The opinion of the court was delivered by: Chin, District Judge.
Petitioner Jenny Lee Henry seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, vacating her order of removal and
declaring her eligible to apply for a cancellation of removal
pursuant to § 240A of the Immigration and Nationality Act (the
"INA"), 8 U.S.C. § 1229b, and a waiver of removal pursuant to
INA § 212(h), 8 U.S.C. § 1182(h).
Pursuant to INA § 237, an alien who has been convicted of two
crimes of moral turpitude not arising out of a single scheme of
criminal conduct is subject to removal. See
8 U.S.C. § 1227(a)(2)(A)(ii). Petit larceny historically has been
considered a crime involving moral turpitude. See Brett v.
INS, 386 F.2d 439, 439 (2d Cir. 1967), cert. denied,
392 U.S. 935, 88 S.Ct. 2304, 20 L.Ed.2d 1394 (1968); United States ex
rel. Ventura v. Shaughnessy, 219 F.2d 249, 251 (2d Cir. 1955).
Prior to 1996, certain lawful permanent residents ("LPRs")
otherwise determined to be deportable were entitled to apply to
the Attorney General for a waiver of deportation under INA §
212(c).*fn1 See 8 U.S.C. § 1182(c) (1990). To qualify for a
waiver under INA § 212(c), an alien had to have seven continuous
years of lawful residence in the United States. See id.
On September 30, 1996, Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act ("IIRIRA"),
which "altered many aspects of the immigration laws, including
the eligibility requirements for discretionary relief from
deportation." Rojas-Reyes v. INS, 235 F.3d 115, 120 (2d Cir.
2000). "Removal" proceedings replaced what had previously been
called "deportation" and "exclusion" proceedings. Id. (citing
IIRIRA § 304(a)(3), codified at 8 U.S.C. § 1229a). Relief from
deportation — "suspension of deportation" — was replaced with a
new form of relief, called "cancellation of removal." Id.
(citing IIRIRA § 304(a)(3), codified at 8 U.S.C. § 1229b).
To qualify for a cancellation of removal under IIRIRA, an
alien must establish seven continuous years of residence in the
United States, just as under the repealed INA § 212(c). See
INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2). IIRIRA, however, also
added a "clock stopping" provision that had not existed with
respect to INA § 212(c). See INA § 240A(d)(1),
8 U.S.C. § 1229b(d)(1) (Supp. 2001). The clock stopping provision provides:
For purposes of this section, any period of
continuous residence or continuous physical presence
in the United States shall be deemed to end (A)
except in the case of an alien who applies for
cancellation of removal under subsection (b)(2), when
the alien is served a notice to appear under section
1229(a) of this title, or (B) when the alien has
committed an offense referred to in section
1182(a)(2) of this title that renders the alien
inadmissible to the United States under section
1182(a)(2) of this title or removable from the United
States under section 1227(a)(2) or 1227(a)(4) of this
title, whichever is earliest.
Id. (emphasis added). In other words, under this provision, an
alien's accrual of a period of continuous residence stops when
she is served with a notice to appear or when she commits an
Petitioner, a native of Guyana, entered the United States as
an LPR on November 11, 1984. (Gov. Return, Ex. A at 72).
Petitioner has at least three convictions for petit
larceny,*fn2 the first dated October 5, 1987. (Gov. Return,
Ex. A at 85). Her most recent convictions, based on guilty
pleas, occurred on January 10 and March 14, 2000. (Gov. Return,
Ex. A at 103, 105). As a result of these convictions, as she
concedes, petitioner is subject to removal.
Petitioner has not traveled abroad since her arrival in the
United States on November 11, 1984. (Gov. Return, Ex. A at 227).
Petitioner has five children, all born in the United States,
ranging in age from ...