          United States Court of Appeals
                     For the First Circuit

No. 13-1520

                         LLANERY SOTO,

                          Petitioner,

                               v.

                       ERIC HOLDER, JR.,
                UNITED STATES ATTORNEY GENERAL,

                          Respondent.



               PETITION FOR REVIEW OF AN ORDER OF
                THE BOARD OF IMMIGRATION APPEALS



                             Before

                      Lynch, Chief Judge,
               Stahl and Howard, Circuit Judges.



     John H. Ruginski, Jr., on brief for petitioner.
     Andrew Olivera, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, and Richard M. Evans,
Assistant Director, on brief for respondent.



                        December 3, 2013
            STAHL, Circuit Judge.         Petitioner Llanery Soto seeks

review an order of the Board of Immigration Appeals ("BIA")

affirming     the    Immigration   Court's   decision   to   dismiss    her

application for cancellation of removal.          We conclude that the

BIA's correct application of the "stop-time" rule precludes the

relief that Soto seeks.        Therefore, we deny Soto's petition for

review.

                              I.   Background

            Soto is a native and citizen of the Dominican Republic

who entered the United States on September 16, 1997, without

admission or parole.        On November 14, 2005, the United States

Immigration and Naturalization Service ("INS") served Soto with a

Notice to Appear ("NTA") charging her as removable pursuant to the

Immigration         and   Nationality      Act   ("INA"),     subsections

212(a)(6)(A)(i) and 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(A)(i),

(C)(i).     The NTA was not filed with the Immigration Court until

February 14, 2008.        On February 27, 2008, the Immigration Court

mailed a Notice of Hearing to Soto's address of record, notifying

her of removal proceedings on March 27, 2008.        Soto did not appear

at the hearing, and the Immigration Judge ("IJ") ordered Soto

removed in absentia.

            On November 10, 2009, Soto filed a motion to reopen in

order to submit an application for cancellation of removal.            In an

accompanying affidavit, Soto acknowledged receiving the NTA in


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November 2005, although she later denied it in her pleading dated

December 17, 2009.       In the same pleading, Soto conceded that she

was removable under § 212(a)(6)(A)(i).              The Immigration Court

granted the motion to reopen based on its finding that Soto had not

received the Notice of Hearing.             It set the deadline for Soto's

application and supporting documents as November 24, 2010.                  On

November 17, 2010, Soto filed a motion for continuance seeking

additional time to file the application.

             The Immigration Court issued a decision on December 17,

2010, denying the motion for continuance and holding that Soto had

abandoned the application for cancellation.             The court found that

Soto   had   not   offered    any   satisfactory    reason   for   requesting

additional time beyond the November 24 deadline to file her

application for cancellation.         Additionally, the court found that

Soto was statutorily ineligible for cancellation of removal in any

case, because she could not show ten years of continuous presence

in the United States, as required by           section 240A(b) of the INA,

8 U.S.C. § 1229b(b).         Regarding the latter conclusion, the court

found that Soto had entered the United States on September 16,

1997, and that service of the NTA on November 14, 2005, "cut[] off

the lawful residence for physical presence . . . for purposes of

cancellation of removal."

             The   BIA   affirmed   the   Immigration    Court's   ruling   on

February 23, 2012.       This court vacated that decision and remanded


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to the BIA in response to an unopposed motion from the government

seeking clarification of the date on which Soto received service of

the NTA.     On remand, the BIA confirmed that Soto was served with

the NTA on November 14, 2005, and again upheld the Immigration

Court's decision.    The present appeal followed.

                                 II.    Analysis

             Here, Soto argues that the Immigration Court erred as a

matter of law in finding that she was statutorily ineligible for

cancellation of removal and abused its discretion in denying her

motion for continuance.          She also raises a cursory due process

claim.   None of Soto's arguments have merit.

             "We review the BIA's legal conclusions de novo, with

appropriate    deference    to    the    agency's   interpretation    of   the

underlying     statute     in    accordance     with   administrative      law

principles."    Walker v. Holder, 589 F.3d 12, 18 (1st Cir. 2009).

"This includes a de novo review of due process claims."              Toribio-

Chavez v. Holder, 611 F.3d 57, 62 (1st Cir. 2010).          "We review the

agency's factual findings, including credibility determinations,

under the substantial evidence standard, and may overturn those

findings only if 'any reasonable adjudicator would be compelled to

conclude to the contrary.'"            Lin v. Gonzales, 503 F.3d 4, 7 (1st

Cir. 2007) (quoting 8 U.S.C. § 1252(b)(4)(B)).              Our review is

limited to "the administrative record on which the order of removal

is based."    8 U.S.C. § 1252(b)(4)(A).         In cases such as this one,


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"where the BIA has rendered a decision with its own analysis of the

question at issue, our review focuses on the BIA's decision, not

the IJ's."    Vásquez   v. Holder, 635 F.3d 563, 565 (1st Cir. 2011).

             A.     Soto's Application for Cancellation of Removal

             The Attorney General has the discretion to cancel the

removal of nonpermanent resident aliens who meet certain specified

criteria, including physical presence in the United States "for a

continuous period of not less than 10 years immediately preceding

the date of such application" for cancellation of removal.

8 U.S.C. § 1229b(b)(1)(A).           The statute provides that "[f]or

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) of this title . . . ."          Id. § 1229b(d)(1).       This

provision is known as the "stop-time" rule.        Cheung v. Holder, 678

F.3d 66, 69 (1st Cir. 2012).

             The BIA found as a factual matter that Soto entered the

United States on September 16, 1997, and received service of the

NTA on November 14, 2005, prior to the ten-year mark.                Although

Soto stated otherwise in her pleadings, in a sworn affidavit she

testified that she received service of the NTA at that time.               In

light   of   this   evidence,   we   conclude   that   the   BIA's    factual

determination was not erroneous.        Therefore, under the plain terms

of the statute, Soto's period of continuous presence in the United


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States for the purposes of her application is less than ten years,

and she is not eligible for cancellation of removal under the stop-

time rule.

             Soto raises two arguments against this conclusion. First,

she claims that her ten years of continuous presence accrued during

the two-year period between the service of the NTA and its filing

with the Immigration Court.      Second (perhaps alternatively), she

argues that "the ten (10) year period provided, by the plain

statutory language, encompasses that period from the date of entry

through the date of application, not the date of the service of the

NTA." (emphasis in original).        Neither argument has any legal

basis.   The statute unambiguously cuts off the term of continuous

presence for the purposes of § 1229b at the date of the service of

the NTA, regardless of when the removal proceedings actually begin.

§ 1229b(d)(1).     As the BIA correctly pointed out, "although the

Notice to Appear was not filed with the Immigration Court until 2

years after it was served, the service of the Notice to Appear is

a separate issue from that of when the proceedings are commenced."

Cf. Cheung, 678 F.3d at 69–71 (applying the stop-time rule where

the petitioner was served before the ten-year mark with an NTA

based on a charge that was later withdrawn and replaced by a

separate, unrelated charge after the ten-year mark).     Accordingly,

we affirm the BIA's decision that Soto is statutorily ineligible

for cancellation of removal.


                                  -6-
           The   BIA    did    not    address   separately    whether     the

Immigration Court abused its discretion by denying Soto's motion

for an extension of time to file her application. Nevertheless, we

conclude that the denial was not an abuse of discretion.            Having

correctly determined that Soto was statutorily ineligible for

cancellation of removal, the Immigration Court had no reason to

allow Soto more time to file a futile application, particularly

given Soto's failure to show cause.         Thus, Soto's appeal fails on

that ground as well.

           B.        Due Process Claim

           In her appellate brief, Soto mentions due process without

clearly articulating an argument on that issue. To the extent that

we can discern a due process claim, Soto appears to be arguing that

the Immigration Court denied her the opportunity to be heard and

present   evidence     by   denying   her   motion   for   continuance    and

summarily finding her application for cancellation to be abandoned.

This is not a colorable due process claim.

           "[T]his court has recognized that there is a due process

violation if the proceeding is so fundamentally unfair that the

alien was prevented from reasonably presenting [her] case."

Bernal-Vallejo v. INS, 195 F.3d 56, 63 (1st Cir. 1999).             But we

have also held that a denial of a continuance cannot be a due

process violation where there was no abuse of discretion.                See

Alsamhouri v. Gonzales, 484 F.3d 117, 124 (1st Cir. 2007)("[T]he IJ


                                      -7-
did not abuse his discretion in denying the continuance; hence,

there is no possible claim that the denial rendered the proceeding

fundamentally unfair.") (internal quotation marks omitted).    For

the reasons explained above, the Immigration Court did not abuse

its discretion by denying the motion for continuance.   Therefore,

Soto's due process claim necessarily fails.

                        III.   Conclusion

          For the foregoing reasons, we deny Soto's petition for

review.




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