             Case: 14-13080    Date Filed: 05/22/2015   Page: 1 of 5


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-13080
                           Non-Argument Calendar
                         ________________________

                           Agency No. A099-140-529


KEVON O'GARRO,

                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                         ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                 (May 22, 2015)

Before WILSON, JULIE CARNES, and FAY Circuit Judges.

PER CURIAM:

      Kevon O’Garro, a native and citizen of Trinidad and Tobago, seeks review

of the Board of Immigration Appeals’ (BIA) final order affirming the Immigration
              Case: 14-13080     Date Filed: 05/22/2015   Page: 2 of 5


Judge’s (IJ) decision to pretermit his application for cancellation of removal,

pursuant to the Immigration and Nationality Act (INA) § 240A(b)(1), 8 U.S.C.

§ 1229b(b)(1). O’Garro argues that INA § 239(a)(1), 8 U.S.C. § 1229(a)(l) is

unambiguous and must be honored. Thus, his continuous physical presence in the

U.S., for purposes of eligibility for cancellation of removal, was not stopped when

he was served with a notice to appear (NTA) that lacked the time and place at

which his initial removal proceeding would be held. Instead, his time was stopped

by the notice of hearing, which was sent after he was physically present in the U.S.

for ten years and four months, so he remains eligible for cancellation of removal,

and his merits hearing in Immigration Court should be resumed.

      We review only the decision of the BIA, except to the extent that the BIA

expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). Where the BIA agrees with the IJ’s reasoning, we review the IJ’s

decision to that extent. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350

(11th Cir. 2009). Here, the BIA did not expressly adopt the IJ’s decision but

agreed with the IJ’s findings. Thus, we review both decisions to that extent. See

id. Although we typically lack jurisdiction to review the BIA’s denial of an INA

§ 240A, 8 U.S.C. § 1229b application for cancellation of removal pursuant to INA

§ 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), we retain jurisdiction to review

questions of law. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Alhuay v. U.S.


                                          2
               Case: 14-13080     Date Filed: 05/22/2015   Page: 3 of 5


Att’y Gen., 661 F.3d 534, 549 (11th Cir. 2011) (per curiam). To the extent that the

BIA’s or IJ’s decision was based on a legal determination, we review that decision

de novo. Nreka v. U. S. Att’y Gen., 408 F.3d 1361, 1368 (11th Cir. 2005).

        Section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1), states, in relevant

part, that “[t]he Attorney General may cancel removal of, and adjust to the status

of an [immigrant] lawfully admitted for permanent residence, an [immigrant] who

is inadmissible or deportable from the United States if the [immigrant]—[among

other requirements] (A) 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 . . . ” However, “[a]ny period of . . . continuous physical presence in

the United States shall be deemed to end . . . when the [immigrant] is served a

notice to appear under [INA § 239(a), 8 U.S.C. § 1229(a)].” INA § 240A(d)(1), 8

U.S.C. § 1229b(d)(1). This provision is commonly referred to as the “stop-time”

rule. Tefel v. Reno, 180 F.3d 1286, 1289 (11th Cir. 1999).

        Section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), provides, in relevant

part:

        In removal proceedings under [INA§ 240; 8 U.S.C. § 1229a], written
        notice (in this section referred to as a “notice to appear”) shall be
        given . . . to the [immigrant] . . . specifying the following:

              (A) The nature of the proceedings against the [immigrant].
              (B) The legal authority under which the proceedings are
              conducted.
              (C) The acts or conduct alleged to be in violation of law.
                                          3
              Case: 14-13080     Date Filed: 05/22/2015   Page: 4 of 5


             (D) The charges against the [immigrant] and the statutory
                 provisions alleged to have been violated.
              (G)(i) The time and place at which the proceedings will be
             held.

INA § 239(a)(1), 8 U.S.C. § 1229(a)(1) (emphasis added).

      When a statute is ambiguous with respect to a particular issue, a court must

determine whether the agency’s answer was based on a permissible construction of

the statute. Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843, 104 S. Ct.

2778, 2782 (1984). “[T]he BIA should be accorded Chevron deference as it gives

ambiguous statutory terms concrete meaning through a process of case-by-case

adjudication.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S. Ct. 1439, 1445

(1999) (internal quotation marks omitted).

      The BIA’s interpretation of the stop-time rule permissibly construes the text

of the statute and the context in which it appears. Chevron, 467 U.S. at 843, 104 S.

Ct. at 2782. The statute identifies a particular form that must be served on the

individual, but it does not say that only a form that contains every item, including a

yet-to-be-determined time and date for a hearing, stops the ten-year clock. See

INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1). In In re Camarillo, the BIA stated that

“the best reading of the statute as a whole is that Congress intended the phrase

‘under section [1229](a)’ after ‘notice to appear’ to specify the document the DHS

must serve on the [immigrant] to trigger the ‘stop-time’ rule.” 25 I. & N. Dec. 644,

647 (2011). According to the BIA, “[a] primary purpose of [an NTA] is to inform
                                          4
              Case: 14-13080     Date Filed: 05/22/2015   Page: 5 of 5


an [immigrant] that the Government intends to have him or her removed from the

country, but the inclusion of the date and time of the hearing is not necessary for

the Government’s intention in this regard to be conveyed.” Id. at 650. We defer to

the BIA’s interpretation of the stop-time rule. Aguirre-Aguirre, 526 U.S. at 425,

119 S. Ct. at 1445. Thus, the BIA did not err in determining that O’Garro did not

establish his eligibility for cancellation of removal. Upon review of the record and

consideration of the parties’ briefs, we deny O’Garro’s petition.

      PETITION DENIED.




                                          5
