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Notice to Appear Not Defective If Notice of Hearing Later Issued | Pereira Motion Update

| Sep 10, 2018 | Deportation, Immigration Court

Over the Labor Day weekend, the Board of Immigration Appeals (BIA) quietly released an important decision that has a significant impact on individuals hoping to file “Pereira motions.” In Matter of Bermudez-Cota, 27 I & N Dec. 441 (BIA 2018), the court held that a Notice to Appear that does not specify the time and place of a person’s initial removal hearing does not divest an Immigration Judge of jurisdiction so long as a Notice of Hearing specifying this information is later sent to the individual. In the case at hand, the respondent filed a Motion to Terminate arguing that his case should be dismissed in light of the Supreme Court’s decision in Pereira v. Sessions, in which the highest court in the land declared that a Notice to Appear lacking the required information (as to date, time, and place) does not stop the clock for purposes of calculating physical presence eligibility for cancellation of removal. After the decision came out, many attorneys also extrapolated from the Court’s clear language that such Notices to Appear were, in effect, not only defective for cancellation of removal purposes but defective per se. This gave birth to “Pereira motions” which have seen mixed results in New Jersey, with some judges granting and others, denying.

Now, however, that the BIA has spoken out on this issue, Motions to Terminate premised on Pereira may lose some of its force, especially if an individual has a received a Notice of Hearing containing information as to date, time, and place. (According to the BIA, subsequent receipt of a notice of hearing containing information as to the time and place cures the initial deficiency and does not render the Notice to Appear defective generally.) Unfortunately, even though the decision contradicts the unambiguous language in Pereira, this is what we are stuck with in New Jersey unless and until the Third Circuit or the Supreme Court rules differently. Note, however, that just as the BIA characterized the Supreme Court’s decision as “narrow,” Bermudez-Cota should also not be expanded beyond what it is saying. In other words, in cases where a respondent has not received a subsequent notice of hearing, this decision arguably does not undermine the holding of Pereira.

The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.