                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2005

Okeke v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-1831




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Okeke v. Atty Gen USA" (2005). 2005 Decisions. Paper 1089.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1089


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                     __________

                        No. 03-1831/4640
                          __________

                 ANDERSON JUDE OKEKE,
                             Petitioner,

                                v.

                 ALBERTO R. GONZALES,*
             Attorney General of the United States,
                                   Respondent.
                        __________

         On Petition for Review of Orders of Removal
           from the Board of Immigration Appeals
                  U.S. Department of Justice
          Executive Office for Immigration Review
                   (BIA No. A26-188-596)
                          __________

                   Argued: October 28, 2004
                        ___________


        * Attorney General Alberto Gonzales has been substituted for
former Attorney General John Ashcroft, the original respondent in
this case, pursuant to Fed. R. App. P. 43(c).
Before: NYGAARD, AMBRO, and GARTH, Circuit Judges

               (Opinion Filed: May 18, 2005)
                        __________

                 OPINION OF THE COURT
                       __________




Joseph C. Hohenstein, Esq. (ARGUED)
Nationalities Service Center
1300 Spruce Street
Philadelphia, PA 19107

Attorney for Petitioner
Anderson Jude Okeke

James E. Grimes, Esq. (ARGUED)
John D. Williams, Esq.
Douglas E. Ginsburg, Esq.
Linda S. Wernery, Esq.
Mary Jane Candaux, Esq.
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878, Civil Division
Washington, D.C. 20044

Attorney for Respondent
Attorney General of the United States
Garth, Circuit Judge:

        Anderson Jude Okeke, a native and citizen of Nigeria,
petitions for review of two orders from the Board of
Immigration Appeals (“BIA”). Those orders affirmed the
Immigration Judge’s (“IJ”) decision that Okeke could not
demonstrate the requisite continuous physical presence in the
United States in order to qualify for cancellation of removal.
Essentially, the BIA found that the “stop-time” provision (8
U.S.C. § 1229b(d)(1)), once triggered, precludes the accrual of
a new period of continuous presence, which in this case would
possibly commence with Okeke’s lawful reentry into the United
States. That lawful reentry–the critical fact on appeal–occurred
after Okeke committed a controlled substance offense, which,
pursuant to 8 U.S.C. § 1229b(d)(1), clearly ended any prior
period of continuous physical presence. The question presented
in this appeal, therefore, is whether Okeke is entitled to a new
period of continuous physical presence, commencing upon his
lawful reentry into the United States, so as to allow him to
accrue the time required to establish eligibility for cancellation
of removal. See 8 U.S.C. § 1229b. For the reasons stated
herein, this Opinion of the Court concludes that the clock should
have restarted upon Okeke’s reentry. The Petition for Review
will therefore be granted.

                               I.

       The facts on appeal are reasonably straightforward.
Okeke first entered the United States on September 15, 1981,
pursuant to a F-1 student visa in order to attend Touro College.
In January of 1983, after returning to Nigeria for personal
reasons, Okeke attempted to reenter the United States at John F.
Kennedy Airport, whereupon he was arrested for possession of
marijuana. Okeke has testified that he appeared before a court
in Queens, New York, where he pled guilty to possession of
marijuana and received a sentence of five years probation.

       After that incident, Okeke returned to Nigeria on two
further occasions, once in December 1983 and then again in
April 1984. On both occasions, he was lawfully re-admitted to
the United States under his student visa. Since returning from
Nigeria in May of 1984, Okeke has lived here without
interruption.

        On December 29, 1997, the Immigration and
Naturalization Service (“INS”) filed a Notice to Appear
(“NTA”), charging Okeke with removability under 8 U.S.C. §
1227(a)(1)(C)(i), inasmuch as he failed to maintain or comply
with the terms of his nonimmigrant admission to the United
States (i.e., he no longer attended Touro College).1 This was the

       1
           The NTA stated as follows:

       The Service alleges that you:
       1. You are not a citizen or national of the United States;
       2. You are a native of Nigeria and a citizen of Nigeria;
       3. You were admitted to the United States at New York, NY
       on or about May 5, 1984 as a nonimmigrant student to attend
       Touro College in New York, N.Y. for your duration of stay;
       4. You did not attend Touro College in New York, N.Y.
       after May 1985. You have failed to maintain or comply with
       the conditions of the nonimmigrant status under which you
       were admitted.

       On the basis of the foregoing, it is charged that you are
       subject to removal from the United States pursuant to the
only ground of deportation charged in the NTA. Okeke
admitted to the allegations in the NTA, but filed an application
for cancellation of removal.2

       At the removal hearing on July 27, 1999, the IJ concluded
that Okeke could not demonstrate the requisite continuous
physical presence in the United States to qualify for cancellation
of removal. The IJ found sufficient proof of the commission of
a controlled substance offense,3 a crime providing for
inadmissibility. Such an act would have triggered the “stop-
time” provision, see 8 U.S.C. § 1229b(d)(1), and would have
stopped Okeke’s accrual of continuous physical presence well
before he could establish the necessary ten years required by the
cancellation of removal statute: Okeke entered the country in
1981 and committed the crime in 1983.

       On appeal to the BIA, Okeke contested the IJ’s finding
on two grounds. First, Okeke argued that there was insufficient



       following provision(s) of law:
       Section 237(a)(1)(C)(i) of the [] Immigration and Nationality
       Act (Act), as amended, in that after admission as a
       nonimmigrant under section 101(a)(15) of the Act, you failed
       to maintain or comply with the conditions of the
       nonimmigrant status under which you were admitted.
       2
          Okeke and his wife, who together have six children, all of
whom are United States citizens, self-reported to the INS to pursue
their cancellation of removal claims. The INS issued the NTAs in
response thereto. Mrs. Okeke (A74-993-531) received approval for
her cancellation of removal claim (which was separated from her
husband’s claim at the July 27, 1999 hearing) on December 12, 2002,
because she demonstrated the “exceptional and extremely unusual
hardship” required by the statute.
       3
         The IJ based this finding on Okeke’s admissions during the
hearing and a National Criminal Information Center (“NCIC”) print-
out provided by the government.
proof of conviction, precluding the application of the “stop-
time” provision. The BIA rejected this contention, finding that
both the admissions and the NCIC report were probative of
Okeke’s commission of a controlled substance offense. Second,
Okeke challenged the IJ’s decision that he failed to establish the
requisite ten years continuous physical presence to qualify for
cancellation of removal.

       Rejecting this contention as well, the BIA concluded that
the commission of a controlled substance offense is not simply
interruptive of the period of continuous physical presence, but
is a terminating event, after which no further continuous
presence can accrue for purposes of cancellation of removal.
The BIA thus affirmed the IJ’s decision, ordering Okeke to
voluntarily depart from the United States.

       Thereafter, Okeke filed a motion for reconsideration,
which was denied by the BIA on November 28, 2003, for failure
to assert new legal arguments. Okeke filed timely petitions for
review of both BIA decisions, which were consolidated for
purposes of appeal on December 5, 2003.

                                 II.

       Appellate jurisdiction is derived from 8 U.S.C. § 1252.4


       4
          Because this appeal concerns the BIA’s interpretation of the
“stop-time” provision, 8 U.S.C. §§ 1229b(b)(1)(A), 1229b(d)(1), a
purely legal determination, the prohibition against appellate review
of discretionary determinations is not applicable. See 8 U.S.C. §
1252(a)(2)(B) (“no court shall have jurisdiction to review . . . any
other decision or action of the Attorney General the authority for
which is specified under this subchapter [8 U.S.C. §§ 1151-1378] to
be in the discretion of the Attorney General”) (emphasis added);
Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir. 2001) (holding
that “continuous physical presence” element is not a discretionary
factor); see also Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178
The Court must review the BIA’s statutory interpretation of the
INA under the deferential standard of Chevron, U.S.A., Inc. v.
Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984).
In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), this Court stated,
“‘if the statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s answer
is based on a permissible construction of the statute.’” Id. at
1239 (quoting Chevron, 467 U.S. at 843).

                                 III.

      Okeke sought cancellation of removal under 8 U.S.C. §
1229b(b).5 Inasmuch as the BIA held that Okeke failed to meet



(3d Cir. 2003) (concluding “that, for nondiscretionary factors, the
Court maintains jurisdiction, but as to discretionary decisions we lack
jurisdiction”).
       5
         8 U.S.C. § 1229b(b)(1) provides that the Attorney General
may cancel removal of an inadmissible or deportable alien if the alien
meets four threshold requirements:

       The Attorney General may cancel removal of, and adjust to
       the status of an alien lawfully admitted for permanent
       residence, an alien who is inadmissible or deportable from the
       United States if the alien--
       (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;
       (B) has been a person of good moral character during such
       period;
       (C) has not been convicted of an offense under section
       1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title (except in a
       case described in section 1227(a)(7) of this title where the
       Attorney General exercises discretion to grant a waiver); and
       (D) establishes 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
the first threshold requirement for consideration of cancellation
of deportation–continuous physical presence in the United States
for not less than ten years, this opinion limits its discussion to
that narrow issue.

       A period of continuous presence is “deemed to end”
either (1) when an alien is served with a Notice to Appear
placing him in immigration proceedings or (2) when the alien
commits an offense described in 8 U.S.C. § 1182(a)(2) that
renders him inadmissible under that section or deportable under
8 U.S.C. § 1227(a)(2) or (a)(4), “whichever is earliest.” 8
U.S.C. § 1229b(d)(1). Here, Okeke’s commission of a
controlled substance offense in 1983 is “an offense referred to
in” 8 U.S.C. § 1182(a)(2)(A)(i)(II), which triggered the “stop-
time” provision of the cancellation of removal statute, 8 U.S.C.
§ 1229b(d)(1).6

       Okeke contends that his most recent admission to the


       admitted for permanent residence.

Id.
       6
           A threshold question here is whether the BIA correctly
found that Okeke had committed a crime of inadmissibility, where the
record evidence included an uncertified NCIC report and Okeke’s
admission. Only upon a proper finding of the fact of a controlled
substance offense does the analysis proceed to the next inquiry –
whether the BIA properly interpreted the “stop-time” provision of the
cancellation of removal statute. However, the Court need not dwell
on this initial question because it concludes that, even if there was
sufficient evidence of the commission of a crime of inadmissibility,
the BIA’s interpretation of the “stop-time” provision was nevertheless
erroneous. The Court hastens to add, however, that Okeke’s
admission to the offense and conviction, coupled with the
corroborative evidence in the NCIC report, would appear to support
the BIA’s finding of a crime of inadmissibility.
United States on May 5, 1984 established a new and valid period
of continuous presence. The government disagrees, relying on
Matter of Mendoza-Sandino, 22 I. & N. Dec. 1236 (BIA 2000),
for the proposition that once a triggering event occurs –
commission of a controlled substance offense in this case – the
continuous physical presence clock does not start anew.

        In Mendoza-Sandino, a majority of the en banc BIA
interpreted INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1), to mean
“that the continuous physical presence clock does not start anew
after the service of an Order to Show Cause.” Id. at 1240.
Several courts of appeals have deferred to this interpretation.
See Ram v. INS, 243 F.3d 510, 517-18 (9th Cir. 2001) (holding
that alien does not begin a new period of continuous physical
presence after being served with an Order to Show Cause);
Najjar v. Ashcroft, 257 F.3d at 1299-1300; McBride v. INS, 238
F.3d 371, 377 (5th Cir. 2001); Afolayan v. INS, 219 F.3d 784,
789 (8th Cir. 2000).

        However, none of those cases, Mendoza-Sandino itself
included, addressed the distinct issue of whether lawful reentry
after commission of an offense, rendering the alien inadmissible,
restarts the clock. Indeed, none of those cases involved an
individual who left the United States and reentered. In
Mendoza-Sandino, the petitioner had been charged in an Order
to Show Cause and then had deliberately delayed or “stalled” all
proceedings until seven years had elapsed in order to qualify for
the requisite continuous physical presence.7 Mendoza-Sandino
was written to forestall reliance on a seven-year presence where
the petitioner had sought to “buy time.” That is not the situation
here. Because Okeke lawfully reentered the country (twice)
after a previous clock-stopping event, this case is factually,
indeed dramatically, different, and the government’s reliance on



       7
          8 U.S.C. § 1229b(b)(1) now requires ten years continuous
physical presence. See note 5 supra.
Mendoza-Sandino is misplaced.8

       This analysis is therefore informed by another published
decision from the BIA – In re Ignacio Cisneros-Gonzalez, 23 I.
& N. Dec. 668 (BIA 2004).            In Cisneros-Gonzalez, the
respondent – a native and citizen of Mexico – was served with
an Order to Show Cause charging him with deportability as an
alien who entered the United States without inspection, and he
was deported to Mexico the same day. He returned to the
United States the very next day without being admitted or
paroled, and had remained in this country since that time. He
had thus ostensibly accrued the requisite ten years of continuous
physical presence from the time of his unlawful re-entry.

       Distinguishing Mendoza-Sandino, Cisneros-Gonzalez
quite properly states:

       [Mendoza-Sandino] did not resolve the question,
       presented here, whether an alien who departed the United
       States after being served with a valid charging document
       can seek relief in a subsequent removal proceeding,
       based on a new period of continuous physical presence
       measured from the date of his return. Applying the
       “stop-time” rule to an alien in these latter circumstances


       8
          Judge Ambro, in his concurrence, interprets Mendoza as an
incorrect expression of § 1229b(d)(1), contending that it wrongfully
makes no provision for a new period of continuous physical presence.
By contrast, Judge Nygaard in his dissenting opinion relies on
Mendoza to preclude the accrual of a second period of continuous
physical presence. Mendoza, of course, addressed an entirely
different issue (Mendoza held that an alien could not qualify for the
required continuous physical presence by deliberately delaying
proceedings, after an NTA had been served, until sufficient years had
elapsed). Because this opinion relies on the authority and
applicability of Cisneros, it does not join the interpretations of
Mendoza given by either Judge Ambro or Judge Nygaard.
       implicates ambiguities in the language and purpose of
       section 240A(d)(1) that were not present in Matter of
       Mendoza-Sandino, supra.

23 I. & N. Dec. at 670. At issue in Cisneros, then, was whether
an alien who departs the United States can, upon his subsequent
return, even if illegal, accrue a new period of continuous
physical presence – measured from the date of his return – so as
to demonstrate statutory eligibility for cancellation of removal.
The BIA held that such an alien could establish the requisite
continuous physical presence. Id. at 672.

        Cisneros-Gonzalez, therefore, allows for the accrual of a
new period of continuous physical presence upon an alien’s
reentry into the United States. The BIA, at the time of its ruling
in this case, relied heavily on Mendoza-Sandino, lacking the
benefit of the Cisneros-Gonzalez decision, which was issued
after the BIA’s decision. Applying Cisneros-Gonzalez here, the
clock started anew as soon as Okeke reentered the country in
1984.

        Cisneros-Gonzalez, it is true, involved two removal
proceedings, where the clock stopped upon the filing of the
Notice to Appear in the first removal proceeding. Okeke,
according to the record, had committed a crime of
inadmissibility, but had not been served with a Notice to Appear
until 1997. However, the commission of a specified crime is the
functional equivalent of the service of a Notice to Appear for
purposes of triggering the “stop-time” provision. As stated
earlier, a period of continuous presence is “deemed to end”
either (1) when an alien is served with a Notice to Appear
placing him in immigration proceedings or (2) when the alien
commits an offense described in 8 U.S.C. § 1182(a)(2) that
renders him inadmissible under that section or deportable under
8 U.S.C. § 1227(a)(2) or (a)(4), “whichever is earliest.” 8
U.S.C. § 1229b(d)(1). As a result, the difference in triggering
events in no way precludes the application of Cisneros-
Gonzalez.

        What matters here is the reason for the recommencement
of the accrual period for purposes of cancellation of removal.
As in Cisneros-Gonzalez, Okeke reentered the country, though
the reentry in his case was lawful.         The critical fact for
restarting the clock in Cisneros-Gonzalez was the reentry, not
the filing of the Notice to Appear in the first removal
proceeding. Where, as here, there is (lawful) reentry after a
clock-stopping event (i.e., the commission of a controlled
substance offense), the clock starts anew. Indeed, Okeke is an
a fortiori application of the Cisneros doctrine, particularly when
one considers that Okeke’s reentry was lawful and Cisneros’s
was not – yet Cisneros was allowed to qualify for his continuous
presence.

       Moreover, this case is not about deporting an alien who
had committed a crime. The NTA in this case made no reference
to Okeke’s alleged commission of the controlled substance
offense. The Court expresses no opinion as to Okeke’s
immigrant status had such a charge been made, either when the
action was allegedly committed or when the NTA was
eventually filed.

        The NTA provides that Okeke entered the United States
on May 5, 1984 to attend Touro College. It is significant that,
although Okeke had initially entered the United States in 1981
and had, after departing, reentered again in December of 1983,
the NTA contained no charge respecting his alleged commission
of a controlled substance offence in January of 1983. Rather, as
note 1 above reflects, the NTA confines itself to the student
status of Okeke. And it is that status that is dealt with here.

        Pursuant to the express terms of the NTA, then, it is that
final entry that should be considered in calculating the ten years
continuous physical presence. To focus on events occurring
prior to that time, when the NTA makes no mention of them, is
both illogical and unjust.

                                IV.

       Okeke admitted to committing a controlled substance
offense in 1983; “an offense referred to in” 8 U.S.C. §
1182(a)(2)(A)(i)(II), which implicated the “stop-time” provision
of the cancellation of removal statute, 8 U.S.C. § 1229b(d)(1).
Yet, because Okeke lawfully reentered this country after
committing a crime of inadmissibility, this opinion holds that the
accrual period should have recommenced. See Matter of
Cisneros, supra.

      Accordingly, the Court will GRANT the Petition for
Review of the BIA’s decisions, and remand this matter to the
BIA for further proceedings consistent with this opinion.9




       9
          On November 28, 2003, the BIA denied Okeke’s motion for
reconsideration of its previous decision. Although Okeke also seeks
review of that decision, it has been rendered moot by our decision to
grant his Petition for Review of the BIA’s February 25, 2003 order
dismissing his appeal.
AMBRO, Circuit Judge, concurring

        Mr. Okeke seeks cancellation of removal. To qualify, he must
establish, among other things, continuous physical presence in the
United States for ten years immediately preceding his application for
that relief. 8 U.S.C. § 1229b(b)(1)(A).10 “[A]ny period” of
continuous physical presence is “deemed to end” when an alien
commits a controlled substance offense. 8 U.S.C. § 1229b(d)(1);11 8
U.S.C. § 1182(a)(2). The Board of Immigration Appeals (“BIA”)
held that, under § 1229b(d)(1), Okeke’s 1983 controlled substance
offense12 ended his period of continuous physical presence. The BIA


       10
            Section 1229b(b)(1)(A) reads:

       [The Attorney General may cancel removal of an
       alien who is inadmissible or deportable from the
       United States if the alien] 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[.]
       11
            Section 1229b(d)(1) provides:

       Termination of continuous period

       For purposes of this section, any period of continuous
       residence or continuous physical presence in the United
       States shall be deemed to end (A) . . . when the alien is
       served a notice to appear under section 1229(a) of this
       title, or (B) when the alien has committed an offense
       referred to in section 1182(a)(2) of this title that renders
       the alien inadmissible to the United States under section
       1182(a)(2) of this title or removable from the United
       States under section 1227(a)(2) or 1227(a)(4) of this
       title, whichever is earliest.
       12
         The BIA held that in 1983 Okeke possessed marijuana in
violation of New York Penal Law § 221.20.
further held that, under In re Mendoza-Sandino, 22 I. & N. Dec. 1236
(BIA 2000), a new period of continuous physical presence could not
begin after an old period ends under § 1229b(d)(1). It thus concluded
that Okeke had not accrued the required ten year period
necessary to qualify for cancellation of removal under
§ 1229b(b)(1), as he first entered the United States in 1981 and
his period of continuous physical presence ended in 1983 (with
the commission of the drug offense in New York) and could not
start over.

       Okeke argues that, even assuming he committed a
qualifying drug offense in 1983, he began a new period of
continuous physical presence on May 5, 1984—the date of his
most recent admission into the United States. Because he was
continuously physically present in the United States until he
applied for cancellation of removal more than ten years later in
1998, Okeke contends he meets the ten year period requirement.

        Both Judge Garth and I agree with Okeke. But we do so
by traveling different paths of analysis. He believes the BIA’s
recent decision in In re Cisneros-Gonzalez, 23 I. & N. Dec. 668
(BIA 2004), limits the reach of Mendoza and mandates the result
here. I do not believe Cisneros goes so far and instead conclude
that Mendoza is an impermissible reading of § 1229b(d)(1),
even after according the BIA the deference called for under
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984).

       I.      Cisneros does not hold that a new period of
               continuous physical presence begins whenever
               an alien reenters the United States.

       As Judge Garth correctly notes, Cisneros states that
Mendoza “did not resolve the question, presented here, whether
an alien who departed the United States after being served with
a valid charging document can seek relief in a subsequent
removal proceeding, based on a new period of continuous
physical presence measured from the date of his return.”
Cisneros, 23 I. & N. Dec. at 670. In fact, Cisneros holds that an
alien who departed the United States after being served with a
valid charging document can seek relief in a subsequent removal
proceeding, based on a new period of continuous physical
presence measured from the date of his return. However, the
reason the alien can seek relief in a subsequent removal
proceeding is not because he or she left and reentered the United
States. Rather, the BIA reasoned, it is because “the ‘notice to
appear’ referred to in section [1229b(d)(1)] pertains only to the
charging document served in the proceedings in which the alien
applies for cancellation of removal, and not to charging
documents served on the alien in prior proceedings” (hereinafter
“the Cisneros rule”).13 Id. at 672.

        The Cisneros rule, in context, applied as follows.
Cisneros received an NTA for his first removal proceeding
(“NTA #1”) in 1990. He was deported on January 10, 1991, and
illegally returned the next day. He was present in the United
States from then until he received an NTA for his second
removal proceeding (“NTA #2”) on June 5, 2001—more than 10
years after his illegal return. When Cisneros applied to cancel
the removal order based on the proceedings begun on June 5,
2001, the BIA held that only NTA #2, not NTA #1, ended his
period of physical presence under § 1229b(d)(1) because, to
repeat, “the ‘notice to appear’ referred to in [§ 1229b(d)(1)]
pertains only to the charging document served in the


       13
        Cisneros crafted a sensible rule for calculating periods
of presence with regard to notices to appear (“NTAs”) insofar
as, under that case, if the outcome of the proceedings initiated
by an NTA is favorable to an alien (or if an alien receives an
NTA by mistake), the alien will not “lose” continuous physical
presence time accumulated before he or she received the
“invalid” NTA.
proceedings in which [Cisneros] applie[d] for cancellation of
removal [that is, NTA #2], and not to charging documents
served on [him] in prior proceedings [that is, NTA #1].”
Cisneros, 23 I. & N. Dec. at 672.

      In this context, I do not believe that Okeke can rely on
Cisneros, for it does not overrule Mendoza’s determination that
“the clock cannot be reset so that an alien accrues continuous
physical presence . . . after . . . the commission of a specified
crime.” Mendoza, 22 I. & N. Dec. at 1240. Cisneros does not
change Mendoza’s rule that, when an alien commits a crime
specified in § 1229b(d)(1) or receives an NTA specified in
§ 1229b(d)(1), any period of continuous presence ends and no
other period shall ever begin again. Instead, Cisneros merely
clarifies which NTA is specified in § 1229b(d)(1) (only the
NTA served in the proceedings in which the alien applies for
cancellation of removal). Cisneros, 23 I. & N. Dec. at 670.
Under Mendoza, and even after Cisneros, Okeke cannot reset
his clock and accrue continuous physical presence time because
he committed an offense specified in § 1229b(d)(1). The mere
fact of his subsequent reentering (whether lawful or unlawful)
does not change this situation. Thus, if Okeke is to prevail, I
believe that we must conclude that Mendoza’s interpretation of
§ 1229b(d)(1) is not permitted. For the following reasons, I
believe we should do so.

       II.    Okeke began a new period of continuous
              physical presence after he committed a
              specified offense because Mendoza’s
              interpretation of § 1229b(d)(1) is
              impermissible. Section 1229b(d)(1) must be
              interpreted to allow the continuous physical
              presence clock to restart after the commission
              of a specified offense .

      Mendoza’s interpretation of § 1229b(d)(1)—that the
clock cannot be reset so that an alien accrues continuous
physical presence after the commission of a specified
offense—is incorrect. Properly construing the statute, Okeke
began a new period of continuous physical presence after he
committed the offense at issue.

        We review the BIA’s interpretation of § 1229b(d)(1)
according to the standards set out in Chevron. See Katsis v.
INS, 997 F.2d 1067, 1069 (3d Cir. 1993). If Congress has
directly spoken on an issue, we give the BIA no deference.
Chevron, 467 U.S. at 842-43. If a statute is silent or ambiguous
on the issue, we ask whether the BIA’s interpretation is based
on a permissible construction of the statute. Id. at 843.
However, “[t]he judiciary is the final authority on issues of
statutory construction . . . . If a court, employing traditional
tools of statutory construction, ascertains that Congress had an
intention on the precise question at issue, that intention is the
law and must be given effect.” Chevron, 467 U.S. at 843 n.9
(citations omitted).

       Perhaps the most fundamental principle of statutory
construction is that words in a statute must be given their
ordinary meaning whenever possible. See Walters v. Metro.
Educ. Enters., Inc., 519 U.S. 202, 207 (1997). Section
1229b(d)(1)’s clause “any period . . . shall be deemed to end”
should be given its ordinary meaning: any period ends. The
ordinary meaning of this clause simply does not imply that
future periods of continuous presence are barred. Yet, Mendoza
not only interpreted it to mean any period ends, but also added
whole cloth that no future period can begin anew. 22 I. & N.
Dec. at 1240.

       Another plain language argument for interpreting
§ 1229b(d)(1) to allow the continuous physical presence clock
to restart focuses on its “any period” language. “[A]ny”
indicates that there can be multiple periods of physical presence.
As BIA Member Guendelsberger’s dissent in Mendoza notes:
       the core statement that “any period of continuous
       presence . . . shall be deemed to end” strongly
       suggests that there may be more than one period
       to be considered. Although [§ 1229b(d)] clearly
       cuts off the accrual of a period of time prior to a
       specified event, it does not speak to periods of
       time after the event in question. The reference to
       ending “any period” of physical presence suggests
       that another period of physical presence ensues.

22 I. & N. Dec. at 1245-46 (Guendelsberger, dissenting).

       In addition, interpreting § 1229b(d)(1) to allow the
continuous physical presence clock to restart avoids a logical
conundrum, as Mendoza’s interpretation requires periods of
continuous physical presence to “end” before they even begin.
BIA Member Villageliu, dissenting in Mendoza, pointed out this
incongruity:

       The word “period” means “an interval of time.”
       Putting the words “any period” in context with the
       words “continuous physical presence” cannot
       logically refer to a period of time whose
       continuity would be ended before the period of
       time even begins because, logically, continuity
       would not transcend its own ending.

22 I. & N. Dec. at 1254 (citation omitted) (Villageliu,
dissenting).

        A further argument for interpreting § 1229b(d)(1) to
allow the continuous physical presence clock to restart is that it
preserves the concept of a “period of continuous physical
presence,” explicitly described in the plain language of the
statute, with regard to aliens seeking cancellation of removal
under § 1229b(b)(1) who have committed a crime specified in
§ 1229b(d)(1). Otherwise, the concept of a “period of
continuous physical presence” is destroyed because, as
explained below, the effective rule under Mendoza’s
interpretation of § 1229b(d)(1) is that if you commit a specified
offense you can never get a cancellation of removal under
§ 1229b(b)(1) (regardless of any periods of continuous presence,
no matter when or how long they were). If Congress had meant
this to be the rule, it would simply have stated it.

        The reason the effective rule under Mendoza’s
interpretation of § 1229b(d)(1) is that if you commit a specified
offense you can never get a cancellation of removal under
§ 1229b(b)(1) is as follows. Section 1229b(b)(1) requires that,
for cancellation of removal, an alien must have been “physically
present in the United States for a continuous period of not less
than ten years immediately preceding the date of such
application.” 8 U.S.C. § 1229b(b)(1)(A) (emphasis added).
Thus, an alien cannot use an “old period”—that is, a past period
that is not “immediately preceding” his or her application for
cancellation of removal under § 1229b(b)(1)—to support such
an application. Thus, for example, an alien filing an application
in year 19, who arrived in the United States in year 0 and
committed a specified offense in year 10, could not use the
period from year 0 to year 10 because that period does not
“immediately preced[e]” the filing of the application in year 19.
Hence, if (1) an alien can never use an old period, and (2) under
Mendoza’s interpretation, the clock can never restart, Mendoza,
22 I. & N. Dec. at 1240, then as soon as an alien commits a
specified offense he or she will never be able to show ten years
of continuous physical presence immediately preceding the
application for cancellation of removal. Therefore, the effective
rule under Mendoza’s interpretation of § 1229b(d)(1) is that if
you commit a specified offense you can never get a cancellation
of removal under § 1229b(b)(1). In this context, interpreting
§ 1229b(d)(1) to allow the continuous physical presence clock
to restart preserves the concept of a “period of continuous
physical presence,” otherwise destroyed under Mendoza’s
interpretation of § 1229b(d)(1), with regard to aliens seeking
cancellation of removal under § 1229b(b)(1) who have
committed a crime specified in § 1229b(d)(1).

       Importantly, there is an event that bars an alien from
receiving cancellation of removal under § 1229b(b)(1), but it is
not commission of a specified offense; rather, it is conviction of
a specified offense. Section 1229b(b)(1)(C) says that an alien
can never get a cancellation of removal under § 1229b(b)(1) if
he or she has “been convicted” of a specified offense.14 If the
rule was the same for commissions and convictions, why did
Congress make the distinction? 15

        14
          Judge Nygaard would hold that Okeke is ineligible for
cancellation of removal under § 1229b(b)(1)(C). However, neither
the IJ nor the BIA addressed the issue of whether Okeke is ineligible
under § 1229b(b)(1)(C), and neither the Government nor Okeke has
raised the issue to us. As the Government itself acknowledges in its
brief, the issue before us is not whether Okeke was convicted of a
controlled substance offense (and is thus ineligible for cancellation of
removal under § 1229b(b)(1)(C)), but rather whether Okeke
committed an offense that permanently ended his period of
continuous physical presence (and is thus ineligible under
§ 1229b(b)(1)(A)). See Government Brief at 16-19 (“Okeke is
ineligible for cancellation of removal not because he was convicted
but because he committed a controlled substance offense.” (emphasis
in original)). We thus may not raise the issue sua sponte and decide
it de novo. Rather, we must remand so that the BIA may have the
first opportunity to address the issue. See INS v. Ventura, 537 U.S.
12, 15-16 (2002) (holding that the Ninth Circuit erred in addressing
an issue not yet addressed by the BIA and stating that “[a] court of
appeals ‘is not generally empowered to conduct a de novo inquiry into
the matter being reviewed and to reach its own conclusions based on
such an inquiry.’ Rather, ‘the proper course, except in rare
circumstances, is to remand to the agency for additional investigation
or explanation.’” (quoting Fla. Power & Light Co. v. Lorion, 470
U.S. 729, 744 (1985))).
       15
        Another argument for interpreting § 1229b(d)(1) to
allow the continuous physical presence clock to restart is that,
       Moreover, the forerunner statutory section to § 1229b, §
244 of the Immigration and Nationality Act (“INA”) (codified
at 8 U.S.C. § 1254 (repealed 1996)),16 was interpreted as


when the clock is not allowed to restart, an odd rule (probably
not intended by Congress) is created for permanent resident
aliens applying for cancellation of removal under § 1229b(a).
This provision does not have an “immediately preceding the
date of such application” requirement. Rather, § 1229b(a)
requires only that an alien “has resided in the United States
continuously for 7 years.” 8 U.S.C. § 1229b(a)(2).
       The following example will illustrate the strange rule
that results under § 1229b(a) when the continuous presence
clock (or continuous residence clock in the case of § 1229b(a))
is not allowed to restart. Permanent resident alien “X” has
resided in the United States since year 0, but in year 1
committed a offense specified in § 1229b(d)(1). If X applies for
cancellation of removal under § 1229b(a) in year 20, X will not
qualify because X did not reside in the United States
continuously for 7 years, as X’s period of continuous residency
ended in year 1 and did not restart. On the other hand,
permanent resident alien “Y” has only resided in the United
States since year 11, and in year 19 committed an offense
specified in § 1229b(d)(1). If Y applies for cancellation of
removal under § 1229b(a) in year 20, Y will qualify because Y
resided in the United States continuously for over 7 years (from
year 11 to 19). Why would Congress prefer to cancel the
removal of Y who has resided continuously in the United States
for approximately half as long as X? More importantly, why
would Congress choose to cancel the removal of Y (who has
committed an offense recently, is less likely reformed, and is
more likely to recidivate), but not cancel the removal of X (who
has committed an offense less recently, is more likely reformed,
and is less likely to recidivate)?
       16
         The Conference Report states that “[n]ew section 240A
[codified at 8 U.S.C. §1229b] establishes revised rules for the type of
allowing the continuous physical presence clock to restart,
Mendoza, 22 I. & N. Dec. at 1246 (Guendelsberger, dissenting),
and Congress never stated that § 1229b should be interpreted
differently. Cf. Lindahl v. Office of Pers. Mgmt., 470 U.S. 768,
782 n.15 (1985) (Where “‘Congress adopts a new law
incorporating sections of prior law, Congress normally can be
presumed to have had knowledge of the interpretation given to
the incorporated law, at least insofar as it affects the new
statute.’”) (quoting Lorillard v. Pons, 434 U.S. 575, 580-
81(1978)); Pierce v. Underwood, 487 U.S. 552, 567 (1988) (re-
enactment of a statute “generally includes the settled judicial
interpretation” thereof). Therefore, we presume that Congress
also intended § 1229b(d)(1) to allow the clock to restart.

        Under the old statutory regime—INA § 244, 8 U.S.C.
§ 1254—the duration of continuous physical presence an alien
had to demonstrate in order to be eligible for suspension of
deportation and adjustment of status depended on why the alien
was deportable. An alien deportable on most noncriminal
grounds had to demonstrate seven years of continuous physical
presence immediately preceding the alien’s application for
suspension of deportation. INA § 244(a)(1), 8 U.S.C.
§ 1254(a)(1). However, an alien deportable on most criminal
grounds had to demonstrate ten years of continuous physical
presence immediately following the commission of the act, or
assumption of the status, constituting a ground for deportation.
INA § 244(a)(2), 8 U.S.C. § 1254(a)(2). As BIA Member
Guendelsberger explained in his dissent in Mendoza, “the
resetting of the physical presence clock upon the occurrence of
particular events has been and remains inherent in the eligibility
provisions for suspension of deportation.” 22 I. & N. Dec. at


relief that is currently available to excludable and deportable aliens
under 212(c) and 244(a)-(d).” Joint Explanatory Statement,
Conference Report: Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, H.R. Rep. No. 104-828, 142 Cong.
Rec. H10841-02, H10896, 1996 WL 539315 (1996).
1246 (Guendelsberger, dissenting) (citing In re Bufalino, 11 I.
& N. Dec. 351, 357-58 (BIA 1965) (finding that a respondent
who is deportable under several grounds, one of which is listed
in § 244(a)(2), is ineligible for relief under § 244(a)(1) and must
establish eligibility under § 244(a)(2) from the date of the
commission of the last deportable act)). That the forerunner to
§ 1229b was interpreted to allow the continuous physical
presence clock to restart supports interpreting § 1229b that way.

        A final reason Mendoza’s interpretation of § 1229b(d)(1)
is impermissible is that, because of the serious consequences of
deportation, rules of statutory interpretation relating to
immigration statutes require that ambiguities be construed in the
favor of the alien. See INS v. Errico, 385 U.S. 214, 225 (1966);
Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (“To construe
this statutory provision less generously to the alien might find
support in logic. But since the stakes are considerable for the
individual, we will not assume that Congress meant to trench on
his freedom beyond that which is required by the narrowest of
several possible meanings of the words used.”); Sawkow v. INS,
314 F.2d 34, 37 (3d Cir. 1963) (“Of course, any doubt in the
interpretation of the statute must be resolved in favor of the
alien . . . .”).

                          Conclusion

        We review the BIA’s interpretation of § 1229b(d)(1)
according to the standards set forth in Chevron. As the statute
is silent or ambiguous on the issue of whether the continuous
physical presence clock may restart, we ask whether the BIA’s
interpretation is based on a permissible construction of the
statute. In Chevron, the Supreme Court stated that if we
determine, using the traditional tools of statutory construction,
that Congress had an intention on an issue of statutory
interpretation, we must give effect to that intention. Using the
traditional tools of statutory construction, I determine that
Congress intended in § 1229b(d)(1) to allow the continuous
physical presence clock to restart after the commission of a
specified offense.    Thus, Mendoza’s interpretation of
§ 1229b(d)(1) to mean that the clock cannot be reset so that an
alien accrues continuous physical presence after the commission
of a specified offense is impermissible.

       Assuming Okeke committed a controlled substance
offense in 1983, he began a new period of continuous physical
presence on May 5, 1984—the date of his most recent
admission into the United States. Thus, because Okeke was
continuously physically present in the United States from May
5, 1984 until he applied for cancellation of removal more than
ten years later, he has accrued the required ten-year period
necessary to qualify for cancellation of removal under
§ 1229b(b)(1). I therefore concur with the result reached by
Judge Garth.
NYGAARD, Circuit Judge, dissenting.

       I respectfully dissent. Although I agree with most of
what the majority writes, I reach a different conclusion. I
believe that Okeke has failed to establish that he qualifies for
cancellation of removal because his period of continuous
physical presence ended when he was convicted of a controlled
substance violation. Therefore, I would affirm.

        As the majority correctly describes, to carry his burden
for cancellation of removal, Okeke must establish, inter alia,
both continuous physical presence in the United States for ten
years immediately preceding his application for relief and that
he has not been convicted of an offense under 8 U.S.C. §
1182(a)(2). See 8 U.S.C. §§ 1229b(b)(1)(A), (C). If an alien
commits a controlled substance violation under section
1182(a)(2), his period of continuous physical presence is
“deemed to end.” 8 U.S.C. § 1229b(d)(1). The BIA has held
that a new period of continuous physical presence may not
restart under section 1229b(d)(1). In re Mendoza-Sandino, 22
I. & N. Dec. 1236 (BIA 2000).

        Following Mendoza-Sandino, Okeke does not qualify for
cancellation of removal under section 1229b(b)(1). He first
entered the United States in 1981. His period of continuous
physical presence ended in 1983, pursuant to section
1229b(d)(1), when he committed a drug offense in New York.
Under the BIA’s holding in Mendoza-Sandino, Okeke may not
restart his period of continuous physical presence because the
physical presence period ended pursuant to section 1229b(d)(1).
But there is more.

       In addition to the “commission” trigger, there also exists
a “conviction” trigger, which also terminates a period of
continuous presence. Judge Ambro quite correctly states that
the event barring an alien from receiving cancellation of
removal under section 1229b(b)(1) is the conviction, not the
commission, of a specified offense. I would hold that Okeke is
not eligible for cancellation of removal because he was
“convicted” of possession of marijuana pursuant to New York
Penal Law section 221.20, which is a controlled substance
offense under section 1182(a)(2).

        A conviction is established if: “(i) a judge or jury has
found the alien guilty or the alien has entered a plea of guilty
and (ii) the judge has ordered some form of punishment, penalty,
or restraint on the alien’s liberty to be imposed.” 8 U.S.C.
§1101(a)(48)(A). “The State Department has interpreted this to
mean that a conviction will be found if: (1) there has been a plea
or judicial finding of guilt, and (2) the court has imposed a term
of probation or some other form of restraint on the defendant.”
Id; see, e.g., Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002).
Okeke does not deny that in January 1983 he pleaded guilty to,
and the court imposed a term of probation for, possession of
marijuana. Thus a “conviction” has been established regarding
Okeke’s possession of marijuana.

        Okeke, however, argues that it is not permissible to use
an individual’s testimony to prove a contested conviction. For
that proposition, he cites Matter of Pichardo, 21 I. & N. Dec.
330 (BIA 1996), in which the BIA held that the Immigration
Judge’s reliance on such extrinsic evidence of respondent’s
testimony was improper.        Id. at 334–35.     Pichardo is
distinguishable. In Pichardo, the respondent did not admit the
conviction. In contrast, Okeke has testified that he “pleaded
guilty to” and was “sentenced to probation” for possession of
marijuana, which meets the exact definition of a “conviction.”
8 U.S.C. §1101(a)(48)(A). “As the plain language [of the INA]
indicates, “conviction” includes a guilty plea. Ambiola v.
Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004); see North Carolina
v. Alford, 400 U.S. 25, 37 (1970).

       Okeke’s sworn testimony affirmatively established that
he had been convicted of possession of marijuana—a predicate
he cannot now deny. The Court of Appeals for the Eleventh
Circuit has held that an alien’s admission of a drug conviction
under oath establishes the alien’s conviction for deportation
purposes. See Fequiere v. Ashcroft, 279 F.3d 1325 (11th Cir.
2002). I would too. The Court there reasoned that the
government need not establish a drug conviction by one of the
seven forms of proof articulated in 8 U.S.C. § 1229a(c)(3)(B)
because the statute does not state that the forms of proof it lists
constitute the sole means of establishing a criminal conviction.
Id. at 1327. The Court clarified by stating that “the statute
merely says that such forms ‘shall constitute proof of a criminal
conviction,’” and “[o]ther forms of proof will suffice if
‘probative.’” Id. Okeke pleaded guilty to possession of
marijuana and was sentenced for that offense. It follows that
Okeke’s own testimony of his conviction and sentence is
probative proof of a “conviction” and therefore was properly
taken into consideration by the BIA.

       The BIA correctly found that Okeke committed and was
convicted of an offense referred to in 8 U.S.C. § 1182(a)(2). I
would hold that the BIA properly denied Okeke’s application for
cancellation of removal. He has not carried his burden to show
the requisite “continuous physical presence” in the United States
necessary to qualify for cancellation of removal. For these
reasons, I would affirm the BIA’s denial of Okeke’s Petition for
Review.
