PEREZ

Interim Decision #3389

In re Cristobal PEREZ, Respondent

File A91 875 147 - Huntsville

Decided May 12, 1999

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1229b(d)(1) (Supp. II 1996), continuous residence or physical presence for cancellation of
removal purposes is deemed to end on the date that a qualifying offense has been committed.

(2) The period of continuous residence required for relief under section 240A(a) com-
mences when the alien has been admitted in any status, which includes admission as a tem-
porary resident.

(3) An offense described in section 240A(d)(1) is deemed to end continuous residence or
physical presence for cancellation of removal purposes as of the date of its commission,
even if the offense was committed prior to the enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546.

Isaias D. Torres, Esquire, Houston, Texas, for respondent

John W. McPhail, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,
HURWITZ, FILPPU, COLE, MATHON, JONES, GRANT, and SCIALABBA,
Board Members. Dissenting Opinion: GUENDELSBERGER, Board Member,
joined by SCHMIDT, Chairman; VILLAGELIU and ROSENBERG, Board
Members.

FILPPU, Board Member:

We have jurisdiction over this timely appeal pursuant to 8 C.F.R. §
3.1(b) (1999). The respondent has appealed the Immigration Judge’s
October 29, 1997, oral decision finding that he is removable on the basis of
his conviction for a controlled substance violation pursuant to section
237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §
1227(a)(2)(B)(i) (Supp. II 1996), and pretermitting his application for can-
cellation of removal pursuant to section 240A(a) of the Act, 8 U.S.C. §

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1229b(a) (Supp. II 1996). Removability is not an issue on appeal. The
respondent contends that the Immigration Judge erred in finding him statu-
torily ineligible to apply for cancellation of removal on the ground that the
required period of continuous residence was terminated when he commit-
ted the controlled substance offense. Our review is de novo with regard to
the issue on appeal. Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The
appeal will be dismissed.

I. ISSUE PRESENTED

The issue in this case is whether the “stop-time” rule of section
240A(d)(1) of the Act operates to terminate the period of continuous resi-
dence required for cancellation of removal under section 240A(a) as of the
date that the respondent committed his offense.

II. FACTUAL BACKGROUND

In removal proceedings commenced on September 26, 1997, the
respondent admitted, through his counsel, each of the factual allegations in
the Notice to Appear (Form I-862). Specifically, the respondent stated that
he is a native and citizen of El Salvador, that he was first admitted as a tem-
porary resident on September 21, 1989, and that his status was subsequent-
ly adjusted to that of a lawful permanent resident on December 7, 1990. The
respondent further admitted that he was convicted on July 11, 1997, in the
184th District Court of Harris County, Texas, of possession of cocaine, and
that this offense was committed on or about August 4, 1992.1 The respon-
dent conceded that he was removable as charged under section
237(a)(2)(B)(i) of the Act on the basis of this conviction.

III. THE RESPONDENT’S RETROACTIVITY ARGUMENT

The respondent’s position on appeal is that the presumption against the
retroactive effect of statutes stated by the Supreme Court in Landgraf v. USI
Film Products, 511 U.S. 244 (1994), is applicable in this case. The respon-

1
We note that the dates provided by the Immigration and Naturalization Service in its
brief on appeal for each of these events are inexplicably inconsistent with those alleged by the
Service on the continuation page (Form I-831) to the Notice to Appear (Form I-862). For the
purposes of this decision, we have used the dates alleged on the Form I-831, which were
admitted to by the respondent at his October 29, 1997, hearing.

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dent contends that, because he committed his drug offense prior to the pas-
sage of section 240A of the Act, that section’s rules limiting eligibility for
relief from removal should not be applied to him. See Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L.
No. 104-208, § 304(a)(3), 110 Stat. 3009-546, 3009-595 (“IIRIRA”) (cod-
ified at 8 U.S.C. § 1229b).
We first note that the relief of cancellation of removal is both discre-
tionary and prospective in nature. Section 240A of the Act therefore does
not impair a substantive right to relief that was in place prior to its enact-
ment. When assessing statutory eligibility or discretionary merit for a grant
of cancellation of removal, we must necessarily look at a variety of
antecedent events, including events that are both favorable and unfavorable
to the alien. An alien’s past criminal conduct may well impact on the oper-
ation of the statute. But it does so only to the extent of defining the Attorney
General’s present authority to grant discretionary relief to removable aliens,
or of informing as to the exercise of discretion. We therefore do not find that
applying section 240A would have an impermissible “retroactive effect” as
contemplated in Landgraf.
In any event, where Congress has expressly prescribed the reach of the
new legislation, there is no need to resort to the judicial default rules set
forth in Landgraf. We find that Congress has provided specific direction on
the scope of applicability of the section 240A rules governing the relief of
cancellation of removal. The effective date provisions of the legislation
implementing the new procedures provide, with certain exceptions not
applicable here, that section 240A applies to aliens unless they are current-
ly in deportation or exclusion proceedings. See IIRIRA §§ 304(c)(2), 110
Stat. at 3009-597; 309(c)(1), 110 Stat. at 3009-625. The respondent is not
in deportation or exclusion proceedings. He is in removal proceedings com-
menced after the April 1, 1997, effective date that the IIRIRA established
for such proceedings. Consequently, the section 240A rules apply.

IV. THE STATUTORY REQUIREMENTS FOR RELIEF
UNDER SECTION 240A(a)

Since the respondent’s eligibility for relief is controlled by the rules
stated in section 240A of the Act, we must address whether the Immigration
Judge properly applied these rules when he pretermitted the respondent’s
application for section 240A(a) cancellation of removal.
Section 240A(a) provides that a lawful permanent resident may seek
cancellation of removal if the statutory prerequisites for that relief have
been satisfied. The prerequisites for section 240A(a) relief are that the alien
(1) has been an alien lawfully admitted for permanent residence for not less than 5
years,

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(2) has resided in the United States continuously for 7 years after having been admit-
ted in any status, and
(3) has not been convicted of any aggravated felony.

The respondent was admitted for permanent residence on December 7,
1990, and therefore meets the first requirement of the statute.2 We will not
address the question whether the respondent meets the third requirement for
relief because there is no documentary evidence relating to the respondent’s
conviction in the record. Therefore, we confine our inquiry to the remain-
ing issue of whether the Immigration Judge correctly determined that the
respondent had not satisfied the second requirement of 7 years of continu-
ous residence after having been admitted in any status. The respondent com-
mitted his criminal offense before he accrued 7 years of residence.
However, he was convicted of that offense nearly 8 years after his admis-
sion as a temporary resident.

V. UNDER THE NATURAL AND STRAIGHTFORWARD READING
OF SECTION 240A(d)(1), TIME CEASES TO ACCRUE
ON THE DATE AN OFFENSE IS COMMITTED

The commencement of the period of continuous residence is defined in
section 240A(a)(2) of the Act as the date when the respondent has been
“admitted in any status.” For the purpose of triggering the accrual of the 7
years of continuous residence required under section 240A(a)(2), we inter-
pret admission in “any status” to include admission as a temporary resident.
The respondent was first admitted in “any status,” and continuous residence
thus began to accrue, when he was admitted as a temporary resident on
September 21, 1989.
The termination of continuous residence is defined by the special rule
at section 240A(d)(1), which provides as follows:
For purposes of this section, any period of continuous residence or continuous physi-
cal presence in the United States shall be deemed to end when the alien is served a
notice to appear under section 239(a) or when the alien has committed an offense
referred to in section 212(a)(2) that renders the alien inadmissible to the United States
under section 212(a)(2) or removable from the United States under section 237(a)(2)
or 237(a)(4), whichever is earliest. (Emphasis added.)

2
In its brief on appeal, the Service misreads the statute as requiring continuous residence
in the United States for a period of 5 years as a lawful permanent resident prior to the com-
mission of a criminal offense. Section 240A(a)(1), requiring admission for permanent resi-
dence for not less than 5 years, does not state a requirement for continuous residence or phys-
ical presence and therefore does not trigger the application of section 240A(d)(1). The con-
tinuous residence requirement of section 240A(a)(2) is the provision at issue here.

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Applying section 240A(d)(1) of the Act, the Immigration Judge deter-
mined that the respondent’s period of continuous residence ended on
August 4, 1992, the date he committed his offense, and that he consequent-
ly had less than the required 7 years of continuous residence. We find that
the Immigration Judge was correct in applying the commission date as the
date that continuous residence terminated.
The natural and straightforward reading of section 240(A)(d)(1) indi-
cates that continuous residence or physical presence is deemed to end at the
point when the alien “has committed” one of the designated offenses, i.e.,
one that is “referred to in section 212(a)(2) that renders the alien inadmis-
sible to the United States under section 212(a)(2) or removable from the
United States under section 237(a)(2) or 237(a)(4).” Section 240A(d)(1) of
the Act.
The date that criminal misconduct is committed is the critical point in
time when calculating the statutorily required period of time under section
240A(d)(1). The subsequent “renders” clause does not impose a separate
temporal requirement. Rather, it is a restrictive clause which modifies the
word “offense” by limiting and defining the types of offenses which cut off
the accrual of further time as of the date of their commission. Thus, it
implicitly requires that the steps necessary to “render” an alien inadmissi-
ble or removable shall have occurred before the offense qualifies for section
240A(d)(1) purposes. However, the statute does not identify the date that
the final step for inadmissibility or removability occurs as the date that the
further accrual of time terminates. To the contrary, it clearly defines the ter-
minating point to be the time when “the alien has committed [the] offense.”
In the instant case, the respondent was ultimately “rendered”
deportable under section 237(a)(2)(B)(i) by his conviction for an offense
that is referred to in section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. §
1182(a)(2)(A)(i)(II) (1994 & Supp. II 1996). Hence, his conviction placed
his offense within those specified in section 240A(d)(1) for purposes of ter-
minating continuous residence. However, once it was determined that the
offense was one of those qualifying offenses, the statute set the date when
the offense was “committed” as the point in time when his continuous res-
idence ended.
It would strain our reading of section 240A(d)(1) to interpret the statute
as permitting any date to be used for calculating the period of continuous
residence or presence other than the date the offense was committed. In
determining Congress’ intent, we should not read a statute in a tortuous
manner in search of ambiguity when the natural and straightforward read-
ing leads to no anomalous or absurd result.
In any event, to the extent that a strained reading of section 240A(d)(1)
suggests ambiguity when it is read in isolation, we find that it is readily
resolved when interpreted in the context of section 240A as a whole, and by
a common sense reading of the statute. Any possible ambiguity disappears

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by simply recognizing that the word “renders” is implicitly modified by a
single word, such as “subsequently,” or “ultimately,” in those situations
where the commission of the crime does not itself render an alien immedi-
ately removable. Thus, in a case such as the one now before us, time stops
accruing “when the alien has committed an offense that [subsequently] ren-
ders the alien inadmissible . . . or removable.”

VI. SECTION 240A(d)(1) MUST BE INTERPRETED IN THE
CONTEXT OF SECTION 240A AS A WHOLE

Assigning the phrase “has committed” its ordinary and natural mean-
ing gains support when those words are viewed in the context of the struc-
ture of section 240A as a whole. The Supreme Court has noted that if an
ambiguity is perceived when a provision is read in isolation, it is often clar-
ified when it is interpreted in the context of the remainder of the statutory
scheme. Bailey v. United States, 516 U.S. 137, 146 (1995).
Reviewing the text of section 240A as a whole, it is apparent that when
Congress intends a conviction to control eligibility for cancellation of
removal, it has expressly said so. For example, cancellation of removal for
a lawful permanent resident is conditioned on the fact that the alien “has not
been convicted of any aggravated felony.” Section 240A(a)(3) of the Act
(emphasis added). Cancellation of removal for an alien who is not a per-
manent resident also requires that the alien “has not been convicted of an
offense under section 212(a)(2), 237(a)(2), or 237(a)(3).” Section
240A(b)(1)(C) of the Act (emphasis added). Congress again used the word
“convicted” in its special rule for a battered spouse or child, conditioning
relief on a showing that the alien “has not been convicted of an aggravated
felony.” Section 240A(b)(2)(D) of the Act (emphasis added).
It is significant that Congress did not use the word “convicted” in
section 240A(d)(1) of the Act. Rather, it chose the word “committed” for
the rule governing the calculation of continuous residence and physical
presence. Congress used the separate terms “convicted” and “committed”
within section 240A itself, so we must assume that it intended each term
to have a “particular, nonsuperfluous meaning.” Bailey v. United States,
supra, at 146.
Further, this distinction between the commission and the conviction of
offenses occurs repeatedly throughout the Act. The difference in these terms
continues to be evident in the amendments to the Act made by the IIRIRA,
and by other amendments, both before and after the enactment of the IIRI-
RA, which were made by the Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), and the
Nicaraguan and Central American Relief Act of 1997, Pub. L. No. 105-100,
tit. II, 111 Stat. 2193, amended by Pub. L. No. 105-139, 111 Stat. 2644

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(1997) (“NACARA”).3
For example, conviction of a crime involving moral turpitude commit-
ted within a statutorily defined period has long been a ground for deporta-
tion. The current provision is found in section 237(a)(2)(A)(i) of the Act and
provides, in part, that an alien who “is convicted of a crime involving moral
turpitude committed within five years . . . after the date of admission” is
deportable. Similar statutory provisions were formerly found at section
241(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1251(a)(2)(A)(i)(I) (1994), section
241(a)(4) of the Act, 8 U.S.C. § 1251(a)(4) (1988), and section 19(a) of the
Immigration Act of February 5, 1917, 39 Stat. 874. It is well established that
this ground of deportation arises from the commission of the offense with-
in the 5-year period irrespective of whether or not the conviction for the
offense occurs within the 5 years. See Matter of A-, 6 I&N Dec. 684, 687
(BIA 1955); Matter of Yanez-Jaquez, 13 I&N Dec. 449, 451 (BIA 1970).
In view of the distinctions which Congress has made between the com-
mission of an offense and a conviction under the immigration laws, we find
it appropriate to heed Congress’ choice in construing the language of the
statute.

VII. THE LEGISLATIVE HISTORY DOES NOT
COMPEL A CONTRARY READING

It is appropriate to look to legislative history for guidance in discerning
legislative intent. In this case, the legislative history seemingly points to an
intent that is contrary to the natural and straightforward reading of the
statute. However, it is far too limited to use as a basis for concluding that
the words of the statute do not mean what they say. We find only one sen-
tence that is pertinent to the issue at hand. The Joint Explanatory Statement
of the Committee of Conference includes the statement that “[s]ection
240A(d) provides that the period of continuous residence or physical pres-
ence ends when an alien is served a notice to appear under section 239(a)
(for the commencement of removal proceedings under section 240), or
when the alien is convicted of an offense that renders the alien deportable
from the United States, whichever is earliest.” See H.R. Conf. Rep. No.
104-828, at 214, available in 1996 WL 563320, at *474 (emphasis added).
This sentence refers only to offenses that render an alien “deportable”

3
See, e.g., sections 101(f), 212(a)(2)(A), (B), (E), 237(a)(2), 238, 241(b)(3) of the Act, 8
U.S.C. §§ 1101(f), 1182(a)(2)(A), (B), (E), 1227(a)(2), 1228, 1231(b)(3) (1994 & Supp. II
1996); see also AEDPA §§ 435, 110 Stat. at 1274-75; 440(a), (d), (e)(7), (f), 110 Stat. at 1276-
78; IIRIRA §§ 203(c), 110 Stat. at 566; 301(a), 110 Stat. at 575; 304; 309(c)(4)(G), 110 Stat.
at 3009-626.

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without mentioning those relating to inadmissibility that are also included
in the section 240A(d)(1) cutoff rule. This one sentence appears to be an
incorrect and incomplete summary of section 240A(d)(1). There is no
analysis or discussion from which to conclude that Congress did not intend
to give effect to the term “committed” that it actually used in the statute to
curtail continuous residence or physical presence.

Given the conflict between the use of the word “committed” in the
statute and the use of the word “convicted” in the legislative history, we
must assume that one of these documents was drafted in error. An error in
a 54-page summary of a 197-page conference report is understandable and
is an example of why the Supreme Court cautions that legislative history is
often unreliable, particularly when it is sparse. See Board of Education of
Westside Community Schools v. Mergens, 496 U.S. 226, 238, 242 (1990). It
is the statute, not the legislative history, that was passed by Congress and
signed into law by the President. As stated by the Supreme Court, “Without
a clearer indication of congressional intent than provided by the extremely
sketchy legislative history . . . the best evidence of what Congress wanted
is found in the statute itself . . . .” Bread Political Action Committee v.
Federal Election Committee, 455 U.S. 577, 584 (1982). We would need
more persuasive legislative history than this single sentence to reject the
express language of the statute.

VIII. IN ENACTING SECTION 240A(d)(1), CONGRESS DEPARTED
FROM THE LANGUAGE OF FORMER SECTION 244(a)

We likewise find nothing in our past precedent which requires us to
interpret section 240A(d)(1) in a manner that is contrary to an ordinary con-
struction of the language of the statute. In Matter of P-, 6 I&N Dec. 788
(BIA 1955), we interpreted language in former section 244(a) of the Act, 8
U.S.C. § 1254(a) (1952), which provided a rule governing the calculation
of the period of continuous physical presence required to establish eligibil-
ity for suspension of deportation in cases where the alien was deportable
under certain criminal and other specified grounds. That language bears
some similarity to section 240A(d)(1) to the limited extent that it references
the “commission” of an act. The relevant language of former section 244(a)
provided that, in order to be eligible for relief, an alien who was deportable
under one of the designated grounds must have been “physically present in
the United States for a continuous period of not less than ten years imme-
diately following the commission of an act, or the assumption of a status,
constituting a ground for deportation.” (Emphasis added.)
Under that statutory scheme, the Board concluded that the commission
of the crime “did not become ‘a ground for deportation’ until he was con-

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victed of that act and sentenced therefor” and held that the 10-year period
must be measured from the date of the alien’s conviction and sentence.
Matter of P-, supra, at 790; see also Matter of Lozada, 19 I&N Dec. 637
(BIA 1988).
However, suspension of deportation under section 244(a) is not avail-
able to aliens, such as the respondent, who are in removal proceedings.
Aliens in removal proceedings may seek the relief of cancellation of
removal pursuant to section 240A(b) of the Act, under the rules enacted by
the IIRIRA, as amended by section 203(a)(1) of the NACARA, 111 Stat. at
2196-98.
Congress has shown its familiarity with the language of former section
244(a) by carrying it forward in the “special rule” applicable to certain
NACARA-eligible aliens. It is significant that Congress did not choose that
language to measure the time requirements under the general cancellation
of removal rules that apply to all other aliens. The language employed in
section 240A(d)(1) is meaningfully different from that at issue in Matter of
P-. When Congress replaces long-standing language with new language, it
is reasonable to give that new language an ordinary and natural construc-
tion. It is not appropriate to give it a strained reading, simply because of the
reading given to analogous, but meaningfully different language in prior
law.
Moreover, as a general matter, we note that the classes of aliens who
had been subject to the 10-year physical presence rule of former section
244(a) that was at issue in Matter of P-, supra, will largely be ineligible, by
virtue of their criminal or other specified misconduct, to seek relief under
the analogous cancellation of removal provisions in section 240A(b) per-
taining to nonpermanent residents. See sections 240A(b)(1)(C), (c)(4) of the
Act, as amended.
Congress has only carried the old rule forward into removal proceed-
ings for a limited category of aliens described in section 309(c)(5)(C)(i) of
the IIRIRA, as amended by section 203(a)(1) of the NACARA, who are eli-
gible to seek “special rule” cancellation of removal despite their inadmissi-
bility or deportability under the specified criminal and other grounds. See
IIRIRA § 309(f)(1)(B), as amended by NACARA § 203(b), 111 Stat. at
2198-99. For NACARA-eligible aliens seeking “special rule” cancellation
of removal, our decision in Matter of P-, interpreting language that has been
carried forward in the “special rule” provision at section 309(f)(1)(B)(iii),
may have continuing relevance. Id.
However, all other aliens are subject to the general rules for cancella-
tion of removal. For non-NACARA aliens the period of continuous resi-
dence or physical presence required for cancellation of removal is set forth
in sections 240A(a)(2), (b)(1)(A), and (2)(B) of the Act. Congress has
directed that the requisite time period is to be calculated under the rule
defined in section 240A(d)(1). When structuring that rule, Congress chose

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not to employ the “assumption of status” and “constituting” a ground for
deportation language that had been in place for decades for purposes of cal-
culating the accrual of time for certain suspension of deportation cases.
We therefore conclude that Matter of P-, supra, is inapposite to non-
NACARA cancellation of removal cases. Those cases are controlled by the
section 240A(d)(1) rule for calculating the period of continuous residence
or physical presence required for cancellation of removal.
In sum, neither the scant legislative history nor prior precedent compels
us to read the statute in a manner that is contrary to the words used by
Congress. As explained earlier, however, we find support within the statute
itself for giving full effect to the natural reading of the “has committed” lan-
guage.

IX. OTHER CONSTRUCTIONS LEAD TO ANOMALIES

We have considered alternative constructions of the statute, but we find
them unsatisfactory. The most obvious alternatives involve: (a) substituting
the date of conviction in place of the date of commission of the crime as the
cutoff point, which would be consistent with the language in the legislative
history; or (b) reading the statutory language to cut off the accrual of time
at the point when the alien finally becomes inadmissible or removable, as
the dissent of Board Member Guendelsberger suggests.
An approach which substitutes a requirement that the alien has been
convicted for the “has committed” language in section 240A(d)(1) admit-
tedly offers the attraction of ease of application in those cases where an
alien’s inadmissibility or deportability is dependent on the existence of a
conviction. However, such an interpretation would be unworkable in calcu-
lating the continuous period in those cases where some act other than a con-
viction renders an alien inadmissible or deportable.
For example, some grounds of inadmissibility may be established with-
out a conviction, such as inadmissibility under section 212(a)(2)(A)(i)(I),
for crimes involving moral turpitude, and under section 212(a)(2)(A)(i)(II),
for controlled substances offenses. Inadmissibility under these provisions
may be established by a conviction, but it may also be established by the
admission to the commission of, or the admission to acts which constitute
the essential elements of, one of those offenses.
Requiring a conviction would allow an alien who is rendered inadmis-
sible by his or her admissions to continue to accrue time, until served with
a notice to appear, despite having committed an offense that has rendered
him or her inadmissible. Such an approach is contrary to the language of
section 240A(d)(1).
We could, of course, substitute the concepts of “admits having com-
mitted” or “admits to acts constituting the essential elements of” a crime of

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moral turpitude in place of the “has committed” language chosen by
Congress. This would be consistent with looking to the date of conviction
in cases where a conviction is needed, but it would require substituting a
variety of concepts for the “has committed” language that Congress actual-
ly used. Moreover, this would mean that the controlling date is effectively
the date that the alien is finally rendered inadmissible or deportable, either
by virtue of a conviction or the required admissions of having committed a
crime. This brings us to the dissent’s proposal, which specifically focuses
on the date the alien is rendered inadmissible or removable.
The dissent’s proposed reading is that time ceases to accrue when the
alien is rendered inadmissible or removable. The use of such a date as the cut-
off date, however, would leave no role for the “has committed” language to
play in section 240A(d)(1). The statute would read as if the “has committed”
language were not present. But the statutory language focuses on “when the
alien has committed an offense.” It does not direct the inquiry to the date
“when the alien . . . [is rendered] . . . inadmissible . . . or removable.”
The Supreme Court has consistently expressed a deep reluctance to
interpret a statutory provision in a way that makes other language within the
same statute superfluous. See, e.g., Freytag v. Comm’r, 501 U.S. 868, 877
(1991); International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187,
201 (1991); Pennsylvania Dep’t of Pub. Welfare v. Davenport, 495 U.S.
552, 562 (1990). We simply cannot agree with a construction of the statu-
tory language here that effectively turns the “has committed” phrase into
surplusage.4
Despite its ease of administration in the large number of cases where a
conviction is needed for removability, a construction of the statute that
relies on the date of conviction in a case such as the one before us must
either ignore (as the dissent’s reading in effect would do) or give multiple
meanings to the “has committed” language selected by Congress for the
rule governing how continuous residence and physical presence are to be
calculated. An approach which substitutes various events for the “has com-
mitted” language in the statute, or which relegates that language to needless
surplusage, is simply not sensible.5

X. CONCLUSION

4
The last sentence of former section 212(c), 8 U.S.C. § 1182(c) (1994), as amended by
section 440(d) of the AEDPA, 110 Stat. at 1217, and section 306(d) of the IIRIRA, 110 Stat.
at 3009-612, did not use the word “when” and was not concerned with marking a point in time
for measuring or ending the accrual of residence or physical presence. Contrary to the dis-
sent’s argument, we do not see the relevant language of former section 212(c) performing a
“similar function” to the language of section 240A(d)(1).
5
We see no “lingering ambiguities” here to which the rule of lenity might otherwise
apply. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).

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We find that the only sensible construction of the statute is to give the
words used their natural and straightforward meaning. There is insufficient
legislative history here to conclude that Congress did not intend to give
effect to the “has committed” language in section 240A(d)(1). We will not
accord greater weight to a single sentence of legislative history, which
incompletely addresses the issue of termination of time, than we accord to
the language of the statute itself.
The language chosen by Congress directs that an alien cease accruing
the time required to establish eligibility for the relief of cancellation of
removal at the point where he or she abuses the hospitality of this country
by committing one of the designated offenses, so long as the offense sub-
sequently renders the alien inadmissible or removable. Adhering to the
direct command of the statutory language has not been shown to lead to any
anomalous or absurd results in removal cases. And, importantly, it allows us
to apply the statute in various situations, aside from those where a convic-
tion is needed for removability, without being forced to contort the ordinary
meaning of the provision as written and without making any language
superfluous.
Accordingly, this respondent’s period of continuous residence is
deemed to have ended on the date he committed his controlled substance
violation. The commission of that offense was prior to his attainment of the
required 7 years of continuous residence. Therefore, he is statutorily ineli-
gible for section 240A(a) cancellation of removal. Accordingly, we find that
the Immigration Judge’s pretermission of his application for cancellation of
removal was proper.
ORDER: The appeal is dismissed.
Board Member Anthony C. Moscato did not participate in the decision in
this case.

DISSENTING OPINION: John W. Guendelsberger, Board Member, in
which Paul W. Schmidt, Chairman; Gustavo D. Villageliu and Lory D.
Rosenberg, Board Members, joined

I respectfully dissent.
The respondent, a permanent resident alien, was found removable
under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8
U.S.C. § 1227(a)(2)(B)(i) (Supp. II 1996), on the basis of his conviction for
a controlled substance violation. He has applied for cancellation of removal
under section 240A(a) of the Act, 8 U.S.C. § 1229(b)(a) (Supp. II 1996), in
order to retain his status as a lawful resident of the United States. The
respondent is otherwise eligible for cancellation of removal if he can show
that he has 7 years of continuous residence in the United States after hav-

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ing been admitted in any status.1 Section 240A(a)(2) of the Act. The ques-
tion presented here is whether the termination provision in section 240A(d)
ended the qualifying period of residence as of the date of the respondent’s
conviction or the date of the crime.2 The majority concludes that the “nat-
ural reading” of section 240A(d) establishes that Congress intended to end
the qualifying period of residence as of the date the offense was committed.
I cannot agree.
The “natural” and grammatically correct reading of the statute, clear
legislative history directly on point, and basic principles of statutory con-
struction all call for an interpretation of section 240A(d)(1) that would ter-
minate the period of continuous residence at the time a respondent is ren-
dered inadmissible or removable. In this case, the respondent was rendered
removable upon conviction for the controlled substance violation. At that
point, he had accrued 7 years of continuous residence. I therefore disagree
with the majority’s determination that the respondent is ineligible for can-
cellation of removal under section 240A(a).

I. SECTION 240A(d)(1) ENDS ACCRUAL OF CONTINUOUS
RESIDENCE WHEN A RESPONDENT IS RENDERED
INADMISSIBLE OR REMOVABLE FOR HAVING
COMMITTED ONE OF THE DESIGNATED OFFENSES

Section 240A(d)(1) addresses termination of continuous residence in
the following terms:
For purposes of this section, any period of continuous residence or continuous physi-
cal presence in the United States shall be deemed to end when the alien is served a
notice to appear under section 239(a) or when the alien has committed an offense
referred to in section 212(a)(2) that renders the alien inadmissible to the United States
under section 212(a)(2) or removable from the United States under section 237(a)(2)
or 237(a)(4), whichever is earliest.

Boiled down to its essentials3, the critical language in section 240A(d)(1)

1
There is no dispute that the respondent is otherwise eligible for cancellation of
removal under section 240A(a). He has been admitted for permanent residence for more than
the required 5 years and has not been convicted of an aggravated felony. See sections
240A(a)(1), (3) of the Act.
2
The respondent was first admitted as a temporary resident on September 21, 1989. He
was convicted of possession of cocaine in July 1997. The offense date was in August 1992.
If section 240A(d)(1) ends continuous residence on the date of conviction, the respondent
accrued the required 7 years of continuous residence. If continuous residence ends on the
date of commission of the offense, the respondent lacks the required 7 years.

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for purposes of the issue presented in this case reads as follows:
[A]ny period of continuous residence . . . shall be deemed to end WHEN the alien has
committed an offense [referred to in section 212(a)(2)] that renders the alien . . .
removable from the United States under section 237(a)(2) . . . .

The final clause, “that renders the alien . . . removable,” is a subordinate
clause which modifies the direct object, “offense.” The “that renders”
clause is attached to, and is an integral part of, the main clause beginning
with the word “when.” It answers the question of when the commission of
particular offenses, those “referred to in section 212(a)(2),” ends accrual of
residence time. The subordinate clause attached to the main clause indicates
that termination occurs WHEN “the alien has committed an offense . . . that
renders the alien removable from the United States.” The “when” clause
does not end with the direct object, “an offense,” or the descriptive phrase
attached to it. It is limited by the “that renders” clause which modifies “an
offense” and describes an additional factor which must have occurred
before accrual of residence ends.
The majority asserts that the “that renders” clause merely defines the
types of offenses which cut off the accrual of time. But the types of offens-
es which cut off the accrual of time are earlier described as those offenses
“referred to in section 212(a)(2).” It is not the type of offense which is reg-
ulated by the “that renders” clause, but the impact of the offense, i.e., inad-
missibility or deportability. The “that renders” clause is, of course, descrip-
tive; it completes the description of when an offense which has been com-
mitted will terminate the accrual of residence.
The majority suggests that its reading of the statute may be better
understood if the word “subsequently” or “ultimately” is inserted before the
word “renders.” See Matter of Perez, 22 I&N Dec. 3389, at 6 (BIA 1999).
Notably, Congress did not choose to include such a modifier, and as an
administrative body, we are not free to add language or rewrite provisions
in order to achieve a particular meaning or result. Nor would such addi-
tional language necessarily achieve the result suggested by the majority.
The subordinate “that renders” clause would still modify the “when”
clause, as it now does. The suggested language would also make no sense
in those cases in which commission of an offense is the same event that ren-
ders the alien inadmissible or removable, as in the case of an alien charged
with having engaged in prostitution or commercialized vice. See section
212(a)(2)(D) of the Act, 8 U.S.C. § 1182(a)(2)(D) (1994 & Supp. II 1996).

3
There is no question that the respondent had accrued 7 years of continuous residence
prior to the service of the notice to appear. Because the respondent is charged with a ground
of removability, the reference to inadmissibility under section 212(a) has also been extracted.

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In such situations, there would be no “subsequent” event.

II. THE MAJORITY DISTORTS THE SIGNIFICANCE AND
MEANING OF THE “COMMITTED AN OFFENSE” LANGUAGE

The majority queries why Congress would have used the “has commit-
ted an offense” language had it meant to allow accrual of residence until
occurrence of some event after the date of commission. Part of the answer
is that section 212(a)(2), the universe of offenses which may eventually
result in termination of accrual of residence, contains a variety of descrip-
tions of the conduct which will render a respondent inadmissible or remov-
able. Some provisions require a criminal conviction.4 Some require only
admission of acts constituting a criminal offense.5 For some other provi-
sions the mere commission of an offense suffices to render an alien inad-
missible.6
Congress, having selected section 212(a)(2) grounds as the core of rel-
evant offenses for purposes of section 240A(d), could not describe those
offenses in terms of “convictions under section 212(a)(2)” because that
would leave out all of those grounds which render an alien inadmissible
without need for a conviction. The phrase “committed an offense referred
to in section 212(a)(2)” is a shorthand description which sweeps broadly
enough to encompass all the various acts, short of conviction, described in
the section 212(a)(2) grounds for inadmissibility.
The majority suggests that the “has committed” language would be
superfluous were the “that renders” clause read to govern when accrual of
residence terminates. But the “has committed” language is no more super-
fluous as used in section 240A(d) than it was in the last sentence of former
section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), as amended. The lan-
guage performs a similar function in both statutes: it describes a category of
offenses which may, upon occurrence of a later event, result in a cutoff of
eligibility for benefits. Former section 212(c) contained the following bar to
eligibility:
an alien who is deportable by reason of having committed a criminal offense covered

4
See, e.g., section 212(a)(2)(B) of the Act (conviction for two or more moral turpitude
offenses).
5
See, e.g., section 212(a)(2)(A) of the Act (admits having committed or admits commit-
ting acts which constitute the essential elements of a crime involving moral turpitude or con-
trolled substance violation).
6
See, e.g., section 212(a)(2)(D) of the Act (engaged in or is coming to the United States
to engage in prostitution or commercialized vice).

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Interim Decision #3389

in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section
241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of
their commission, otherwise covered by section 241(a)(2)(A)(i). (Emphasis added).7

Although most grounds of deportation listed in the section 212(c) bar
to relief required a conviction, section 241(a)(2)(B)(ii) of the Act, 8 U.S.C.
§ 1251(a)(2)(B)(ii) (1994), also rendered deportable “[a]ny alien who is, or
at any time after entry has been, a drug abuser or addict.” Thus there was a
need for the “committed any criminal offense” catchall in describing the
grounds covered, rather than “convicted of” or some other terminology.
Notably, mere commission of an offense was not enough to bar relief
under former section 212(c). But that did not make the section 212(c) “hav-
ing committed” language superfluous. The term was part and parcel of the
description of those categories of aliens who would be rendered ineligible
for relief upon occurrence of a subsequent event, in the case of section
212(c), a finding of deportability. See Matter of Fortiz, 21 I&N Dec. 1199
(BIA 1998) (holding that for an alien to be barred from eligibility for a
waiver under section 212(c) as one who “is deportable” by reason of hav-
ing committed a criminal offense covered by one of the criminal deporta-
tion grounds there enumerated, he or she must have been charged with, and
found deportable on, such grounds); Matter of Fuentes-Campos, 21 I&N
Dec. 905 (BIA 1997). Likewise, the term “has committed” in section
240A(d) describes the categories of criminal acts which subject an alien to
the stop-time rule and directs that time ends when the alien is rendered inad-
missible or removable. The majority’s purported concern over superfluous
language is therefore simply unfounded.
Another provision using the point of “commission” to describe the
grounds covered is former section 244(a)(2) of the Act, 8 U.S.C. §
1254(a)(2) (1994), which precludes suspension of deportation for persons
deportable under former sections 241(a)(2), (3), or (4) who have not been
physically present in the United States for a continuous period of not less than 10 years
immediately following the commission of an act, or the assumption of a status, con-
stituting a ground for deportation. (Emphasis added.)

In construing section 244(a)(2), this Board ruled that it was not the “com-
mission of the act,” but the fact of deportability for having committed such
an offense, that was the crucial point in time. Matter of Lozada, 19 I&N
Dec. 637 (BIA 1988); Matter of P-, 6 I&N Dec. 788 (BIA 1955).

7
This limitation on section 212(c) relief was added by section 440(d) of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214,
1217 (“AEDPA”), as amended by section 306(d) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-
546, 3009-612 (“IIRIRA”).

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The statute in Matter of P- defined the event that triggered the com-
mencement, rather than the termination, of the required period. The respon-
dent in Matter of P- would have accrued the requisite 10 years if measured
from the date of commission of the crime, but would not if the operative
date was the date he was convicted. The Board found that the commission
of the crime “did not become ‘a ground for deportation’ until he was con-
victed of that act and sentenced therefor” and accordingly ruled that the 10-
year period must be measured from the date of his conviction and sentence.
Matter of P-, supra, at 790.
Matter of P- was followed in Matter of Lozada, supra, where the Board
applied the same language that was at issue in Matter of P- and concluded
that “it is the conviction, not the commission of the offense, that renders the
alien deportable.” Matter of Lozada, supra, at 640. Notably, the language
used by the Board, “renders the alien deportable,” is the same language
selected by the drafters of section 240A(d), i.e., the cutoff occurs “when the
alien has committed an offense . . . that renders the alien inadmissible . . .
or removable.” (Emphasis added.) This choice of language strongly sug-
gests that the drafters’ intentions as to the workings of the termination pro-
vision in section 240A(d) were consistent with the Board’s explanation in
Lozada of the operation of the termination provision in section 244(a).
When Congress replaced the section 212(c) waiver and section 244(a)
suspension of deportation with cancellation of removal in sections 240A(a)
and (b), it considerably revised the criminal bars to eligibility. It retained,
however, the “committed an offense” formula from former section 212(c) to
describe the types of grounds which would affect timing. As in former sec-
tion 212(c), it is the point at which the respondent is rendered inadmissible
or removable that is crucial in terms of timing in section 240A(d).

III. LEGISLATIVE HISTORY AND BASIC PRINCIPLES OF
STATUTORY CONSTRUCTION INDICATE THAT THE
ACCRUAL OF TIME ENDS WHEN THE RESPONDENT
IS RENDERED INADMISSIBLE OR REMOVABLE

On rare occasions, legislative history affords insight into the intent of
the framers. Remarkably, in this case, we have an instance of legislative his-
tory directly on point. The Joint Explanatory Statement of the Committee
of Conference clearly states: “Section 240A(d) provides that the period of
continuous residence or physical presence ends when an alien is served a
notice to appear under section 239(a) (for the commencement of removal
proceedings under section 240), or when the alien is convicted of an offense
that renders the alien deportable from the United States, whichever is earli-
est.” See H.R. Conf. Rep. No. 104-828, at 214, available in 1996 WL
563320, at *474 (emphasis added). The legislative history makes no men-

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tion of the date that the alien has committed the offense.
The majority declares the legislative history incomplete and, therefore,
incorrect. The legislative history may be technically incomplete, because it
does not address inadmissibility and those few grounds of inadmissibility
which do not require a conviction in order that the respondent be rendered
inadmissible, e.g., admission of commission of a moral turpitude crime
under section 212(a)(2)(A) or engagement in prostitution under section
212(a)(2)(D). But the reference in the legislative history is to offenses
which render the alien deportable (now removable), and all of the covered
offenses in section 237(a)(2) (i.e., those which are referred to in section
212(a)(2)) require a conviction before the alien is considered removable.8
Thus the legislative history’s reference to “conviction” is an accurate reflec-
tion of the statute’s effect in removal cases, i.e., for all the applicable
removal grounds the alien is rendered removable upon conviction of a des-
ignated offense. While the legislative history may be technically incom-
plete, that does not make it incorrect, as the majority asserts, insofar as the
expression of the general rule of interpretation to be applied to those offens-
es for which a conviction is required in the ground for inadmissibility or
removal. In that sense the legislative history affords important guidance, if
not a clear resolution, of the question of when, by and large, termination of
residence occurs.
As discussed above, the guidance afforded in the legislative history of
section 240A(d) is consistent with the approach used to bar relief in the
predecessor provisions to cancellation of removal and in the Board’s prior
interpretation of similar statutory language in former section 244(a)(2).
Other provisions barring relief for those involved in criminal activity gen-
erally resort to the date of conviction as the crucial factor in terminating eli-
gibility. See, e.g., sections 240A(a)(3), (b)(1)(C) of the Act.
The majority’s “anomalies” argument is premised on the proposition
that we propose to substitute “conviction” for “commission” in the statute.
No such proposal has been made. Nor is that what the statute says. The
statute refers to the point at which the alien is rendered inadmissible or
removable. Thus the “anomalies” argument is built upon a false premise and
fails.
The majority’s statement that requiring a conviction would allow an
alien who is rendered inadmissible by his or her admissions to continue to

8
Under the terms of section 240A(d), only those section 237(a)(2) offenses which over-
lap with offenses described in section 212(a)(2) operate to terminate accrual of time. These
section 237(a)(2) offenses are convictions for moral turpitude crimes (section 237(a)(2)(A))
and for controlled substance violations (section 237(a)(2)(B)(i)). The bars for aggravated
felony convictions, firearms convictions, and other offenses described in section 237(a)(2) do
not overlap with offenses described in section 212(a)(2).

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accrue time until served with a notice to appear is simply wrong. If the alien
is rendered inadmissible under the terms of section 212(a)(2) by admission
of an offense, the accrual of residence would cease with the date of the
admission of the offense. See, e.g., section 212(a)(2)(D) of the Act (inad-
missible if engaged in or coming to the United States to engage in prostitu-
tion or commercialized vice).
The termination of residence time upon the occurrence of the event
which renders the alien inadmissible or removable is the historical approach
and a common sense approach which eases administration of the law. Under
this approach, as a practical matter, it is generally the date of conviction
which will become the crucial point to be identified. The date of conviction
is normally easy to pinpoint. Under the majority approach, in every case
involving section 240A(d), the adjudicator will have to identify the date of
commission of the offense. Just when a crime was “committed” will, in
some cases, be uncertain or indeterminate. In cases involving conspiracies
to commit an offense, for example, there will be considerable difficulty in
identifying the offense date. Thus, ease of administration also augers in
favor of a reading which recognizes that accrual of time ends when the alien
is rendered inadmissible or removable.
The respondent’s offense is one “referred to in section 212(a)(2)” at
subparagraph (A)(i)(II), which pertains to controlled substance violations.
However, with certain exceptions not applicable in this case, an alien who
has committed a controlled substance violation is not inadmissible under
section 212(a)(2) until he has been convicted.9 Similarly, an alien is not
removable under subparagraph (B)(i) of section 237(a)(2) without a con-
viction.
Any lingering doubts as to the appropriate construction of section
240A(d), after examining legislative history and other aids to construction,
should be resolved by the rule of lenity, a principle of statutory interpreta-
tion deeply imbedded in immigration law. This rule requires that when a
limitation on relief from removal is ambiguous, it must be afforded the nar-
rower meaning, the meaning in which fewer activities bar the alien from eli-
gibility. The reason for this rule in the immigration area is that, given the
drastic consequences of deportation or removal, Congress must speak clear-
ly and definitely before we apply a bar to relief from removal. See INS v.
Errico, 385 U.S. 214, 225 (1966) (construing section 241(f) of the Act, 8
U.S.C. § 1251(f)(1964), and indicating that doubts as to the correct con-
struction of the statute affording relief from deportation should be resolved

9
See generally section 212(a)(2)(A)(i) of the Act; Matter of J-, 2 I&N Dec. 285 (BIA
1945). We also note that the record does not include evidence that the respondent is a drug
trafficker under section 212(a)(2)(C), which may render a respondent inadmissible without a
conviction.

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in the alien’s favor); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 449
(1987) (noting the “longstanding principle of construing any lingering
ambiguities in deportation statutes in favor of the alien”); Fong Haw Tan v.
Phelan, 333 U.S. 6, 10 (1948) (stating that any doubts regarding the con-
struction of the Act are to be resolved in the alien’s favor); Matter of Tiwari,
19 I&N Dec. 875 (BIA 1989). Here, the rule of lenity also points toward the
interpretation which terminates the period of continuous residence when the
respondent is rendered inadmissible or deportable.

IV. CONCLUSION

A common sense reading, clear legislative history, ease of administra-
tion, and our prior interpretation of similar statutory language indicate that
section 240A(d) terminates accrual of time toward the continuous residence
requirement when the respondent is rendered inadmissible or removable for
commission of an offense described in section 212(a)(2). The respondent
accrued more than the requisite 7 years of continuous residence between his
admission as a temporary resident on September 21, 1989, and his convic-
tion on July 11, 1997, which rendered him removable. Accordingly, I would
sustain his appeal and remand the record to the Immigration Judge for con-
sideration of the respondent’s application for cancellation of removal under
section 240A(a).

708