Last week, the Third Circuit issued an important precedential decision regarding the “stop-time rule” and cancellation of removal. In Orozco-Velasquez v. Attorney General, the Court held a defective Notice to Appear (“NTA”) did not effectively stop the clock for purposes of showing the requisite ten years physical presence for cancellation of removal. (According to our immigration laws, any period of continuous physical presence shall end when the alien is served with a Notice to Appear.) In the case, the government had initially served an NTA that not only listed the wrong location for the Court hearing, but lacked “fundamental, statutorily required information” necessary to give the alien reasonable notice of the charges against him and “the basic contours of the proceedings to come.” To be more specific, the notice did not inform him of the specific date and time of the removal proceedings, only that they were “to be set.” Nearly two years later, the government served a second NTA that listed the correct location and a specific time and date. In the course of litigation, Mr. Orozco-Velasquez submitted an application for cancellation of removal, which the government argued he was precluded from filing, due to the first NTA. The Judge agreed with the Department of Homeland Security.
Fortunately, for Mr. Orozco-Velasquez, the Third Circuit reversed the Immigration Judge and ordered that the case be remanded back to Immigration Court so that the cancellation of removal application could be considered. This is a significant ruling, considering the broken state of our immigration system and the alacrity with which the government seeks to deport aliens even though the dockets are seriously clogged. Within an immigration context, a deportation/removal hearing is tantamount to a death penalty case, where the stakes are so momentous. It only makes sense that before the government attempts to deprive an individual of his/her ability to stay here, that it adhere to its own regulations and rules. As the Court noted, “A Notice to Appear is not meant to be enigmatic.” It should inform and give the alien sufficient notice of what the charges are, and when and where the proceedings are to be held. The absence of such critical information not only leaves a person in the dark, but more importantly, legally handicaps the alien and prevents him/her from mounting an effective defense, or in the present case, applying for a crucial form of relief that will be the difference between a green card and a removal order. This decision may have far-reaching ramifications for those caught up and dragged into the system by technically deficient charging notices. It also should motivate immigration counsel to scrupulously examine everything, especially the Notice to Appear. It is one thing to strategically forgo contesting the Notice to Appear, and altogether another to miss significant holes in the government’s case that may give rise to relief.