Matter of Chen, 28 I&N Dec. 676 (BIA 2023)

Matter of Chen, 28 I&N Dec. 676 (BIA 2023)

(1) The “stop-time” rule under section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(1), is not triggered by the entry of a final removal order, but rather only by service of a statutorily compliant notice to appear or the commission of specified criminal offenses, in accordance with the plain language statutory analysis provided in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).

(2) Breaks in physical presence under section 240A(d)(2) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d)(2), continue to be interpreted as distinct from termination of physical presence under the stop-time rule. Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), followed.

(3) A respondent claiming a fundamental change in law as the basis for seeking sua sponte reopening must also establish prima facie eligibility for the relief sought. Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999), followed.

"This case was last before us on July 26, 2005, when we dismissed the respondent’s appeal from an Immigration Judge’s decision ordering her removed. Relying on Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the respondent has now filed a motion to reopen her removal proceedings to apply for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1) (2018). The motion will be denied."