Earlier last month, we wrote about USCIS implementing the new Notice to Appear Policy Memorandum released on June 28 of this year. According to a bulletin released late last week, the second phase of expansion is scheduled to take place November 19, 2018. On and after this date, USCIS will begin applying the new policy to the following types of applications upon denial:
On September 26, 2018, USCIS quietly announced that it will be implementing the June 28 updated guidance on issuance of Notice to Appears (NTAs). This will be an incremental roll out, with the new memo being applied to different types of cases at different stages. Effective October 1, 2018, the memo will be applied to "status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status." According to the bulletin, the new guidance will not be implemented with respect to employment-based and humanitarian applications and petitions at this time. The announcement also makes clear that USCIS will continue its current practice for NTAs regarding applicants with criminal records or where there are fraud or national security concerns.
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.
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.
Although it may not have generated much attention in the media, a very important precedential decision was issued by the Board of Immigration Appeals last month. Lawyers who practice deportation and removal defense certainly know about, or certainly, should. The decision is Matter of ORDAZ, 26 I & N Dec. 637 (BIA 2015) and it is especially relevant in these times given the seemingly endless delay of individuals having their day in immigration court. The decision concerns the "stop-time" rule and whether service of a Notice To Appear that does not result in commencement of removal proceedings effectively triggers the stop-time rule for purposes of cancellation of removal.