Judicial Review – Immigration

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7^th Circuit Court of Appeals

Case Name: Sergio Isunza v. Loretta Lynch          

Case No.: 15-1286

Officials: ROVNER, and WILLIAMS, Circuit Judges, and SHAH, District Judge. *

Practice Area: Judicial Review – Immigration

Petition for review denied for immigration appeal. Appellant is removable due to controlled substance charge.

“The Board reasonably construed the statute, 8 U.S.C. § 1229b, to find that commission of a qualifying drug crime permanently terminated the accrual of time toward continuous residency. In Matter of Nelson, 25 I. & N. Dec. 410, 413 (BIA 2011), the Board held that commission of a specified crime was a terminating event “after which continuous physical presence or continuous residence could no longer accrue.” Isunza points out that in Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005), the court determined that continuous presence could restart after a reentry into the United States. But that decision is an outlier and based on distinguishable facts—the petitioner’s notice to appear for removal proceedings was tied to an overstay of a student visa, not the commission of a crime. After Okeke, the Board decided Nelson, which firmly holds that a qualifying drug crime stops the clock. The Third Circuit then affirmed Nelson, and held that the Board’s conclusion that reentry did not restart the clock was reasonable. Nelson v. Attorney Gen. of U.S., 685 F.3d 318, 325 (3d Cir. 2012). More recently, the Third Circuit again cabined Okeke to cases where the petitioner’s notice omitted reference to a qualifying drug crime. Singh v. Attorney Gen. of U.S., 807 F.3d 547, 553 (3d Cir. 2015) (residency clock stopped when petitioner committed crime and “could never re-start”). Perhaps most importantly for our purposes, this court has declined to follow Okeke and said that petitioners cannot restart the clock and accrue time for purposes of establishing continuous physical presence after commission of a drug crime. Torres-Rendon v. Holder, 656 F.3d 456, 463 (7th Cir. 2011). The Board’s decision here was in line with this precedent. It also makes sense because a person who commits a drug crime and leaves the United States for a vacation “has no greater logical claim to be entitled to cancellation of removal than a similarly-situated alien who never leaves the country.” Nelson, 685 F.3d at 325. A logical decision, consistent with precedent, is a reasonable one and entitled to deference.”

Petition Dismissed in Part, Denied in Part

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