By Jordan Crews

Earlier this week, in Urbina v. Holder, the Fourth Circuit denied an alien’s petition for review of an adverse immigration decision.

Urbina entered the United States on October 4, 2000, on a tourist visa.  He overstayed its expiration.  In December of 2009, the Department of Homeland Security (DHS) served Urbina with a notice to appear, charging him with having entered the United States without being admitted or paroled.  Apparently, the government based that charge on Urbina’s own representations in his applications for temporary protected status, in which he asserted that he had entered the country in 1998–an entry date that the government was unable to verify.  Urbina did not argue that he was in the country legally, but he did argue that he entered the country legally in 2000.  Thus, he contended that the charge against him was incorrect.  Urbina asked the government file an I-261 form at the next hearing; this form would replace the original charge on the notice (illegal entry) with the factually correct charge (illegal presence).  Urbina then filed a motion to terminate the original charge, which the Immigration Judge (IJ) denied without a written opinion.  The DHS did, however, amend the charge, alleging that Urbina was removable as an alien who overstayed his period of authorized presence.

The Immigration and Nationality Act permits the Attorney General to cancel removal of certain aliens, but the statute requires the alien to have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.”  A valid notice to appear stops the accrual of continuous physical presence required for cancellation of removal.  Urbina contended that his original notice to appear–which stopped the accrual of the requisite ten years’ continuous physical presence–was invalid, and that only the newly substituted charge stopped the clock, and it did so after he had reached the ten-year mark, making him eligible for cancellation of removal.  The IJ did not agree, and the Board of Immigration Appeals (BIA) dismissed Urbina’s appeal.  Urbina then filed a petition for review in the Fourth Circuit.

Urbina contended that the original notice to appear was invalid and thus did not activate the stop-time rule.  Particularly, he contended that the initial notice’s incorrect charge rendered it invalid.  Before Urbina’s appeal, the BIA issued a precedence decision, in which the BIA determined that the relevant statutory language is ambiguous.  The statute states only that the stop-time rule is triggered “when the alien is served a notice to appear.”  The BIA read the statute as not requiring that the notice to appear to include the date and time of a hearing.  Although this decision did not directly address whether its analysis would apply to incorrect charges as well as missing dates and times, in a footnote in the decision, the BIA suggested that “there is no reason to conclude that Congress would have intended an alien to be able to accrue time between service of the notice to appear and service of an I-261 [providing the charges against an alien], which may occur much later and, in fact, at any time during the proceeding.”  The Fourth Circuit held that this interpretation was reasonable, and thus passed Chevron analysis.

Urbina also argued that the IJ violated his procedural due process right by pretermitting his application for cancellation of removal.  He argued that this was prejudicial because of certain “open factual issues.”  However, before going into any analysis of the claim, the Court held that it lacked jurisdiction to review the claim because Urbina failed to raise the question before the BIA, and “a court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right.”

Thus, Urbina’s petition was denied.

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