5)(C)(i) of the
IIRIRA does not exempt applicants for special rule cancellation of removal
from establishing all of the eligibility requirements for relief. See 8 C.F.R.
§ 1240.66(a) (2007) (providing that an applicant must show eligibility under
section 309(f)(1) of the IIRIRA). 	To establish eligibility for special rule
cancellation of removal, the respondent must demonstrate, among other
things, that she has accrued 7 years of continuous physical presence in the
United States. See IIRIRA § 309(f)(1)(A)(ii), added by NACARA § 203(b),
111 Stat. at 2198 (requiring physical presence “for a continuous period of not
less than 7 years immediately preceding the date of such application”). The
regulation implementing the statute requires the respondent to show that she
“has been physically present in the United States for a continuous period of
7 years immediately preceding the date the application was filed.” 8 C.F.R.
§ 1240.66(b)(2).
The Immigration Judge pretermitted the respondent’s application for special
rule cancellation of removal, concluding that she lacked the requisite 7 years
of continuous physical presence prior to the date she filed her application.
The respondent testified that she first entered the United States on October 20,
1997. The Immigration Judge found that the respondent filed her application
on March 5, 2004, and thus did not have 7 years of continuous physical
presence on the date the application was “filed.” The respondent contends
that her period of continuous physical presence should have continued to
accrue until the date that the Immigration Judge’s decision was issued on
November 5, 2004, when she had more than 7 years of continuous physical
presence.

Cite as 24 I&N Dec. 179 (BIA 2007) 	Interim Decision #3565
1 As we noted in Matter of Ortega-Cabrera, supra, at 795 n.1, we also treat the good moral
character period as continuing for purposes of determining eligibility for voluntary departure
granted at the conclusion of proceedings .
181
II. ISSUE
The issue before us is whether the respondent has established that she is
eligible for special rule cancellation of removal by demonstrating that she
has “been physically present in the United States for a continuous period of
7 years immediately preceding the date the application was filed.” 8 C.F.R.
§ 1240.66(b)(2) (emphasis added).
III. ANALYSIS
For purposes of suspension of deportation, the relief that preceded special
rule 	cancellation 	of 	removal, 	we 	have 	long 	treated 	applications 	as
“continuing,” meaning that an applicant could accrue continuous physical
presence until a final administrative decision was issued. See, e.g., Matter of
Castro, 19 I&N Dec. 692 (BIA 1988) (finding that the respondent was eligible
for suspension of deportation because he had acquired the requisite 7 years of
physical presence during the pendency of his appeal). 	We reaffirmed this
approach in Matter of Ortega-Cabrera, 23 I&N Dec. 793, 795 (BIA 2005),
stating that prior to the enactment of the “stop-time” rule in section
240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)
(2000), we consistently treated the continuous physical presence period, and
consequently the good moral character period, as continuing to accrue through
the time that a final administrative decision was issued.
In Cuadra v. Gonzales, 417 F.3d 947, 952 n.2 (8th Cir. 2005), the Eighth
Circuit determined that the plain language of the statute provides a bright line
for determining when an application is filed and rejected our longstanding
administrative practice of treating such types of applications as “continuing.”1
However, we have continued this practice for several reasons that were not
addressed by the court in Cuadra.
First, we note that congressional intent appears to favor treatment of
applications for special rule cancellation as “continuing” applications. For
example, Congress specifically exempted 	applications for special rule
cancellation from the “stop-time” rule of section 240A(d)(1) of the Act, which
automatically cuts off the accrual of continuous physical presence for
cancellation of removal applicants. 	See IIRIRA § 309(f)(1), added by
NACARA § 203(b), 111 Stat. at 2198. 	Because Congress enacted the
NACARA to ameliorate the “harsher effects” of prior legislation, it would be

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anomalous to construe “continuous physical presence” for special rule
cancellation 	of 	removal 	applicants 	in 	the 	most 	restrictive 	manner.
Masnauskas v. Gonzales, 432 F.3d 1067, 1070 (9th Cir. 2005). As we stated
in Matter of Ortega-Cabrera, supra, Congress was aware of our longstanding
practice of considering similar applications as “continuing” in nature when it
enacted this legislation. 	Id. at 797 (noting that “aside from the leftover
language ‘such period’ in section 240A(b)(1)(B), there is no indication that
Congress, in creating the ‘stop-time’ rule, intended to alter the well-
established practice of treating the application as a continuing one”). We find
support for treating applications for special rule cancellation as “continuing”
in the fact that Congress did not make the “stop-time” rule applicable to such
applications.
In determining the meaning of a statute, the context in which it appears
must be considered. 	Thus, the question whether an application is properly
viewed as “continuing” for the purpose of determining the period of
continuous physical presence is inextricably linked to determining the
period within which good moral character must be assessed. 	See 8 C.F.R.
1240.66(b)(3) (directing that the alien must show that he or she has been a
person of good moral character “during the required period of continuous
physical presence”). 	This is the very question we addressed in Matter of
Ortega-Cabrera, supra, at 798, where we examined the coterminous concepts
of good moral character and continuous physical presence and concluded
that “in line with long-standing practice, an application for cancellation of
removal remains a continuing one for purposes of evaluating an alien’s moral
character.” In reaching that conclusion, we noted that a contrary ruling could
result in a situation where an alien would be required to be found ineligible
for relief based on a disqualifying bad act that occurred many years in the past,
whereas one who committed a disqualifying act after the application was filed
(that is, during the hearing or shortly before the hearing, depending on when
the application is deemed “filed,” as discussed below) would not be so
ineligible.
Unless the respondent’s application for special rule cancellation of removal
is deemed a continuing one, the anomalous consequences we identified in
Matter of Ortega-Cabrera, supra, would apply to this even more ameliorative
provision. 	Such an outcome makes so little sense that we regard it as a
“decidedly unlikely reflection of congressional intent.” Id. at 797. The Eighth
Circuit did not mention our holding in Matter of Ortega-Cabrera and reached
a result that we opined would be inconsistent with congressional intent, i.e.,
the court found the alien eligible for cancellation of removal notwithstanding
that he gave “false testimony” for the purpose of obtaining an immigration
benefit after he filed his application. See Matter of Ortega-Cabrera, supra,

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at 796. 	In sum, we do not agree with Cuadra v. Gonzales, supra, that the
language of the statute is unambiguous, and we interpret it in a manner
contrary to that of the Eighth Circuit.
We further find that the approach described by the court in Cuadra v.
Gonzales, supra, regarding the plain meaning of the statute, which is similar
to that taken by the Immigration Judge in this case, fails to consider the
regulatory ambiguity for applications for special rule cancellation. 	We
initially note that the regulations do not specifically define what constitutes
the “filing” date for applications for special rule cancellation. 	8 C.F.R.
§ 1240.63(a) (2007). 	With respect to the filing date of the respondent’s
application, the Immigration Judge apparently considered the application to
have been “filed” on March 5, 2004, the date it was referred to the
Immigration Court along with the notice to appear. The application might also
be considered as having been “filed” on April 1, 2003, when it was submitted
to the Department of Homeland Security (“DHS”) in accordance with
8 C.F.R. § 1240.62(a)(4) (2007). 	However, the DHS referral letter dated
March 3, 2004, advised the respondent that she would have the opportunity
to 	apply 	for 	special 	rule 	cancellation 	of 	removal 	“again” 	before 	an
Immigration Judge. 	The record reflects that the respondent did not have a
hearing on the merits of her application for special rule cancellation of
removal until November 5, 2004. On that date, the respondent was sworn in
as a witness and testified that she entered the United States on October 20,
1997. 	The respondent did not re-execute the application before the
Immigration Judge. 	We note, however, that if she had re-signed the
application on the day she offered testimony, the application arguably would
not have been “filed” until November 5, 2004, the date of the hearing before
the Immigration Judge.
IV. CONCLUSION
Given the ameliorative nature of the special rule cancellation statute and the
ambiguity concerning the date on which an application for relief is “filed,” we
respectfully decline to adopt the reasoning of the Eighth Circuit in Cuadra v.
Gonzales, supra, in cases arising outside of the court’s jurisdiction. Because
we find that an application for special rule cancellation of removal is a
continuing application, we conclude that the respondent accrued 7 years of
continuous physical presence prior to the issuance of a final administrative
decision for purposes of establishing eligibility for relief. We will therefore
vacate our prior decision and sustain the respondent’s appeal. The record will
be remanded to the Immigration Judge for further proceedings to adjudicate
the respondent’s application.

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ORDER: Upon reconsideration, our prior decision in this matter is vacated
and the respondent’s appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with this decision.