Triggering of the §1182(h) Waiver Stop-Time Rule Upon Initiation of Proceedings: Niz-Chavez Does Not Apply

Introduction

Nakia Courtney Hamilton, a Jamaican national and lawful permanent resident of the United States, found himself subject to an in absentia removal order following his 2014 Florida conviction for aggravated battery with a deadly weapon. Over the course of several years, Hamilton filed three motions to reopen his proceedings in order to secure immigration relief—first, adjustment of status through marriage to a U.S. citizen; second, asylum and a second reopening; and third, a request to pursue a §1182(h) criminal‐waiver application. The Board of Immigration Appeals (BIA) denied the third motion as both untimely and numerically barred, concluding that the Supreme Court’s intervening decision in Niz-Chavez v. Garland did not alter the timing or jurisdictional trigger for §1182(h) relief. Hamilton petitioned this Court of Appeals for review of that decision.

Key issues presented:

• Whether the stop‐time rule in 8 U.S.C. §1182(h) is triggered only by service of a fully compliant Notice to Appear (NTA) under 8 U.S.C. §1229(a), as interpreted in Pereira and Niz-Chavez, or instead by the “initiation of proceedings” when an NTA is filed with the immigration court.
• Whether Niz-Chavez created an “extraordinary circumstance” justifying equitable tolling of the numerical and temporal limits on motions to reopen.
• Whether the BIA afforded reasoned consideration to Hamilton’s statutory and equitable arguments in denying his motion.

Summary of the Judgment

The Eleventh Circuit unanimously denied Hamilton’s petition for review. The Court held:

1. Section 1182(h)’s stop‐time rule—denying waiver relief to any alien who has not “lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien”—is triggered by the “initiation of proceedings” when the Department of Homeland Security files a charging document (the NTA) with the immigration court.
2. Unlike the stop‐time rule for cancellation of removal under §1229b(d)(1)(A), which expressly references §1229(a)’s notice‐to‐appear requirements, §1182(h) contains distinct trigger language that does not incorporate §1229(a). Therefore, Niz-Chavez—which addressed §1229b(d)(1)(A)’s stop‐time rule—has no bearing on the operation of §1182(h).
3. Because Hamilton’s NTA was filed with the immigration court on February 12, 2015—within seven years of his lawful admission—the stop‐time rule under §1182(h) applied at that date, rendering him ineligible to satisfy the seven‐year residency prerequisite for a §1182(h) waiver. Consequently, his third motion to reopen was untimely and successor barred.
4. The BIA’s explanation—that the statutory language of §1182(h) is materially different and that Niz-Chavez does not create a new basis to reopen—constituted reasoned consideration. No abuse of discretion occurred.

Analysis

Precedents Cited

• Pereira v. Sessions, 585 U.S. 198 (2018): Held that the cancellation‐of‐removal stop‐time rule under 8 U.S.C. §1229b(d)(1)(A) is triggered only by service of a single NTA containing all the information required by §1229(a)(1), including time and place of the hearing.
• Niz-Chavez v. Garland, 593 U.S. 155 (2021): Extended Pereira by emphasizing that the term “a notice to appear” conveys the singular requirement of a single, comprehensive document under §1229(a). A supplemental notice cannot cure a defective NTA.
• Campos-Chavez v. Garland, 602 U.S. 447 (2024): Addressed the standard for rescission of removal orders under §1229a(b)(5)(C)(ii). The Supreme Court confirmed that even when an NTA lacks §1229(a) information, proceedings can be validly “initiated,” and an in absentia order sustained, so long as the Government later furnishes proper notice under §1229(a)(1) or (2).
• Perez-Sanchez v. U.S. Attorney General, 935 F.3d 1148 (11th Cir. 2019): Clarified that the statutory filing requirements for an NTA are claim‐processing rules, not jurisdictional mandates, and that a non‐compliant NTA does not deprive an immigration court of subject‐matter jurisdiction.

Legal Reasoning

1. Textual Distinction Between §1229b(d)(1)(A) and §1182(h)
The Court emphasized that Congress used materially different words to trigger each stop‐time rule. Section 1229b(d)(1)(A) applies “when the alien is served a notice to appear under section 1229(a).” By contrast, §1182(h) applies to any alien who has not “lawfully resided continuously … for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien.” Because §1182(h) makes no reference to §1229(a) or “notice to appear,” there is no textual basis to import the single‐document requirement from Niz-Chavez.

2. Ordinary Meaning of “Initiation of Proceedings”
Turning to ordinary‐meaning tools, the Court consulted contemporaneous dictionaries. “Initiate” means simply “to set going; begin,” and “initiation” means “the act of beginning.” Proceedings therefore commence when the Government files the charging document (NTA) with the immigration court under 8 C.F.R. §1003.14—regardless of the NTA’s completeness under §1229(a).

3. Regulatory Framework
Federal regulations confirm that “charging document” need not track §1229(a)’s content requirements. 8 C.F.R. §1003.15 defines the contents of an NTA filed with the court, and §1003.18 obligates the court to schedule the hearing and notify both parties. This regulatory scheme demonstrates that filing an NTA—even one omitting date/time—validly “initiates” proceedings for §1182(h) purposes.

4. Equitable Tolling Inapplicable
To equitably toll the 90‐day/one‐motion rule, an alien must show diligence and an “extraordinary circumstance.” Hamilton’s reliance on Niz-Chavez fails because that decision has no bearing on §1182(h)’s stop‐time rule. Without a new rule of law triggering a reopened eligibility window, no extraordinary circumstance exists to toll the filing deadline or numeric bar.

Impact

1. Clarification of §1182(h) Trigger
The decision firmly establishes that the §1182(h) waiver eligibility clock stops upon official initiation of removal proceedings—i.e., the filing of the NTA—rather than upon service of a fully compliant NTA under §1229(a). Immigration judges and the BIA may rely on this settled rule to assess §1182(h) eligibility without extending Niz-Chavez beyond §1229b’s context.

2. Limit on Equitable Tolling Claims
Aliens seeking to toll the motion‐to‐reopen deadline based on intervening Supreme Court decisions must identify a decision that directly affects their statutory eligibility. Decisions construing stop‐time provisions for cancellation of removal (§1229b) will not justify tolling in criminal‐waiver contexts (§1182(h)).

3. Regulatory Consistency
The ruling reinforces the distinction between statutory timing rules and regulatory mechanisms for notice and scheduling. It upholds the non‐jurisdictional nature of notice content requirements and leaves intact the practical burden‐shifting scheme under 8 C.F.R. §1003.18.

Complex Concepts Simplified

Stop-Time Rule

A deadline imposed by statute that “stops the clock” on an alien’s accrual of continuous residence for certain relief (e.g., cancellation of removal or criminal‐waiver eligibility) once a triggering event occurs.

Notice to Appear (NTA)

The charging document used to initiate removal proceedings. Statute §1229(a) lists required contents for an alien’s NTA; separate regulations (§1003.15) prescribe contents when filed with the immigration court.

Equitable Tolling

A legal doctrine that allows a late‐filed claim to proceed if the claimant diligently pursues relief and extraordinary circumstances beyond their control prevented timely filing.

Motion to Reopen

A request filed after a final removal order, asking the BIA or an immigration judge to reconsider the case based on new facts, arguments, or changes in law. Generally limited to one motion filed within 90 days of the order.

Conclusion

The Eleventh Circuit’s decision in Hamilton v. U.S. Attorney General clarifies that §1182(h)’s seven‐year continuous‐residence requirement for a criminal‐waiver is triggered by the initiation of removal proceedings via filing of the NTA, regardless of its completeness under §1229(a). By distinguishing §1182(h) from §1229b(d)(1)(A)’s stop‐time rule, the Court confines Niz-Chavez to the cancellation‐of‐removal context and forecloses claims of equitable tolling based on that decision. This precedent streamlines the analysis of criminal‐waiver eligibility and underscores the importance of precise statutory triggers in immigration law.