CASTRO-LOPEZ

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693
Matter of Miguel Angel CASTRO-LOPEZ, Respondent
Decided December 2, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2)
(2015) for aliens seeking special rule cancellation of removal under section 203 of the
Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II,
111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644
(1997), should be measured from the alien’s most recently incurred ground of removal,
at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(1).
FOR RESPONDENT: Luis Carlos Diaz, Esquire, Silver Spring, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kellie Santos-DeJesus,
Assistant Chief Counsel
BEFORE: Board Panel: PAULEY and WENDTLAND, Board Members; O’Herron,
Temporary Board Member.
PAULEY, Board Member:
In a decision dated February 5, 2015, an Immigration Judge granted the
respondent’s application for special rule cancellation of removal pursuant to
section 203 of the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”), Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196
(1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997). The
Department of Homeland Security (“DHS”) has appealed from that
decision. The appeal will be sustained and the record will be remanded for
further proceedings.
The respondent is a native and citizen of El Salvador who most recently
entered the United States without inspection in 1996. He has remained in
this country unlawfully since that time. The respondent was convicted of
possession of cocaine in Maryland on July 13, 2012.
The DHS initiated removal proceedings against the respondent,
charging that he is inadmissible under sections 212(a)(6)(A)(i) and
(2)(A)(i)(II) of the Act, 8 U.S.C. §§ 1182(a)(6)(A)(i) and (2)(A)(i)(II)
(2012), as an alien who is present in the United States without being
admitted and who has been convicted of a controlled substance violation.
The Immigration Judge found the respondent removable on both grounds.

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The respondent applied for special rule cancellation of removal under
the NACARA. Because of his controlled substance conviction, the
Immigration Judge applied the heightened standards for establishing
continuous physical presence set forth in 8 C.F.R. § 1240.66(c) (2015),
which provides, in pertinent part, as follows:
Aliens inadmissible or deportable on criminal or certain other grounds. To
establish eligibility for special rule cancellation of removal under section
309(f)(1)(B) of IIRIRA, as amended by section 203 of NACARA, the alien must
be described in § 1240.61 and establish that:
(1) The alien is inadmissible under section 212(a)(2) of the Act (relating to
criminal activity) . . . ;
(2) The alien has been physically present in the United States for a continuous
period of not less than 10 years immediately following the commission of an act, or
the assumption of a status constituting a ground for removal;
. . . .
(Second emphasis added.)
It is undisputed that these heightened standards apply. At issue,
however, is whether the respondent established the required 10 years of
continuous physical presence immediately following the assumption of a
status constituting a ground for removal. The Immigration Judge found that
when the respondent entered the United States illegally in 1996 and
remained in violation of law, he assumed a status that would constitute a
ground for removal, from which his continuous physical presence should be
counted. The DHS contends that the Immigration Judge erred in finding
that the respondent met the 10-year physical presence requirement because
continuous physical presence should be measured from the most recently
incurred ground of removal, which, in this case, is the respondent’s 2012
conviction. We review this question of law de novo. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (2015).
We conclude that, in calculating continuous physical presence for
special rule cancellation of removal under circumstances such as those
presented in this case, the alien’s most recent ground of removal controls.1
Contrary to the Immigration Judge, who found that the language of the
regulation is straightforward, we find it to be ambiguous. It does not
address the situation where there is more than one act or event that renders
an alien removable, as is the case with the respondent.
1 We need not address whether 8 C.F.R. § 1240.66(c)(2) is limited to the criminal
grounds set forth in 8 C.F.R. § 1240.66(c)(1) because the DHS has not presented that
issue on appeal. In any case, the respondent’s most recent act involved a criminal ground
listed in 8 C.F.R. § 1240.66(c)(1), namely, section 212(a)(2) of the Act.

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Since 8 C.F.R. § 1240.66(c) essentially adopts the framework for
suspension of deportation under former section 244(a)(2) of the Act,
8 U.S.C. § 1254(a)(2) (1994), we find that our prior treatment of
applications for that relief provides helpful guidance in interpreting the
regulation. See Matter of Romalez, 23 I&N Dec. 423, 427 (BIA 2002)
(“Applicants for special rule cancellation of removal under the NACARA
are subject to either a 7-year or 10-year continuous physical presence
requirement consistent with the suspension of deportation provisions of
prior law.”); see also Cuadra v. Gonzales, 417 F.3d 947, 949 (8th Cir.
2005) (noting that the NACARA allows certain aliens “to seek relief under
conditions approximating . . . suspension of deportation”).
In Matter of Wong, 13 I&N Dec. 427 (BIA 1969), we addressed a split
in the circuit courts regarding the question of how to measure physical
presence for suspension of deportation when more than one deportation
ground exists. We first noted that in Fong v. INS, 308 F.2d 191 (9th Cir.
1962), the United States Court of Appeals for the Ninth Circuit had held
that the 10-year period of physical presence required for suspension of
deportation starts with the commission of the first deportable act.2
However, we observed that the Ninth Circuit’s decision had been rejected
by other circuits, which determined instead that the period of physical
presence ran from the commission of the last deportable act.
Specifically, in Patsis v. INS, 337 F.2d 733, 740 (8th Cir. 1964), the
Eighth Circuit stated that the required 10 years of physical presence was a
“testing period,” which Congress “felt to be of sufficient length to provide
enough assurance that the alien would be an acceptable addition to society
despite any misstep of a decade or more ago.” Noting that the statute was
“somewhat ambiguous,” the Second Circuit agreed that an alien who
committed a deportable act within the 10-year “probationary period” should
not be allowed to apply for suspension of deportation. Gagliano v. INS,
353 F.2d 922, 929 (2d Cir. 1965). Two other circuits, the Sixth and the
Third, had issued decisions prior to Fong that seemed to be in accord.3 See
Matter of Wong, 13 I&N Dec. at 429. Concluding that it was in the interest
2 Former section 244(a)(2) of the Act, 8 U.S.C. § 1254(a)(2) (1964), at issue in Wong,
was a later version of the provision that had been addressed by the Ninth Circuit, which
acknowledged that the “manner in which [the statute was] worded left it open to two
possible constructions.” Fong v. INS, 308 F.2d at 194. Both sections used the same
language regarding physical presence, requiring a continuous period of not less than
10 years “immediately following the commission of an act, or the assumption of a status,
constituting a ground for deportation.”
3 In addressing the circuit split, we did not discuss any cases decided by the Fourth
Circuit, in whose jurisdiction this case arises. Nor are we now aware of any pertinent
precedent issued by that court.

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of uniformity to follow the majority view, we held that when there is more
than one ground of deportation, the period of continuous physical presence
should be measured from the date of the last deportable offense. Id. at 430.
We find no reason to alter our interpretation of the continuous physical
presence requirement for special rule cancellation of removal under
8 C.F.R. § 1240.66(c)(2), whose language is substantively identical to that
of the suspension of deportation statute we addressed in Wong. Therefore,
for purposes of special rule cancellation of removal under the NACARA,
we hold that continuous physical presence should be measured from the
alien’s most recently incurred ground of removal, at least if that ground is
set forth in 8 C.F.R. § 1240.66(c)(1). See generally Auer v. Robbins, 519
U.S. 452, 461 (1997) (stating that an agency’s interpretation of its own
regulation is “controlling unless ‘plainly erroneous or inconsistent with the
regulation’” (quoting Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 359 (1989))).
The respondent’s July 13, 2012, conviction for possession of cocaine is
his most recent ground of removal. Consequently, his continuous physical
presence should be measured from that date. Because he is unable to show
that he has the required 10 years of physical presence, we conclude that
the Immigration Judge erred in finding that the respondent established
eligibility for special rule cancellation of removal. Accordingly, the DHS’s
appeal will be sustained in regard to the Immigration Judge’s grant of that
relief.
The Immigration Judge did not adjudicate the respondent’s other
applications for relief from removal. The record will therefore be
remanded, and the respondent may apply for any relief for which he may be
eligible. The parties should be permitted to update the record with
additional evidence.
ORDER: The appeal of the Department of Homeland Security is
sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.