In a precedent decision, the Board of Immigration Appeals determined that the service of a Notice to Appear on a non-citizen does not stop his accumulation of continuous physical presence for the purpose of applying for cancellation of removal for non-lawful permanent residents if the Notice to Appear is never filed with an immigration court.  Marcos Victor Ordaz-Gonzalez was originally served with a Notice to Appear in 1998, but the Notice to Appear was never filed with an immigration court, and thus, removal proceedings never commenced against Mr. Ordaz.  In 2004, the Department of Homeland Security (DHS) served Mr. Ordaz with a second Notice to Appear, and when Mr. Ordaz sought cancellation of removal in court, the Immigration Judge denied his application, finding that service of the 1998 Notice to Appear ended his accumulation of the requisite ten years of continuous physical presence.  

The Board of Immigration Appeals disagreed, noting that "[a]ffording 'stop-time' effect to 'any' notice to appear, regardless of whether proceedings were ever commenced on that basis, would potentially render an alien ineligible for relief on the basis of a charging document that was invalid or otherwise insufficient to support a removal charge as issued.  And if proceedings were never commenced, the alien would not have the opportunity to contest, or require the DHS to prove, the allegations and charges contained in the notice to appear. In fact, if we were to adopt the DHS’s approach, even in situations where an alien was provided such an opportunity, a notice to appear that he or she has successfully defended against would nevertheless have “stop-time” effect in later proceedings.  We are not persuaded that Congress intended such far-reaching consequences."

The full text of Matter of Ordaz can be found here: