The Stop-Time Rule and When Continuous Presence Ends
Continuous presence does not simply run until a case is filed. Two events end it, whichever comes first, and one of them can be the commission of an offense years before anybody in government took an interest in the person at all.
The rule in short
Continuous residence and continuous physical presence end at the earlier of two events: service of a notice to appear under the statute, or commission of an offense that renders the person inadmissible under the criminal ground or removable under the criminal or security grounds. The Supreme Court has held that a document omitting the time and place of the hearing is not a notice to appear for this purpose, and that a later notice supplying the missing detail does not cure the defect.
Cancellation of removal counts years, and the stop-time rule decides when the counting stops. It is a short provision with a large reach: two events end continuous residence and continuous physical presence, and the earlier of the two governs. A person can be years short of the required period without ever having left the country.
The two triggering events
The first event is service of a notice to appear under the initiation provision of the statute. The second is commission of an offense referred to in the criminal inadmissibility ground that renders the person inadmissible under that ground or removable under the criminal or security deportability grounds. Whichever happens earliest ends the period.
One carve-out is written into the same sentence. The service prong does not apply to a person applying under the special rule for a battered spouse or child, which is why that route can survive a filing that would end an ordinary application.
The rule is not a pause. Once the period ends it does not resume, and time accrued after the triggering event does not count toward the same period. A case that is terminated does not restore what was lost.
What counts as a notice to appear
The service prong refers specifically to a notice to appear under the statutory provision, and that provision requires the document to specify a list of items including the time and place at which the proceedings will be held.
The Supreme Court has held that a document omitting the time and place is not a notice to appear for stop-time purposes and does not trigger the rule. It later held that the missing information cannot be supplied in a second mailing: the statute speaks of a notice, a single document, and the government cannot assemble the required contents in installments.
The practical consequence is arithmetic. Where the original document lacked a hearing time and place, the clock did not stop when it was served. It stopped, if at all, when a complete document was served or when a qualifying offense was committed. Months or years may therefore have continued to accrue after the case was already underway.
| Event | Stops the clock? | Why it matters |
|---|---|---|
| Charging document served with time and place stated | Yes | The ordinary trigger, effective on service |
| Charging document served without time and place | No | It is not a notice to appear under the statute for this purpose |
| Later hearing notice supplying the missing detail | No | The contents cannot be delivered in installments |
| Commission of a listed offense | Yes | Turns on the date of the act, not the date of conviction |
| Service on a battered spouse or child applicant | No | The special rule is carved out of the service prong |
The offense prong
The second trigger is easy to overlook because nothing visible happens when it fires. It looks to the commission of an offense referred to in the criminal inadmissibility ground, and it operates from the date of the conduct rather than from arrest, charge or conviction.
That timing gap can be decisive. Somebody arrested in one year and convicted in the next has the clock stopped at the earlier moment, which may fall inside the period being counted. Where the conduct was long before the case was filed, the offense prong rather than the service prong is often the real cutoff.
The Supreme Court has read the prong to reach an offense that renders a person inadmissible even where that person was lawfully admitted years earlier and was never charged on that basis. The question is whether the offense is one described in the criminal inadmissibility ground, not whether the government used it as the ground for the case.
That reading has a hard practical edge for permanent residents. Someone charged with a firearms offense, which is not in the criminal inadmissibility ground, may still have the clock stopped by an unrelated older offense involving moral turpitude that nobody has mentioned. The whole criminal history has to be run against the inadmissibility ground, not only the conviction that produced the case.
Whether a given conviction falls within that ground is itself a comparison exercise rather than a matter of the offense name, and the small-offense exception that removes some convictions from it is applied at the same stage. Both are questions decided before any counting of years begins.
An argument that the document did not stop the clock is an argument about counting years, not about whether the case can proceed. The court retains jurisdiction, the charges stand, and the hearing goes ahead. What changes is the arithmetic underneath an application for cancellation. Treating the point as a route to termination rather than as an eligibility argument leads to disappointment.
Working out the actual cutoff
The analysis is mechanical once the pieces are in hand. Identify the date of entry or of the admission from which the period runs. Identify the date any complete charging document was served, and check whether the document contained a hearing time and place. Identify the date of commission of any offense described in the criminal inadmissibility ground. Take the earlier of the two triggering events and measure the period back from it.
Then apply the departure limits, because presence must also have been continuous through the period, a question set out in ten years of presence and the brief departures that break it. A period that is long enough on paper still fails if a trip abroad broke it.
Where the arithmetic is close, the source documents matter more than anyone's recollection: the served copy of the charging document with its endorsements, the certificate of service, any subsequent hearing notices, and the certified criminal disposition showing the date of the offense rather than the date of the plea. Assembling those and running the count is work worth doing with a stop-time rule immigration attorney before an application is filed, because a filing made on the wrong count is difficult to withdraw.
Where the rule reappears
The same cutoff is written into the motion practice. A motion to reopen for consideration of cancellation of removal may be granted only on a demonstration that the person was statutorily eligible before service of a charging document, or before commission of a listed offense, whichever is earliest. A motion that cannot satisfy that showing fails whatever else it establishes.
The rule also frames how the underlying application is presented, because the years being counted must be described consistently across the presence evidence, the declaration and the testimony. It applies to both versions of the relief, and how it interacts with the shorter periods required of a permanent resident is set out in cancellation for a green card holder. The document that triggers it is the same one described in what the charging document alleges, which is why its contents are checked line by line at the outset.
Points to carry away
- The clock stops at the earlier of service of a compliant charging document or commission of a listed offense.
- A charging document omitting the time and place of the hearing does not trigger the rule.
- A second notice supplying the missing time and place does not repair the first document for this purpose.
- The offense prong turns on commission, not conviction, so the date of the act governs.
- Once the clock stops it does not restart, and time accrued afterward does not count.
Questions readers ask
Does the rule apply to every form of relief that counts years?
No. It is written into the cancellation of removal provisions and governs the seven-year residence period for permanent residents and the ten-year physical presence period for others. It expressly does not apply to the special rule for a battered spouse or child, which is why that route can survive a service of process that would end an ordinary application. Other forms of relief that count time, including registry and some humanitarian provisions, run on their own rules rather than this one.
Can the clock start again after proceedings end?
Agency case law treats the stop as permanent rather than as a pause. A person whose proceedings were terminated does not resume accruing on the old period; the years already accrued remain fixed at the moment the clock stopped. That is why a case that ends without a removal order can still leave someone permanently short of the required period. A new period can begin, but it begins from scratch and has to run its full length.
What if the offense was committed but never charged?
The statutory language speaks of committing an offense that renders the person inadmissible or removable, rather than of being convicted of one. That wording has been read to reach conduct established by admission or by other evidence, even where no prosecution followed. It also means the operative date is the date of the act rather than the date any court disposed of it, which frequently moves the stop backward by months or years relative to what the criminal record shows on its face.
Sources
- 8 U.S.C. § 1229b — Cancellation of removal; adjustment of statusSubsection (d)(1) states the two triggering events and the whichever-is-earliest rule.
- 8 U.S.C. § 1229 — Initiation of removal proceedingsDefines what a notice to appear must specify, including the time and place of the proceedings.
- Pereira v. Sessions, U.S. Supreme CourtHolds that a document omitting the time and place does not trigger the stop-time rule.
- Niz-Chavez v. Garland, U.S. Supreme CourtHolds that the required information must come in a single document rather than in installments.
- Barton v. Barr, U.S. Supreme CourtAddresses the offense prong as applied to a lawfully admitted permanent resident.
- 8 C.F.R. § 1003.23 — Reopening or reconsideration before the immigration courtCarries the same eligibility cutoff into motions to reopen for cancellation of removal.
Metro Law Advisors is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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