Petr Vasilyevich Rudnitskyy, a lawful permanent resident since 2003, faced removal proceedings after being convicted of heroin possession in violation of Oregon law. Although he committed the offense on October 14, 2009, just months before completing seven years of continuous residence, his conviction did not become final until January 20, 2011, after the seven-year period had expired. Rudnitskyy applied for cancellation of removal, arguing that the statutory seven-year clock should stop on the date of his final conviction, which would have placed him outside the disqualifying window. The Immigration Judge and the Board of Immigration Appeals (BIA) denied his application, concluding that the stop-time rule measures the date of the offense's commission, not the conviction date. The BIA further rejected his arguments regarding the completeness of his Notice to Appear and his claim that removal constituted cruel and unusual punishment.
The Ninth Circuit affirmed the BIA's decision, relying on the plain text of the Immigration and Nationality Act and the Supreme Court's ruling in Barton v. Barr. The court explained that the stop-time rule explicitly states that continuous residence ends when the alien 'has committed an offense' that renders them removable. The court noted that while removability generally requires a conviction, the stop-time rule's purpose is to prevent noncitizens from exploiting administrative delays to 'buy time' and accumulate the required seven years of residence after committing a disqualifying crime. The court clarified that the phrase 'whichever is earliest' in the statute refers to the choice between the service of a Notice to Appear or the commission of the offense, not the date of conviction. The court emphasized that Barton v. Barr abrogated the Ninth Circuit's previous decision in Nguyen v. Sessions, which had suggested a different interpretation. The court found that every other circuit and the BIA agree that the commission date is the controlling factor. Consequently, because Rudnitskyy committed the offense within seven years of admission, he was statutorily barred from cancellation of removal regardless of when his conviction became final.
This decision reinforces the strict application of the stop-time rule across the Ninth Circuit, aligning it with the Supreme Court's mandate in Barton. It ensures that lawful permanent residents cannot extend their eligibility for cancellation of removal by delaying the finalization of criminal convictions. The petition is denied, and the order of removal stands. No remand is issued as the statutory ineligibility is clear based on the date of the offense.
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