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Notice of Removal's Content Is Dispositive in Immigration Case

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By Jonathan R. Tung, Esq. on November 10, 2015 6:00 AM

The Third Circuit really split hairs when it ruled that the content and justification of a Notice of Removal would determine whether or not an alien should be deported or not.

Narinder Singh petitioned the Board of Immigration Appeals to review his case. He moved the BIA to dismiss an order by his Immigration Judge that he should be removed and that he also was ineligible for removal of that order under U.S.C. sec. 1229(b)a because he was not continuously in the USA for seven years. Then the facts get nit-picky ...

The Story Abridged

Narinder Singh entered into the USA in 1994 and began his lawful permanent residence then. In 2000, he was charged and convicted on a variety of different crimes including conspiracy to commit fraud, the commission of fraud, counterfeiting, doctoring, selling, forging visa documents. In a word, all crimes of moral turpitude.

He later left the United States and re-entered in January 20, 2003. Six years later, in October 2009, he applied for admission to the US as a lawful permanent resident. Instead, Immigration and Customs Enforcement fell on him and took him into custody January 10, 2010. On January 19, 2010, he was served with a Notice of Removal, denying his admission, charging him as an inadmissible arriving alien because of his 2000 crimes of "moral turpitude."

And if you're wondering if all of these dates are necessary, yes they are.

Hearing

Singh later appeared with counsel before the Immigration Court in New Jersey. He acknowledged service of the Notice, acknowledged that the sole reasons for his Removal Notification were his 2000 convictions, sought a removal of the order, and said "I'm not looking for any other relief." The Immigration Judge decided that under USC sec. 1229(b)a, Singh had not stayed in the states for the requisite seven years. When the BIA affirmed the Immigration Judge, Singh appealed.

Circuit Court

The sole determination that needed to be settled was whether or not the time Singh spent in the United States from January 20, 2003 to January 19, 2010 satisfied the 7 year continuous residence requirement of 8 USC sec. 1229(b)a. Notice how the dates are short of each other by one day.

It turns out that this single day isn't determinative one would think. Under the language of 1229, the time of residency actually permanently stopped under the statutes "stop-time rule" triggered when the "alien has committed an offense...that renders the alien inadmissible....or removable...whichever comes first." Singh relied on a Third Circuit case, Okeke v. Gonzales, in which the clock was actually reset even after a clock-stopping crime of possession of controlled substance.

Unfortunately for him, the Circuit Court was ready for him. Okeke was nothing like his current case, it said. Why? Essentially, because the Notice in Okeke made no mention of the reason why the petitioner was being deported.

In a 2012 case, Nelson v. Attorney General, the 3rd Circuit noted that under similar facts, the plaintiff in that case was given notice of why he was being asked to leave the country right in the Notice of Removal itself. Because notice was given to the alien of the reason his clock had stopped, removal of the cancellation did not apply. In other words, Singh's clock stopped as soon as the hammer fell the day he was convicted of his crimes in 2000 -- never to be restarted again. All because ICE actually typed in why they wanted him out of the country.

Grand Takeaways

What this basically means is that if a typist or bureaucrat fails to include the reasoning justifying your Notice of Removal, you've essentially had your clock reset despite crimes that would justify your deportation. Unfortunately for Singh, it looks like the ICE didn't make that mistake this time.

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