The Supreme Court has spoken.
Immigration officers can no longer place someone in immigration court hearings to face removal charges without telling them where and when to appear.
In a simplified nutshell, that’s what the Supreme Court decisions in Pereira v. Sessions and Niz-Chavez v. Garland stand for.
Merely tagging an immigrant for possible deportation is no longer sufficient to trigger the stop-time rule when the Department of Homeland Security begins proceedings against them.
“If the Government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify the time or place of the removal proceedings,” Justice Sotomayor wrote in Pereira, “does it trigger the stop-time rule? The answer is as obvious as it seems: No.”
What Is The Stop-Time Rule?
The Stop-Time Rule defines how continuous residence or continuous physical presence are calculated in cancellation of removal cases.
To qualify, before being served with a Notice To Appear (NTA) at immigration court:
(1) Lawful permanent residents are required to prove seven years of continuous residence in the United States.
(2) Undocumented immigrants must demonstrate they have ten years of continuous physical presence in the U.S.
The Stop-Time Rule can also be triggered by the date that an immigrant commits certain criminal acts. This issue was the subject of the Supreme Court decision in Barton v. Barr but it was not pertinent to the decisions in Pereira or Niz-Chavez.
The Impact Of Putative NTAs
The Department of Homeland Security has long asserted these types of notices, despite the omission of date, time, and place, vest the immigration court with jurisdiction – the judicial authority – to decide your fate, whether you should be allowed to remain in the U.S. or you should be sent back to your home country.
Following the Pereira decision, several immigration attorneys asserted the legal impact of these notices, referred to as putative NTAs, have implications broader than just the stop-time rule. Absent adequate notice regarding time and place of hearing, they argued that improperly DHS-issued NTAs do not confer jurisdiction to immigration courts.
Accordingly, immigration courts must terminate all hearings which are commenced with defective notices.
Unlike my colleagues, even though I generally agree with their assessment, I believe that curing this shortcoming is relatively simple. Despite the Pereira and Niz-Chavez rulings, I do not think the absence of jurisdiction claim will affect judicial scrutiny in the long run.
Of course, in some cases, even those closed many years ago, motions to reopen will be successful on the basis of due process considerations. Yet, given the government’s long-standing fear of opening new floodgates in immigration law, implementation of a do-over process that obviates jurisdictional flaws of putative NTAs is likely.
To be clear, as an immigration appeals lawyer, I believe the Pereira and Niz-Chavez cases do provide many immigrants facing deportation at immigration court, especially in the short term, with an expanded opportunity to defend themselves.
The main beneficiaries are immigrants who have been seeking relief under cancellation of removal during the reign of flawed NTAs.
Sooner or later, the government will clean up its act. I’m not surprised it’s taking them so long.
Although, if the truth be told, DHS has long acted as if they stood above the law.
When A Notice To Appear At Immigration Court Is Not A Notice To Appear
To understand the Court’s ruling, imagine being invited to your nephew’s birthday party. All you are told is that it’ll take place at a local Chuck E. Cheese restaurant.
You were not told the time, date, or place.
Would you consider this a real invitation?
DHS does.
Or perhaps you’re invited to your cousin’s wedding. The only information provided is that it will be held at a nearby church.
You’re not told the time, date, or place.
Would you consider that a real invitation?
DHS does.
Contrary to common sense, immigration officials have long believed this type of notice was enough to invite immigrants to face deportation charges at immigration court.
Over the past several years, the vast majority of DHS-issued notices to appear lacked the date and time of future hearings.
As counsel for DHS responded, when asked how many NTAs omit the date and time of hearings, “almost 100 percent.”
No time.
No date.
Although unmentioned, in my experience as a Riverside immigration attorney, the majority of notices to appear during the past decade have also failed to specify a court location.
Niz-Chavez: Notice-By-Installment Does Not Cure Jurisdictional Deficiencies
Even after the Pereira decision the government did not see fit to incorporate the Court’s concerns into their daily procedures. Instead, they endeavored to short-change the NTA process in a different manner.
The DHS response was to address its original shortcomings by mailing a second document with the missing information to immigrants. In the government’s view, the combination of the two documents overcame the defective NTAs.
This approach enabled DHS to continue using the earlier date of service contained in the flawed NTAs to cut off immigrants’ eligibility for relief via cancellation of removal.
In the Matter of Bermudez-Cota, the Board endorsed the government’s attempt to offset the Supreme Court’s jurisdictional ruling. Over the course of the next two years, various courts adopted a similar notice-by-installment posture.
These decisions included BIA holdings in Matter of Mendoza and Matter of Capula-Cortes, as well as the Second Circuit in Banegas-Gomez v. Barr, the Sixth Circuit in Hernandez-Perez v. Whitaker, the Ninth Circuit in Karingithi v. Whitaker, and the 11th Circuit in Molina-Guillen v. U.S. Attorney General.
The Supreme Court in Niz-Chavez was not having it.
The Court’s majority did not find the government’s double standard argument for filing legal documents convincing.
Noting the government’s rigid argument to proper document filing by immigrants, the Court noted the government argument that “supplying so much information in a single form is too taxing” and more flexibility is needed, allowing officials “to provide information in separate mailings (as many as they wish) over time (as long as they find convenient).”
But as Justice Gorsuch explained, “Anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government’s affinity for forms. Make a mistake or skip a page? Go back and try again, sometimes with a penalty for the trouble.”
Hence, “If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”
A Notice To Appear, concluded the Court, means a single notice—not 2 or 20 separate documents.
How Does The Supreme Court Stop-Time Rule Help Immigrants At Immigration Court?
There are two distinct forms of Cancellation of Removal available to immigration in court proceedings that are affected by the Pereira and Niz-Chavez decisions.
Cancellation Of Removal For Non-Lawful Permanent Residents
First, like Pereira and Niz-Chavez, undocumented immigrants who apply, or have applied in the past, for cancellation of removal relief could benefit.
To be eligible as a non-lawful permanent resident, immigrants must demonstrate:
- Continuous physical presence in the United States for 10 years preceding the date of such application
- Good moral character during such period
- No convictions of certain criminal offenses
- Their removal would result in exceptional and extremely unusual hardship to the individual’s U.S. citizen or LPR spouse, parent, or child.
As discussed in Tips For Proving Cancellation Of Removal Hardship, demonstrating the requisite degree of suffering and loss by family members is most often the determining factor between winning and losing.
However, many times, immigrants are precluded from a day in court because they cannot meet the 10 continuous physical presence year requirement.
For example, in Pereira’s case, he entered the U.S. in 2000 with a six-month visitor’ visa but remained after it expired. In 2006 he was served with a putative NTA that lacked the date. place, and time of his immigration court hearing. He moved. He sent a change of address form, as required, to immigration officials.
In 2007, over a year later, he was sent a Notice of Hearing from the immigration court. It was mailed to the wrong address. Because he did not appear at his hearing, the judge ordered him deported on an in absentia basis.
In 2013 he was arrested for a motor vehicle violation. He was placed under immigration detention based on the 2007 court deportation order. Because he proved that he did not know about the hearing, the judge allowed him to reopen his case. He requested relief under cancellation of removal.
At his hearing, DHS argued that since the first Notice To Appear was served in 2006, he did not have the 10 years of continuous physical presence. The stop-time rule cut off the clock for counting at six years, from his entry in 2000 to the NTA Service in 2006.
The judge agreed with DHS, as did the Board of Immigration Appeals and the federal appellate court.
The Supreme Court did not.
Because the NTA issued in 2000 was defective, it did not apply to cut-off the period of Pereira’s continuous physical presence period. Rather, under the Court’s ruling, he had lived in the U.S. well over ten years.
Similarly, Niz-Chavez entered the United States in 2005 and in 2013 he was served with a deficient Notice To Appear. Removal proceedings were initiated against him. Because he lacked the requisite 10 years, he was ineligible to seek relief. An order of deportation was issued.
In short, the Supreme Court holdings meant that both Pereira and Niz-Chaves were eligible to proceed under cancellation of removal.
Prefer Podcasts? Tune In To Hear Carlos Discuss The Supreme Court Pereira v. Sessions Decision On The Notice To Appear Stop-Time Rule
Cancellation Of Removal For Lawful Permanent Residents
Although the Supreme Court decisions pertain to a cancellation of removal application for an immigrant without lawful status, it should apply equally to a request for cancellation of removal filed by a lawful permanent resident.
To be eligible for cancellation of removal relief from deportation, a lawful permanent resident must prove:
To be eligible as a non-lawful permanent resident, immigrants must demonstrate:
- They were lawfully admitted for permanent residence for not less than five years
- Continuous residence in the United States for 7 years after admission
- No convictions for aggravated felonies
Here, immigrants who could benefit from the Supreme Court decisions include green card holders who may been detained by ICE officers for the commission of minor convictions. Upon apprehension, they were served with a defective Notice To Appear.
At the time, they were served, they had only lived in the U.S. for, say, 3 years, 4 years, 5 years, or 6 years and 11 months. Several months or years later, they are send a Notice of Hearing from the Immigration Court. At that time, they have exceeded the requirement of seven years’ continuous residence.
For many years, the government has utilized various arguments to cut off permanent residents’ ability to meet the five and seven year requirements.
The Pereira and Niz-Chavez cases remove one such mechanism for the DHS deportation toolbox.
Editor’s Note: DHS at times argues the stop-time rule applies to the five years of lawful permanent residence, in addition to the 7 years of continuous residence requirement. This is erroneous. There is no stop time provision for calculating the five years of lawful permanent residence. Instead, the period of permanent residence continues to accrue throughout the entire immigration court proceedings and, if any, BIA appeals process.
Instead of being legally prohibited from going forward with evidence demonstrating why they merit a grant of favorable discretion – and being granted a second chance to remain living in the United Stated – permanent residents whose history falls under this situation are now allowed to a day in court to present their case.
For both sets of immigrants – undocumented immigrants and permanent residents – the rulings in Pereira and Niz-Chavez are not guarantees of an outright victory.
But automatic defeat is prevented.
In both types of removal cases, immigrants should not waste the golden opportunity they have been given. Seeking qualified immigration trial counsel is still warranted.
By Carlos Batara, Immigration Law, Policy, And Politics
