March 17, 2014 4th Circuit published opinion

Urbina v Holder

Urbina sought to have the ten year period in 8 USC 1229b run from the time he legally entered the United States until a correct charge was filed with the administrative law judge and not until the date when he was served with a notice to appear. The judge denied his motion and ruled him ineligible for cancellation of removal. The panel affirmed in part and dismissed in part. It held 1229b was ambiguous as to whether or not a notice to appear which lacks a time and date to appear and which has an incorrect charge stops the ten year clock. Applying Chevron deference, the panel held that the Board of Immigration Appeals reading that time and place was unnecessary was reasonable and thus applied here and further extended the logic to the lack of a correct charge as there was no indication the government deliberately filed an incorrect charge particularly as it relied on Urbina’s statements in making the charges. The panel rejected challenges to the regulation authorizing the amendment as the regulations are reasonable. It dismissed a challenge to a motion to reconsider as it was not preserved below.

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