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Keywords

statute
statute

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Lagandaon v. Ashcroft

Facts

The alien was served with a Notice to Appear for removal proceedings on May 13, 1997. Coincidentally, the relevant starting date for determining whether the alien had accrued 10 years of physical presence was May 14, 1987, the day he returned to the United States from an extended trip to Taiwan and the Philippines. The immigration judge found that Lagandaon would have qualified for and, as a matter of discretion, would have received cancellation of removal, except that he had not been present for the requisite ten years.

The alien was served with a Notice to Appear for removal proceedings on May 13, 1997. Coincidentally, the relevant starting date for determining whether the alien had accrued 10 years of physical presence was May 14, 1987, the day he returned to the United States from an extended trip to Taiwan and the Philippines.

Issue

The crucial legal question is thus whether the period beginning May 14, 1987, and ending May 13, 1997, is 'a continuous period of not less than 10 years,' 1229b(b)(1)(A).

The crucial legal question is thus whether the period beginning May 14, 1987, and ending May 13, 1997, is 'a continuous period of not less than 10 years,' 1229b(b)(1)(A).

Rule

By statute, any period of continuous presence stops running when a Notice is served. 1229b(d)(1).

By statute, any period of continuous presence stops running when a Notice is served. 1229b(d)(1).

Analysis

The court found that the BIA improperly imported the 'preceding the date' requirement of 1229b(b)(1)(A) into 1229b(d)(1) when it concluded that the date the Notice was served did not count toward the period of continuous physical presence. The court held that the plain meaning of 'when' is not 'the day before,' and thus the period of physical presence includes the date the Notice is served.

The court found that the BIA improperly imported the 'preceding the date' requirement of 1229b(b)(1)(A) into 1229b(d)(1) when it concluded that the date the Notice was served did not count toward the period of continuous physical presence.

Conclusion

The court granted the petition for review and remanded the action to the BIA to determine whether the alien should receive the relief for which he was statutorily eligible.

The court granted the petition for review and remanded the action to the BIA to determine whether the alien should receive the relief for which he was statutorily eligible.

Who won?

The petitioner, Melquiades Lagandaon, prevailed because the court found that the BIA's interpretation of the statute was incorrect.

The petitioner, Melquiades Lagandaon, prevailed because the court found that the BIA's interpretation of the statute was incorrect.

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