On June 21, 2018, the Supreme Court issued an extremely important decision with potentially large-scale ramifications for thousands of people in removal proceedings. In Pereira v. Sessions, the Court held that the stop-rule governing continuous presence for cancellation of removal cases is not triggered by service of a notice to appear that does not specify the time and place at which removal proceedings are to be held.
Loosely known by its misnomer “the ten year law” in some immigrant communities, cancellation of removal for non-permanent residents is one of the most sought-after forms of relief in immigration court, with a grant conferring permanent residence. However, there are numerous eligibility requirements, including but not limited to ten years continuous physical presence in the US immediately preceding the date of application for cancellation. Under the stop-time rule, continuous presence will be deemed to stop upon a number of triggering events, one of them being the service of a Notice to Appear (“NTA”) under 8 USC 1229(a). As discussed in a previous entry, a Notice to Appear is essentially a charging document prepared by the government that contains certain allegations and states the basis of a respondent’s removability. As a practical example, an undocumented person who has been served with an NTA after nine years of being here would be precluded from cancellation of removal.
This has literally happened to thousands of people, despite the fact that vast majorities of putative Notice to Appears fail to specifically designate and time and place at which removal proceedings shall be held, as required by section 1229(a). Instead, the NTAs commonly state that the time, place, or date of the initial hearing is “to be determined.” Using a common-sense, literal reading of the statute, the Supreme Court held that since such notices do not fairly apprise the noncitizen when and where the removal proceedings will be held, the charging documents are not Notices to Appear as referred to in the statute and therefore do not trigger the stop-time rule. This is a momentous ruling given that nearly all NTAs issued within the last few years do not specify the date, place, or time of the first master calendar hearing. Under the Supreme Court’s holding, these deficient notices do not stop the clock for cancellation of removal physical presence. Individuals who were previously deemed ineligible for cancellation based on continuous presence may now potentially revisit the issue, as the clock may still be running.
This decision potentially benefits not only people currently in removal proceedings but also those who may have already been ordered removed. There may be viable grounds to reopen proceedings as well as reconsider previous rulings. Even more importantly, the decision has set the government on its heels and will likely arrest its rampant practice of arbitrarily putting people into the system without affording them basic, essential information. Although the decision arose out of the stop-time context, there is no language in the holding that explicitly limits it to stop-time applications. There may be a valid argument that according to the Pereira, such Notice to Appears (ones that fail to list a specific date, time, or place) are per se defective, and grounds for termination of proceedings. How such arguments will play out before overwhelmed immigration court judges remains to be seen in the next few weeks. Stay tuned.