Mejia-Castanon v. A.G.—immigration—affirmance—Scirica

Dissents in the Third Circuit are rare enough, but dissents authored by non-Third Circuits sitting by designation are rarer still. Once a year, maybe? It happened today in an immigration appeal, where Sixth Circuit Judge Siler (who must be the circuit’s most-frequent sitter-by-designation) dissented.

Immigrants subject to deportation can apply for cancellation of removal if they can show (a) 10 years of continuous physical presence and (b) good moral character. Congress modified the physical presence requirement with the stop-time rule, which says that physical-presence clock stops once the government serves a notice to appear.

The question in today’s appeal was whether the stop-time rule applies to the moral-character requirement, too. If an immigrant’s presence after notice service can’t help him for accruing 10 years, does that mean that bad acts after service can’t hurt him for proving good character? The court held that the stop-time rule does not apply to the moral-character requirement, holding that the relevant statute was ambiguous and applying Chevron deference to the BIA’s interpretation. The dissent disagreed, arguing that the statute wasn’t ambiguous. In my view the dissent’s reading would be less unfair but the majority’s reading is correct, alas.

Joining Scirica was Ambro; Siler CA6 by designation dissented. Arguing counsel were Theodore Murphy of the Murphy Law Firm for the immigrant and Sabatino Leo for the government.