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Supreme Court Ruling Offers Silver Lining for Cancellation of Removal, the problem with Deficient NTAs

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A recent Supreme Court decision may enhance the pool of individuals eligible for cancellation of their removal proceedings. Cancellation of removal is a form of relief granted to individuals unlawfully present in the United States, who have been physically present in the United States continuously for a period of no less than 10 years, immediately preceding the date of an application for cancellation of removal. Under 8 U.S.C. section 1229(b)(1)(A), however the period of continuous presence ends when the alien has been served with a notice to appear in immigration court, also known as an “NTA.” A notice to appear is a document issued by the government that initiates a noncitizen alien’s removal proceedings.

Section 1229(d)(1)(A) mandates that the United States government must serve noncitizens in removal proceedings with a written “notice to appear,” specifying the time and place where the removal proceedings are expected to take place.

However, the Department of Homeland Security has followed a regulation dating back to the year 1997 wherein the agency has failed to notify noncitizens of the time, place, or date of initial removal hearings “whenever the agency deems it impracticable to include such information.”

The Board of Immigration Appeals (BIA) has held that even though these notices do not specify the time and date of removal proceedings as required by 8 U.S.C. section 1229(b)(1)(A), the period of continuous presence is still considered to have ended at the time the notice to appear (NTA) is served on the noncitizen alien.

The 1997 regulation along with the BIA ruling has created problems for individuals who would otherwise qualify for cancellation of removal under section 1229(d)(1)(A) of the law, because a deficient NTA served upon a noncitizen would mean that the individual would continue to remain physically present in the United States, despite being served with a deficient NTA.

In the case, Pereira v. Sessions, Pereira, a Brazilian national entered the United States in 2000 and subsequently overstayed his visa. After being arrested for driving under the influence, in 2006, Pereira was served with a deficient NTA that failed to specify the date and time of his initial removal hearing, ordering him to appear for a removal hearing at a time and date to be determined in the future. It was not until 2017 that the Immigration Court mailed Pereira a NTA specifying the date and time for his initial removal hearing, but the notice was sent to the wrong address and returned as undeliverable. Pereira was then ordered removed in absentia for failing to appear in immigration court. In 2013, after being arrested for a motor vehicle violation, immigration court decided to reopen the removal proceedings against Pereira. It was at this time that Pereira sought to apply for cancellation of his removal proceedings, arguing that he had remained continuously present in the United States for more than 10 years, and that the 2006 NTA served upon him did not interrupt his presence under section 1229(d)(1)(A) because of its deficiency. Pereira’s case moved through the Courts, who disagreed with one another regarding BIA’s interpretation of the 1229 statute.

Pereira has finally had his day in court. In an 8-1 decision, the United States Supreme Court ruled in Pereira’s favor acknowledging that, “a putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under section 1229(a),” and so does not trigger the stop-time rule.” This means that a deficient NTA failing to specify the time or place of a noncitizen’s removal proceedings does not interrupt the noncitizen’s continuous presence in the United States.

What does this ruling mean for individuals who have remained in the United States for a continuous period of 10 years and meet all other requirements for cancellation of removal?

This ruling means that a deficient notice to appear, that does not specify the time and place of a removal hearing, will not interrupt the noncitizen’s continuous presence in the United States, and consequently will not prevent the noncitizen from seeking cancellation of removal. Noncitizens however must still prove that they have remained continuously present for at least 10 years prior to being issued a notice to appear document.

In sum, the Pereira ruling removes considerable obstacles for individuals seeking to cancel their removal proceedings on the basis of 10-years of continuous physical presence in the United States. From this point forward however, it is expected that the government will aggressively work to remedy any deficiencies when serving NTAs on individuals. Thus, individuals who received deficient NTAs before June 21, 2018, are the ones who will benefit most from this new ruling.

For more information on cancellation of removal please contact our office.