The Pereira decision is significant to many non-citizens who received notices like Pereira’s. The clock continued to run on their physical presence in the U.S. after they received notices without dates, which will potentially enable them to qualify for relief from removal that would have been unavailable had the continuous-physical-presence clock stopped upon their receipt of the dateless notices. Many immigrants, including some of those who already have been removed, can attempt to reopen their cases if they were erroneously determined to be statutorily ineligible for cancellation because of insufficient continuous physical presence at the time of the dateless notice.
The majority decision, and more pointedly, Justice Anthony Kennedy’s concurrence, stresses the need for courts to engage in their own, independent appraisals of statutory text before capitulating to an agency’s conclusion that a statute is ambiguous. The justices do not back away from the principle articulated in 1984 in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. that courts should defer to an agency’s legitimate interpretation of an ambiguous statute. But the justices in the majority are clear that Chevron deference does not come into play unless there is, in fact, statutory ambiguity. On the question presented in this case, Justice Sonia Sotomayor, writing for the majority, finds that “the Court need not resort to Chevron deference, as some lower courts have done, for Congress has supplied a clear and unambiguous answer to the interpretive question at hand.”
Justice Anthony Kennedy’s concurring opinion derides the “cursory analysis” of lower courts who bowed to the Board of Immigration Appeals’ statutory interpretation by declaring in as little as a single sentence that the statute was ambiguous and thus that they need not do their job and actually judge the cases.
“This analysis,” Kennedy writes, “suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.” Chevron now results in “reflexive deference” that is “troubling.” And so he believes, following at least three colleagues, that “it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how the courts have implemented that decision.” That’s a big deal — regardless of how long Kennedy himself stays on the court — but in light of Justice Samuel Alito’s solo dissent (which rests firmly on Chevron, without questioning that doctrine’s scope), it might take more than one change in personnel to change the law on Chevron deference.
UPDATE on jurisdiction from BIA: BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018) ID 3935 (PDF) A notice to appear that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), so long as a notice of hearing specifying this information is later sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
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Wescley Fonseca Pereira entered the United States in June 2000 as a non-immigrant visitor authorized to stay until December 21, 2000. Pereira overstayed his visa, and in May 2006, the Department of Homeland Security (DHS) personally served him with a notice to appear for a removal hearing. The notice did not specify the date and time of his initial removal hearing, but instead ordered him to appear before an immigration judge “on a date to be set at a time to be set.” When the immigration court set a date and time, it mailed Pereira a notice with such information. However, the notice was sent to Pereira’s street address on Martha’s Vineyard rather than his post office box, so Pereira never received it. When Pereira did not appear for his removal hearing, an immigration judge ordered him removed in absentia.
Pereira was not removed and instead remained in the country. In March 2013, he was arrested for a motor vehicle violation and detained by DHS. Through his attorney, Pereira filed a motion to reopen his removal proceedings, claiming he had never received the hearing notice with the time and place. Although Pereira conceded that he could be removed, he sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b(b)(1), a provision that gives the attorney general discretion to cancel the removal of a non-permanent resident alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. This continuous period ends “when the alien is served a notice to appear under section 1229(a)” of the Immigration and Nationality Act (INA). Pereira contends that because he did not receive notice of the time and place of his removal hearing, his presence in the country was continuous and over ten years under the statute.
The Board of Immigration Appeals (BIA) has held that a notice to appear that does not contain the date and time of the hearing is nonetheless effective to end the period of continuous physical presence. However, Pereira challenges this reading of the statute. The First Circuit determined that the relevant provisions of the INA are ambiguous as to whether notice must include the date and time of the hearing to be effective, but the court found that the BIA’s interpretation of the statute was reasonable and thus subject to Chevron deference.
Question Must a notice to appear for a removal hearing specify the place and time of the hearing to effectively trigger the stop-time rule of 8 U.S.C. § 1229b(b)(1), contrary to the holding of the Board of Immigration Appeals?
Holding: A notice to appear that does not include the specific time and place of the noncitizen’s removal proceedings does not trigger the stop-time rule under §1229(a) of the INA. A putative notice sent to a nonpermanent resident to appear at a removal proceeding that fails to designate a specific time or place for that proceeding does not end the continuous residence period calculation necessary for possible cancellation of the individual’s removal. A notice to appear for a removal hearing that does not specify the time and place of the hearing does not trigger the stop-time rule. In an 8-1 decision authored by Justice Sonia Sotomayor, the Court reasoned that a “notice to appear” that does not include with specificity both “when” and “where” cannot reasonably be expected to result in a person appearing at their hearing. The Court looked to the text of the statute, which provides that the continuous period in question ends “when the alien is served with notice to appear,” and “notice to appear” is defined throughout the section as “a written notice . . . specifying . . . “the time and place at which the proceedings will be held.” The text of the statute is thus unambiguous, so Chevron deference to the interpretation by the Board of Immigration Appeals (BIA) is unnecessary. This requirement of a “notice to appear” is also consistent with congressional intent.
Judgment: Reversed and remanded, 8-1, in an opinion by Justice Sotomayor on June 21, 2018.
Justice Anthony Kennedy filed a concurring opinion to note his concern over the way courts apply Chevron deference.
Justice Samuel Alito filed a dissenting opinion, arguing that the language of the statute is ambiguous and thus that the BIA’s interpretation is entitled to Chevron deference.
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Nonpermanent residents who are subject to removal proceedings and have accrued 10 years of continuous physical presence in the United States, may be eligible for a form of discretionary relief known as cancellation of removal. 8 U.S.C.S. § 1229b(b)(1). Under the so-called stop-time rule set forth in § 1229b(d)(1)(A), however, that period of continuous physical presence is deemed to end when the alien is served a notice to appear under 8 U.S.C.S. § 1229(a). Section 1229(a), in turn, provides that the government shall serve noncitizens in removal proceedings with written notice (in this section referred to as a notice to appear) specifying several required pieces of information, including the time and place at which the removal proceedings will be held. 8 U.S.C.S. § 1229(a)(1)(G)(i).
If the government serves a noncitizen with a document that is labeled notice to appear, but the document fails to specify either the time or place of the removal proceedings, it does not trigger the stop-time rule for determining eligibility for cancellation of removal. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a notice to appear under 8 U.S.C.S. § 1229(a)and therefore does not trigger the stop-time rule.
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Attorney General of the United States has discretion to cancel removal and adjust the status of certain nonpermanent residents. 8 U.S.C.S. § 1229b(b). To be eligible for such relief, a nonpermanent resident must meet certain enumerated criteria, including that the noncitizen must have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of an application for cancellation of removal.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 enables the Government to change or postpone the time and place of removal proceedings. 8 U.S.C.S. § 1229(a)(2)(A). To do so, the government must give the noncitizen a written notice specifying the new time or place of the proceedings and the consequences of failing, except under exceptional circumstances, to attend such proceedings. The government is not required to provide written notice of the change in time or place of the proceedings if the noncitizen is not in detention and has failed to provide his address to the government.
The consequences of a noncitizen’s failure to appear at a removal proceeding can be quite severe. If a noncitizen who has been properly served with the written notice required under 8 U.S.C.S. § 1229(a)(1) or (2) fails to appear at a removal proceeding, he shall be ordered removed in absentia if the government establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable. 8 U.S.C.S. § 1229a(b)(5)(A). Absent exceptional circumstances, a noncitizen subject to an in absentia removal order is ineligible for some forms of discretionary relief for 10 years if, at the time of the notice described in § 1229(a)(1) or (2), he was provided oral notice of the time and place of the proceedings and of the consequences of failing to appear. 8 U.S.C.S. § 1229a(b)(7). In certain limited circumstances, however, a removal order entered in absentia may be rescinded, e.g., when the noncitizen demonstrates that he did not receive notice in accordance with § 1229(a)(1) or (2). 8 U.S.C.S. § 1229a(b)(5)(C)(ii).
A court need not resort to Chevron deference if Congress has supplied a clear and unambiguous answer to the interpretive question at hand. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.
Under the stop-time rule for determining eligibility for cancellation of removal, any period of continuous physical presence is deemed to end when an alien is served a notice to appear under 8 U.S.C.S. § 1229(a). 8 U.S.C.S. § 1229b(d)(1). By expressly referencing § 1229(a), the statute specifies where to look to find out what notice to appear means. Section 1229(a), in turn, clarifies that the type of notice referred to as a notice to appear throughout the statutory section is a written notice specifying the time and place at which the removal proceedings will be held. 8 U.S.C.S. § 1229(a)(1)(G)(i). Thus, based on the plain text of the statute, it is clear that to trigger the stop-time rule, the government must serve a notice to appear that, at the very least, specifies the time and place of the removal proceedings.
It is true that the stop-time rule for determining eligibility for cancellation of removal makes broad reference to a notice to appear under 8 U.S.C.S. § 1229(a), which includes 8 U.S.C.S. § 1229(a)(1), as well as 8 U.S.C.S. § 1229(a)(2) and (3). But the broad reference to § 1229(a) is of no consequence, because only § 1229(a)(1) bears on the meaning of a notice to appear. By contrast, § 1229(a)(2) governs the notice of change in time or place of proceedings, and § 1229(a)(3) provides for a system to record noncitizens’ addresses and phone numbers. Nowhere else within § 1229(a) does the statute purport to delineate the requirements of a notice to appear. In fact, the term notice to appear appears only in § 1229(a)(1).
8 U.S.C.S. § 1229(a)(2) provides that, in the case of any change or postponement in the time and place of removal proceedings, the Government shall give the noncitizen written notice specifying the new time or place of the proceedings. 8 U.S.C.S. § 1229(a)(2)(A)(i). By allowing for a change or postponement of the proceedings to a new time or place, § 1229(a)(2) presumes that the government has already served a notice to appear under 8 U.S.C.S. § 1229(a) that specified a time and place as required by 8 U.S.C.S. § 1229(a)(1)(G)(i). Otherwise, there would be no time or place to change or postpone. Section 1229(a)(2) confirms that a notice to appear must state the time and place of the removal proceeding as required by 8 U.S.C.S. § 1229(a)(1). Section 1229(a)(2) clearly reinforces the conclusion that a notice to appear under § 1229(a), 8 U.S.C.S. § 1229b(d)(1), must include at least the time and place of the removal proceedings to trigger the stop-time rule for determining eligibility for cancellation of removal.
8 U.S.C.S. § 1229(b)(1) gives a noncitizen the opportunity to secure counsel before the first removal hearing date by mandating that such hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear. For § 1229(b)(1) to have any meaning, the notice to appear must specify the time and place that the noncitizen, and his counsel, must appear at the removal hearing. Otherwise, the government could serve a document labeled notice to appear without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available. Under that view of the statute, a noncitizen theoretically would have had the opportunity to secure counsel, but that opportunity will not be meaningful if, given the absence of a specified time and place, the noncitizen has minimal time and incentive to plan accordingly, and his counsel, in turn, receives limited notice and time to prepare adequately. It therefore follows that, if a notice to appear for purposes of § 1229(b)(1) must include the time-and-place information, a notice to appear for purposes of the stop-time rule for determining eligibility for cancellation of removal under 8 U.S.C.S. § 1229b(d)(1) must as well.
Common sense compels the conclusion that a notice that does not specify when and where to appear for a removal proceeding is not a notice to appear that triggers the stop-time rule for determining eligibility for cancellation of removal. If the three words notice to appear mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens notice of the information, i.e., the time and place, that would enable them to appear at the removal hearing in the first place. Conveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceedings. To hold otherwise would empower the government to trigger the stop-time rule merely by sending noncitizens a barebones document labeled notice to appear, with no mention of the time and place of the removal proceedings, even though such documents would do little if anything to facilitate appearance at those proceedings. The United States Supreme Court is not willing to impute to Congress such a contradictory and absurd purpose, particularly where doing so has no basis in the statutory text.
Even if a notice to appear under 8 U.S.C.S. § 1229(a) functions as a charging document, that is not mutually exclusive with the conclusion that a notice to appear serves another equally integral function: telling a noncitizen when and where to appear.
8 U.S.C.S. § 1229(a) speaks in definitional terms, at least with respect to the time and place at which the proceedings will be held: It specifically provides that the notice described under 8 U.S.C.S. § 1229(a)(1) is referred to as a notice to appear, which in context is quintessential definitional language. It then defines that term as a written notice that specifies the time and place at which the removal proceedings will be held. 8 U.S.C.S. § 1229(a)(1)(G)(i). Thus, when the term notice to appear is used elsewhere in the statutory section, including as the trigger for the stop-time rule for determining eligibility for cancellation of removal, it carries with it the substantive time-and-place criteria required by § 1229(a).
8 U.S.C.S. § 1229(a)(1) does not say a notice to appear is complete when it specifies the time and place of the removal proceedings. Rather, it defines a notice to appear as a written notice that specifies, at a minimum, the time and place of the removal proceedings. 8 U.S.C.S. § 1229(a)(1)(G)(i). Moreover, the omission of time-and-place information is not some trivial, ministerial defect, akin to an unsigned notice of appeal. Failing to specify integral information like the time and place of removal proceedings unquestionably would deprive the notice to appear of its essential character.
The word under is a chameleon that must draw its meaning from its context. Based on the plain language and statutory context, it is obvious that the word under, as used in the stop-time rule for determining eligibility for cancellation of removal, can only mean in accordance with or according to, for it connects the stop-time trigger in 8 U.S.C.S. § 1229b(d)(1) to a notice to appear that contains the enumerated time-and-place information described in 8 U.S.C.S. § 1229(a)(1)(G)(i). Under has been defined as in accordance with; as according to. So construed, the stop-time rule applies only if the Government serves a notice to appear in accordance with or according to the substantive time-and-place requirements set forth in 8 U.S.C.S. § 1229(a). Far from generating any degree of ambiguity, the word under provides the glue that bonds the stop-time rule to the substantive time-and-place requirements mandated by § 1229(a).
8 U.S.C.S. § 1229(a)(2) expressly vests the government with power to change the time or place of a noncitizen’s removal proceedings so long as it provides written notice specifying the new time or place of the proceedings and the consequences of failing to appear. § 1229(a)(2). The government’s ability to exercise that statutory authority after it has served a notice to appear specifying the time and place of the removal proceedings is not inhibited.
OUTLINE
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), nonpermanent residents who are subject to removal proceedings may be eligible for cancellation of removal if, among other things, they have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application” for cancellation. 8 U.S.C. §1229(b)(1)(A). Under the stop-time rule, however, the period of continuous presence is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” §1229(d)(1)(A). Section 1229(a), in turn, provides that the Government shall serve noncitizens in removal proceedings with a written “‘notice to appear,’” specifying, among other things, “[t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i). Per a 1997 regulation stating that a “notice to appear” served on a noncitizen need only provide “the time, place and date of the initial removal hearing, where practicable,” 62 Fed. Reg. 10332, the Department of Homeland Security (DHS), at least in recent years, almost always serves noncitizens with notices that fail to specify the time, place, or date of initial removal hearings whenever the agency deems it impracticable to include such information. The Board of Immigration Appeals (BIA) has held that such notices trigger the stop-time rule even if they do not specify the time and date of the removal proceedings.
Petitioner Wescley Fonseca Pereira is a native and citizen of Brazil who came to the United States in 2000 and remained after his visa expired. Following a 2006 arrest for operating a vehicle while under the influence of alcohol, DHS served Pereira with a document titled “notice to appear” that did not specify the date and time of his initial removal hearing, instead ordering him to appear at a time and date to be set in the future. More than a year later, in 2007, the Immigration Court mailed Pereira a more specific notice setting the date and time for his initial hearing, but the notice was sent to the wrong address and was returned as undeliverable. As a result, Pereira failed to appear, and the Immigration Court ordered him removed in absentia.
In 2013, Pereira was arrested for a minor motor vehicle violation and detained by DHS. The Immigration Court reopened the removal proceedings after Pereira demonstrated that he never received the 2007 notice. Pereira then applied for cancellation of removal, arguing that he had been continuously present in the United States for more than 10 years and that the stop-time rule was not triggered by DHS’ initial 2006 notice because the document lacked information about the time and date of his removal hearing. The Immigration Court disagreed and ordered Pereira removed. The BIA agreed with the Immigration Court that the 2006 notice triggered the stop-time rule, even though it failed to specify the time and date of Pereira’s initial removal hearing. The Court of Appeals for the First Circuit denied Pereira’s petition for review of the BIA’s order. Applying the framework set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694, it held that the stop-time rule is ambiguous and that the BIA’s interpretation of the rule was a permissible reading of the statute.
Held: A putative notice to appear that fails to designate the specific time or place of a noncitizen’s removal proceedings is not a notice to appear under 8 U.S.C.S. § 1229(a), and so does not trigger the stop-time rule under 8 U.S.C.S. § 1229b(d)(1)(A) for determining eligibility for cancellation of removal. Based on the plain text of the statute, it is clear that to trigger the stop-time rule, the government must serve a notice to appear that, at the very least, specifies the time and place of the removal proceedings. Pp. 7-20.
(a) The Court need not resort to Chevron deference, for the unambiguous statutory text alone is enough to resolve this case. Under the stop-time rule, “any period of . . . continuous physical presence” is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” 8 U. S. C. §1229b(d)(1). By expressly referencing §1229(a), the statute specifies where to look to find out what “notice to appear” means. Section 1229(a), in turn, clarifies that the type of notice “referred to as a ‘notice to appear’” throughout the statutory section is a “written notice . . . specifying,” as relevant here, “[t]he time and place at which the [removal] proceedings will be held.” §1229(a)(1)(G)(i). Thus, to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, “specif[ies]” the “time and place” of the removal hearing.
The Government and dissent point out that the stop-time rule refers broadly to a notice to appear under “§1229(a)”—which includes paragraph (1), as well as paragraphs (2) and (3). But that does not matter, because only paragraph (1) bears on the meaning of a “notice to appear.” If anything, paragraph (2), which allows for a “change or postponement” of the proceedings to a “new time and place,” §1229(a)(2)(A)(i), bolsters the Court’s interpretation of the statute because the provision presumes that the Government has already served a “notice to appear” that specified a time and place as required by §1229(a)(1)(G)(i). Another neighboring provision, §1229(b)(1), lends further support for the view that a “notice to appear” must specify the time and place of removal proceedings to trigger the stop-time rule. Section 1229(b)(1) gives a noncitizen “the opportunity to secure counsel before the first [removal] hearing date” by mandating that such “hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear.” For that provision to have any meaning, the “notice to appear” must specify the time and place that the noncitizen, and his counsel, must appear at the removal proceedings. Finally, common sense reinforces the conclusion that a notice that does not specify when and where to appear for a removal proceeding is not a “notice to appear” that triggers the stop-time rule. After all, an essential function of a “notice to appear” is to provide noncitizens “notice” of the information (i.e., the “time” and “place”) that would enable them “to appear” at the removal hearing in the first place. Without conveying such information, the Government cannot reasonably expect noncitizens to appear for their removal proceedings. Pp. 7-13.
(b) The Government and the dissent advance a litany of counterarguments, all of which are unpersuasive. To begin, the Government mistakenly argues that §1229(a) is not definitional. That is wrong. Section 1229(a) speaks in definitional terms, requiring that a notice to appear specify, among other things, the “time and place at which the proceedings will be held.” As such, the dissent is misguided in arguing that a defective notice to appear, which fails to specify time-and-place information, is still a notice to appear for purposes of the stop-time rule. Equally unavailing is the Government’s (and the dissent’s) attempt to generate ambiguity in the statute based on the word “under.” In light of the plain language and statutory context, the word “under,” as used in the stop-time rule, clearly means “in accordance with” or “according to” because it connects the stop-time trigger in §1229b(d)(1) to a “notice to appear” that specifies the enumerated time-and-place information. The Government fares no better in arguing that surrounding statutory provisions reinforce its preferred reading of the stop-time rule, as none of those provisions supports its atextual interpretation. Unable to root its reading in the statutory text, the Government and dissent raise a number of practical concerns, but those concerns re meritless and do not justify departing from the statute’s clear text. In a final attempt to salvage its atextual interpretation, the Government turns to the alleged statutory purpose and legislative history of the stop-time rule. Even for those who consider statutory purpose and legislative history, however, neither supports the Government’s position. Requiring the Government to furnish time-and-place information in a notice to appear is entirely consistent with Congress’ stated objective of preventing noncitizens from exploiting administrative delays to accumulate lengthier periods of continuous precedent. Pp. 13-20. 866 F.3d 1, reversed and remanded.
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§ 1229b. Cancellation of removal; adjustment of status
(a) Cancellation of removal for certain permanent residents. The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien–
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
(b) Cancellation of removal and adjustment of status for certain nonpermanent residents.
(1) In general. 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 212(a)(2), 237(a)(2), or 237(a)(3) [8 USCS § 1182(a)(2), 1227(a)(2), or 1227(a)(3)], subject to paragraph (5); 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 admitted for permanent residence.
(2) Special rule for battered spouse or child.
(A) Authority. 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 demonstrates that–
(i)
(I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent);
(II) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of an alien who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent); or
(III) the alien has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen’s or lawful permanent resident’s bigamy;
(ii) the alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date of such application, and the issuance of a charging document for removal proceedings shall not toll the 3-year period of continuous physical presence in the United States;
(iii) the alien has been a person of good moral character during such period, subject to the provisions of subparagraph (C);
(iv) the alien is not inadmissible under paragraph (2) or (3) of section 212(a) [8 USCS § 1182(a)], is not deportable under paragraphs (1)(G) or (2) through (4) of section 237(a) [8 USCS § 1227(a)], subject to paragraph (5), and has not been convicted of an aggravated felony; and
(v) the removal would result in extreme hardship to the alien, the alien’s child, or the alien’s parent.
(B) Physical presence. Notwithstanding subsection (d)(2), for purposes of subparagraph (A)(ii) or for purposes of section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]), an alien shall not be considered to have failed to maintain continuous physical presence by reason of an absence if the alien demonstrates a connection between the absence and the battering or extreme cruelty perpetrated against the alien. No absence or portion of an absence connected to the battering or extreme cruelty shall count toward the 90-day or 180-day limits established in subsection (d)(2). If any absence or aggregate absences exceed 180 days, the absences or portions of the absences will not be considered to break the period of continuous presence. Any such period of time excluded from the 180-day limit shall be excluded in computing the time during which the alien has been physically present for purposes of the 3-year requirement set forth in this subparagraph, subparagraph (A)(ii), and section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]).
(C) Good moral character. Notwithstanding section 101(f) [8 USCS § 1101(f)], an act or conviction that does not bar the Attorney General from granting relief under this paragraph by reason of subparagraph (A)(iv) shall not bar the Attorney General from finding the alien to be of good moral character under subparagraph (A)(iii) or section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]), if the Attorney General finds that the act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty and determines that a waiver is otherwise warranted.
(D) Credible evidence considered. In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.
(3) Recordation of date. With respect to aliens who the Attorney General adjusts to the status of an alien lawfully admitted for permanent residence under paragraph (1) or (2), the Attorney General shall record the alien’s lawful admission for permanent residence as of the date of the Attorney General’s cancellation of removal under paragraph (1) or (2).
(4) Children of battered aliens and parents of battered alien children.
(A) In general. The Attorney General shall grant parole under section 212(d)(5) [8 USCS § 1182(d)(5)] to any alien who is a–
(i) child of an alien granted relief under section 240A(b)(2) [subsec. (b)(2) of this section] or 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]); or
(ii) parent of a child alien granted relief under section 240A(b)(2) [subsec. (b)(2) of this section] or 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]).
(B) Duration of parole. The grant of parole shall extend from the time of the grant of relief under section 240A(b)(2) [subsec. (b)(2) of this section] or section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]) to the time the application for adjustment of status filed by aliens covered under this paragraph has been finally adjudicated. Applications for adjustment of status filed by aliens covered under this paragraph shall be treated as if they were VAWA self-petitioners. Failure by the alien granted relief under section 240A(b)(2) [subsec. (b)(2) of this section] or section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note]) to exercise due diligence in filing a visa petition on behalf of an alien described in clause (i) or (ii) may result in revocation of parole.
(5) Application of domestic violence waiver authority. The authority provided under section 237(a)(7) [8 USCS § 1227(a)(7)] may apply under paragraphs (1)(B), (1)(C), and (2)(A)(iv) in a cancellation of removal and adjustment of status proceeding.
(6) Relatives of trafficking victims.
(A) In general. Upon written request by a law enforcement official, the Secretary of Homeland Security may parole under section 212(d)(5) [8 USCS § 1182(d)(5)] any alien who is a relative of an alien granted continued presence under section 107(c)(3)(A) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)(A)), if the relative–
(i) was, on the date on which law enforcement applied for such continued presence–
(I) in the case of an alien granted continued presence who is under 21 years of age, the spouse, child, parent, or unmarried sibling under 18 years of age, of the alien; or
(II) in the case of an alien granted continued presence who is 21 years of age or older, the spouse or child of the alien; or
(ii) is a parent or sibling of the alien who the requesting law enforcement official, in consultation with the Secretary of Homeland Security, as appropriate, determines to be in present danger of retaliation as a result of the alien’s escape from the severe form of trafficking or cooperation with law enforcement, irrespective of age.
(B) Duration of parole.
(i) In general. The Secretary may extend the parole granted under subparagraph (A) until the final adjudication of the application filed by the principal alien under section 101(a)(15)(T)(ii) [8 USCS § 1101(a)(15)(T)(ii)].
(ii) Other limits on duration. If an application described in clause (i) is not filed, the parole granted under subparagraph (A) may extend until the later of–
(I) the date on which the principal alien’s authority to remain in the United States under section 107(c)(3)(A) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)(A)) is terminated; or
(II) the date on which a civil action filed by the principal alien under section 1595 of title 18, United States Code, is concluded.
(iii) Due diligence. Failure by the principal alien to exercise due diligence in filing a visa petition on behalf of an alien described in clause (i) or (ii) of subparagraph (A), or in pursuing the civil action described in clause (ii)(II) (as determined by the Secretary of Homeland Security in consultation with the Attorney General), may result in revocation of parole.
(C) Other limitations. A relative may not be granted parole under this paragraph if–
(i) the Secretary of Homeland Security or the Attorney General has reason to believe that the relative was knowingly complicit in the trafficking of an alien permitted to remain in the United States under section 107(c)(3)(A) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)(A)); or
(ii) the relative is an alien described in paragraph (2) or (3) of section 212(a) [8 USCS § 1182(a)] or paragraph (2) or (4) of section 237(a) [8 USCS § 1227(a)].
(c) Aliens ineligible for relief. The provisions of subsections (a) and (b)(1) shall not apply to any of the following aliens:
(1) An alien who entered the United States as a crewman subsequent to June 30, 1964.
(2) An alien who was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) [8 USCS § 1101(a)(15)(J)], or has acquired the status of such a nonimmigrant exchange alien after admission, in order to receive graduate medical education or training, regardless of whether or not the alien is subject to or has fulfilled the two-year foreign residence requirement of section 212(e) [8 USCS § 1182(e)].
(3) An alien who–
(A) was admitted to the United States as a nonimmigrant exchange alien as defined in section 101(a)(15)(J) [8 USCS § 1101(a)(15)(J)] or has acquired the status of such a nonimmigrant exchange alien after admission other than to receive graduate medical education or training,
(B) is subject to the two-year foreign residence requirement of section 212(e) [8 USCS § 1182(e)], and
(C) has not fulfilled that requirement or received a waiver thereof.
(4) An alien who is inadmissible under section 212(a)(3) [8 USCS § 1182(a)(3)] or deportable under section 237(a)(4) [8 USCS § 1227(a)(4)].
(5) An alien who is described in section 241(b)(3)(B)(i) [8 USCS § 1251(b)(3)(B)(i)].
(6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 244(a) [former 8 USCS § 1254(a)] or who has been granted relief under section 212(c) [former 8 USCS § 1182(c)], as such sections were in effect before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [enacted Sept. 30, 1996].
(d) Special rules relating to continuous residence or physical presence.
(1) 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) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 239(a) [8 USCS § 1229(a)], or (B) when the alien has committed an offense referred to in section 212(a)(2) [8 USCS § 1182(a)(2)] that renders the alien inadmissible to the United States under section 212(a)(2) [8 USCS § 1182(a)(2)] or removable from the United States under section 237(a)(2) or 237(a)(4) [8 USCS § 1227(a)(2) or 1227(a)(4)], whichever is earliest.
(2) Treatment of certain breaks in presence. An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
(3) Continuity not required because of honorable service in armed forces and presence upon entry into service. The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) shall not apply to an alien who–
(A) has served for a minimum period of 24 months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and
(B) at the time of the alien’s enlistment or induction was in the United States.
(e) Annual limitation.
(1) Aggregate limitation. Subject to paragraphs (2) and (3), the Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under section 244(a) [former 8 USCS § 1254(a)] (as in effect before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [enacted Sept. 30, 1996]), of a total of more than 4,000 aliens in any fiscal year. The previous sentence shall apply regardless of when an alien applied for such cancellation and adjustment, or such suspension and adjustment, and whether such an alien had previously applied for suspension of deportation under such section 244(a) [8 USCS § 1254(a)]. The numerical limitation under this paragraph shall apply to the aggregate number of decisions in any fiscal year to cancel the removal (and adjust the status) of an alien, or suspend the deportation (and adjust the status) of an alien, under this section or such section 244(a) [8 USCS § 1254(a)].
(2) Fiscal year 1997. For fiscal year 1997, paragraph (1) shall only apply to decisions to cancel the removal of an alien, or suspend the deportation of an alien, made after April 1, 1997. Notwithstanding any other provision of law, the Attorney General may cancel the removal or suspend the deportation, in addition to the normal allotment for fiscal year 1998, of a number of aliens equal to 4,000 less the number of such cancellations of removal and suspensions of deportation granted in fiscal year 1997 after April 1, 1997.
(3) Exception for certain aliens. Paragraph (1) shall not apply to the following:
(A) Aliens described in section 309(c)(5)(C)(i) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [8 USCS § 1101 note] (as amended by the Nicaraguan Adjustment and Central American Relief Act).
(B) Aliens in deportation proceedings prior to April 1, 1997, who applied for suspension of deportation under section 244(a)(3) [former 8 USCS § 1254(a)(3)] (as in effect before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [enacted Sept. 30, 1996]).
