                                         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.
               (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




                              2
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.




                                3
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




                                4
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[ ]




                                5
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.




                              6
                               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.




                               7
§ 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 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.




                                8
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 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.




                                9
                                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).




                                10
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.




                               11
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.




                              12
        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 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.




                               13
        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.




                              14
       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 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. 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




                               15
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.




                              16
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 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., 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. Aguirre-
Aguirre, 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)).




                               17
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).




                               18
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. 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 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




                                19
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 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 with the stop-
time 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.




                               20
        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




                               21
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 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 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




                                22
       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.”




                               23
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.




                               24
        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 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 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 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 recent




                              25
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.




                               26
       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 Mejia-
Castanon, 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




             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.




                              2
