A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, July 2, 2018

Supreme Court Decision Changes Stop-time Rule For Cancellation of Removal

The Supreme Court of the United States issued their decision on Pereira v. Sessions on June 21, 2018. The outcome will impact many ongoing deportation cases by allowing more eligible applicants to apply for "cancellation of removal" to stay in the U.S.

Non-permanent residents who are illegally in the United States can be in "removal proceedings." This removal process is started when they receive a notice to appear (NTA) telling them to appear in court. There is one way to stop this process. If a non-permanent resident undergoing removal has lived in the United States for at least 10 years, he/she could be eligible for cancellation of removal and apply for permanent residence if they also meet other criteria. The accumulation of time toward these 10 years stops when an NTA is served -- this is called the "stop-time rule". This is mandated by section 1229(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The statute specifies certain requirements for the NTA to be valid, most notably that the NTA must include the time and place of the removal hearing.

Shortly after the above was passed, the Attorney General pushed a regulation that gave the DHS more authority to enforce NTAs and deportations. The rule adds that the time and place of the removal hearing will be provided "where practicable". Drawing authority from this regulation, the DHS has been serving these notices without an appointed time and place and invoking the stop-time rule based on the issuance of these NTAs. Typically, the immigration court would follow up with a hearing notice specifying the date, time and place for the deportation hearing to be held after a length of time that could have been critical to the respondent's accrual of the 10-year residence. 

Pereira v Sessions challenged this practice. Pereira came to the U.S. in 2000 and went out of status. He was served an initial NTA in 2006, and then was sent a hearing notice with the time and place of hearing in 2007, which he did not receive. Pereira claimed he is eligible for cancellation of removal in 2013 to the extent that the first NTA was deficient as it contained no time and place of hearing. The lower courts disagreed and the case went up to the U.S. Supreme Court. 

The Supreme Court held that a proper NTA must specify time and place. Otherwise, it is not a NTA as defined in legislation and does not trigger the stop-time rule. The majority opinion points out that section 1229(a) of the IIRIRA specifically reads that a NTA must provide time and place of the removal proceedings.  They also state that a "notice" to appear cannot sufficiently "notify" of the removal hearing if a time and place is not given.  A subsequent notice sent separately cannot cure this legal deficiency. 

Many non-permanent residents who have been served a NTA without a specific time and place will now be able to qualify for cancellation of removal as having lived in the country for 10 years. The Supreme Court decision clearly states that a valid NTA must contain the date and place of hearing.  The question then arises as to whether or not removal cases that were started by NTAs without the time and place of hearing may continue. DHS is arguing that this ruling only applies to the Stop-Time Rule.  More litigation is expected to clarify this important issue.

Finally, it is important to note that the 10 years of residence is only one of the requirements for applying for cancellation of removal.  There other legal requirements including proof that a close citizen or permanent resident family member must suffer from "exceptional and extremely unusual hardship" if the applicant is deported.  Generally speaking cancellation of removal is an extraordinary relief that is not granted frequently.  

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