Yun-Xia Chen: A Removal Order Did Not Stop Her Clock, but Twenty Years Still Was Not Enough

A judge ordered you removed years ago. You never left. Your family grew up here. Then you learn that the Notice to Appear that started your case was missing the date and time of your hearing, and that the Supreme Court has said such a notice does not stop the ten-year clock for cancellation of removal. Has that clock been running this whole time, even after your removal order?

Yes, the Board of Immigration Appeals held. A final removal order does not stop the clock. Only two events do: service of a notice that complies with the statute, or certain crimes.

But ten years is one requirement among several, and this is where the woman who won that point lost her case. Matter of Yun-Xia Chen, 28 I&N Dec. 676, Interim Decision 4057 (BIA Jan. 11, 2023), denied her motion to reopen because she had not shown that her removal would cause enough hardship to her children, and had said nothing on why she deserved a favorable exercise of discretion. Years in the country opened the door. They did not get her through it.

Twenty years to the day

Yun-Xia Chen, a citizen of China, arrived on July 19, 2001. She tried to enter as a returning U.S. citizen, using a U.S. passport issued to someone else. The Department of Homeland Security charged her with falsely claiming citizenship and with seeking admission without valid documents.

Her Notice to Appear was personally served and named the San Pedro, California, immigration court. It left out the date and time of the hearing. The court later sent a hearing notice with that information, and she appeared. Her case moved to New York. She conceded she was removable and applied for relief. The immigration judge denied relief and ordered her removed to China. The Board dismissed her appeal on July 26, 2005, and that order became final.

She stayed. The Supreme Court decided Niz-Chavez v. Garland on April 29, 2021, holding that a notice missing the time and place of the hearing cannot be fixed by a later hearing notice. On July 19, 2021, twenty years to the day after she arrived, she asked the Board to reopen her case so she could apply for cancellation of removal for nonpermanent residents. Her motion came about sixteen years after the deadline had run, and she asked the Board to reopen on its own motion.

Her argument was simple. If her notice never stopped the clock, she had kept building continuous physical presence after 2005 and had well over ten years. DHS did not dispute that. It argued that she had not otherwise shown she was eligible.

Only two things stop the clock

The “stop-time” rule says that a period of continuous physical presence is “deemed to end” when the person is served a notice to appear under section 239(a), or when the person commits certain offenses, whichever comes first. The Board once read that rule to be satisfied by a notice with no date. The Supreme Court rejected that reading in Pereira v. Sessions. The Board then held that a later hearing notice “perfects” the defect, and Niz-Chavez rejected that too.

By the time Chen’s motion reached decision, three circuits had taken the next step. Quebrado Cantor v. Garland in the Ninth Circuit, Estrada-Cardona v. Garland in the Tenth and Parada v. Garland in the Fifth had each held that a final removal order is not on the statute’s list. The Board agreed, and quoted the Ninth Circuit: “The stop-time rule includes no mention of a final order of removal as a triggering event and it is not our role to rewrite the statute.”

The Board could have stopped there. It went on, because the neighboring provision seemed to point the other way.

An end is not a break

The Board has long treated the very next provision, section 240A(d)(2), as open-ended. That provision says a departure of more than 90 days, or more than 180 days in total, interrupts physical presence. Earlier decisions found other interruptions the text does not list: a departure “compelled under threat of the institution of deportation or removal proceedings” (Matter of Romalez), and a departure following a “formal, documented process” that ended in a finding of inadmissibility or refusal of admission (Matter of Avilez).

If the “breaks” provision is open-ended, why not the stop-time rule? The Board gave three reasons.

The titles differ. Section 240A(d)(2) is called “Treatment of Certain Breaks in Presence,” and “certain” signals there may be others. Section 240A(d)(1) is called “Termination of Continuous Period,” which sounds complete. The operative word differs too. Congress said the listed events end “any period” of presence, and in this setting the Board read “any” to mean “every.” That leaves no period for an unlisted event to end. And the legislative history, as the Board read it in Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000), separates actions that “end” presence from departures that only “break” it.

That second half matters as much as the first. Chen did not shrink the list of things that can interrupt presence. It reaffirmed the distinction and left Romalez and Avilez in place. Chen herself had not left since 2001, so no break was in question. Someone who left after being threatened with proceedings, or who was formally turned back at a border, is differently placed. In California cases, Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006), adds a condition for administrative voluntary departure: The record must contain some evidence that the person was informed of its terms and accepted them. A clean final-order argument does not cure a departure.

Why the motion still failed

A motion to reopen must show a likely case for the relief being sought. Winning on presence meant Chen had met one requirement. Cancellation also required, among other things, that her removal cause “exceptional and extremely unusual hardship” to a qualifying relative, here her U.S. citizen children. And it required the Board to be persuaded that she deserved relief as a matter of discretion.

On hardship, she said her children had no connection to the part of China she came from and would “invariably fail” in school in a country whose language and culture they did not know. She said she, her husband and the children would suffer if she were separated from them. She and her husband swore that the children “would suffer extreme hardship.”

The Board accepted that those were real kinds of harm. Its answer turned on proof: She “has not identified and documented heightened hardship beyond that which would normally be expected to occur in such circumstances.”

That sentence is the measure. As we read it, separation, schooling abroad and the loss of a parent’s support are what removal usually brings to a family. Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001), reads the standard to require harm “substantially beyond that which ordinarily would be expected” from removal. As we see it, the affidavits’ own wording illustrates the trouble. “Extreme hardship” is the older, lower standard that Monreal explains Congress deliberately replaced. A motion has to meet the standard that applies, with documents about these particular children.

Discretion was the second failure, and it was a failure of silence. She “has not addressed” whether she deserved a favorable exercise of discretion. The Board called this “particularly relevant” for two reasons: the time since the 2005 order, and the false passport. A person coming back years after a final order is asking the Board to weigh those years. The Board faulted her for not addressing that balance.

Together, these meant she had not shown “a reasonable likelihood that all statutory requirements for cancellation of removal have been met and that she would deserve a favorable exercise of discretion.” The motion was denied. The order stood.

What the Board did not decide

Two questions were in the case and were left open, because the failure on eligibility made them unnecessary.

The first is whether Niz-Chavez was a “fundamental change in law” as of July 2021, a recognized route to reopening on the Board’s own motion. The Board cited its earlier rulings for the point that such a change alone does not suffice: A person must also show likely eligibility for the relief.

The second is timeliness. A footnote notes that the motion was untimely, that neither side addressed the deadline except through the argument for reopening on the Board’s own motion, and that the Board did not need to decide whether any exception applied.

So Chen tells you the clock kept running. It does not tell you that a late motion resting on Niz-Chavez will be heard.

What California readers should check

Chen’s case ended up in New York. For a California reader, the final-order rule is on firmest ground. Quebrado Cantor v. Garland, 17 F.4th 869, 873–74 (9th Cir. 2021), is circuit law and came first. The government told the panel the result would be absurd, since a removal order should be impossible without a valid notice. The court answered that this was “entirely of the government’s own making.” It also identified the government’s fix: It “can ‘stop the clock’ at any time, simply by issuing a statutorily-compliant notice to appear.” Anyone counting on continuing accrual should check whether a compliant notice has ever been served in any proceeding, because on that reasoning the clock stops on the day one is.

One practical point follows. Quebrado Cantor sent the case back, even though the government said the motion was deficient for other reasons, because the court’s review is limited to the reason the Board gave. In Chen, the Board reached those other reasons itself. Expect it to do so again.

And where the case is still on direct appeal, change in law opens a wider door. Gonzalez-Lara v. Garland, 104 F.4th 1109, 1115 (9th Cir. 2024), held that the Board erred in refusing to consider a voluntary-departure request based on an incomplete notice merely because the person had not asked for that relief before the immigration judge. Motions to remand and motions to reopen, the court said, can be used to submit new applications, especially when the new application rests on a substantial change in the law. The court nevertheless denied her petition. It found the remand error harmless because she had not alleged facts showing the required good moral character and the means and intent to leave.

Review is much narrower once the deadline has passed and the only request is that the Board act on its own motion. The Ninth Circuit, in Lona v. Barr, 958 F.3d 1225 (9th Cir. 2020), applying Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016), reviews a denial of that kind only for “legal or constitutional error.” The Supreme Court’s decision in Wilkinson v. Garland, 601 U.S. 209 (2024), allows a court of appeals to review the application of the hardship standard to established facts as a mixed question, but that review is deferential, and Wilkinson arose from a direct petition after a merits decision. A person who reaches the Board only through its own-motion authority should plan to win there.

Before you file a motion on this theory

• Read the original Notice to Appear. Does it state the date and time of the first hearing? A later hearing notice does not fix an omission. If the notice was complete, the clock stopped when it was served.
• Count from the right date and look for the other trigger. Certain offenses end the period on their own. List every arrest and conviction with the date of the offense.
• List every trip abroad since arrival. A single departure of more than 90 days, more than 180 days in total, or a departure under threat of proceedings or after a formal refusal at the border can interrupt presence.
• File the application with the motion. A footnote records that Chen submitted a completed application, as the Board said 8 C.F.R. § 1003.2(c)(1) requires. That was not what sank her motion, and it should not sink yours.
• Prove hardship about the actual children, with documents. School records, medical records, country conditions for the specific place, what would actually happen to each child. A bare statement that hardship would be “extreme” does not document the heightened hardship the rule requires.
• Write a discretion section. Address the bad facts directly: the old order, the years since, the way you entered. Put the equities beside them, because the Board will notice if you do not.
• Explain why the motion is timely, or why the deadline should not apply. Chen left this open, and it may be the first thing your opponent raises.

Later developments

On June 22, 2026, a federal court in Texas vacated the 2024 rule titled Efficient Case and Docket Management in Immigration Proceedings, 89 Fed. Reg. 46,742, in a consent judgment in Texas v. U.S. Department of Justice, No. 7:26-CV-00070-O (N.D. Tex.), and on September 2, 2026, it denied proposed intervenors a stay pending appeal. The judgment calls the regulation the Administrative Closure Rule and speaks specifically only to administrative closure, but it declared the whole regulation contrary to law and vacated it, and the court’s August 21, 2026 order says that rule also addressed sua sponte reopening. The eCFR text captured on November 9, 2026, displayed as up to date through November 6, still lists the Board’s own-motion authority in 8 C.F.R. § 1003.2(a) and the immigration judge’s own-motion authority in 8 C.F.R. § 1003.23(b)(1). That published text does not by itself resolve the effect of the Texas judgment. An own-motion request should identify the authority relied on and explain how the judgment affects the request.