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.  

“Stop-Time” Rule Not Triggered If Removal Case Was Not Commenced

In a recent case regarding "cancellation of removal”, the Board of Immigration Appeals  ruled that the language and structure of section 240A(d)(1) of the INA do not support giving “stop-time” effect to a notice to appear (NTA) that was served on an alien but was never used to commence proceedings. Consequently, a NTA served on the respondent in 1998 did not terminate the respondent’s continuous physical presence as a requirement for his application for cancellation of removal. 

In Matter of ORDAZ, the respondent is a native and citizen of Mexico who first entered the United States in 1990. On April 2, 1998, he was served with a NTA which advised him to appear before an Immigration Judge. However, because the notice was not filed with the Immigration Court in accordance with the regulation, removal proceedings were never formally started. On September 1, 2004, the Department of Homeland Security (DHS) served him with a second NTA and commenced the proceedings in the case. The respondent then applied for cancellation of removal, claiming that he has a strong cancellation application since he had continuously resided in the United States for ten years. The Immigration Judge denied the application, holding that the “stop-time” rule broke the period of continuous physical presence when he was served with the first NTA in 1998.

Foreign nationals who are deportable from the United States may still be able to stay if are eligible for some form of relief from removal. “Cancellation of removal” is one such relief application. The main purpose of cancellation of removal is to allow longtime residents of the U.S. with family ties and equities a way to remain here despite their transgressions. When a non-resident of the U.S. applies for cancellation, he must establish that he  has continuously resided in the United States for at least ten (10) years.  According to the “stop time” rule, accrual of the continuous physical presence stops when the non-resident was served with an NTA, or when the individual commits a crime that triggers the stop-time rule.

The court first reasoned that the language and structure of section 240A(d)(1) of the Act do not support giving “stop-time” effect to a NTA that was served on a foreign national but was never served on the Immigration Court to start proceedings.  The reference to a NTA is merely “definitional in nature", which does not break a foreign's period of continuous residence or physical presence. The commencement of proceedings is a separate issue from the service of the notice to appear. The “stop-time” rule is triggered by the commencement of proceedings, not the service of the NTA. Perphaps more importantly, the BIA is concerned about the lack of opportunity for a foreigner to contest the charges in the NTA if removal proceedings were not commenced.  Such a result would go against the Congressional goals in creating cancellation of removal.

This is an important decision as it is not unusual for the Government to have served the NTA of a foreigner without actually commencing removal proceedings with the Immigration Court.  In these situations, the foreigner will be able to continue accruing time to meet the ten-year continuous physical presence requirement for cancellation of removal. 

Cancellation of Removal - Last Resort for Deportables

Foreign nationals who are deportable from the United States may still be able to stay if are eligible for some form of relief from removal. “Cancellation of removal” is one such relief application. It was created by Congress in 1996 to replace “suspension of deportation” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). 

The main purpose of cancellation of removal is to allow longtime residents of the U.S. with family ties and equities a way to remain here despite their transgressions.  It is a balancing test.  There are two main type of cancellation – one for legal residents and the other type for non-residents.

Cancellation of Removal for Non-Permanent Residents

Pursuant to INA §240A(b),  the Attorney General may cancel the removal of a non-permanent resident of the United States in any immigration status who-

1) Has continuously resided in the United States for at least ten (10) years; and

2) Has been a person of good moral character throughout this time; and

3) Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in INA §212(a)(2), §237(a)(2), or §237(a)(3); and

4) Establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a United States citizen or legal permanent resident.

The application form for this type of cancellation of removal is the EOIR-42B.

A non-LPR’s continuous physical presence ends either when the foreign national is served with a Notice to Appear (“NTA”) or when he has committed an inadmissible offense under INA § 212(a)(2) [moral turpitude crimes], or a deportable offence under §§ 237(a)(2) [moral turpitude crimes] or 237(a)(4) [security violations]. INA § 240A(d)(1).

Further, an absence from the U.S. of more than 90 days, or multiple absences totaling more than 180 days breaks the non-LPR’s period of continuous physical presence. INA § 240A(d)(2). 

Because of the ten-year physical presence requirement, this form of cancellation is sometimes known as "ten-year green card" in some immigrant communities.  However, it is important to understand that one cannot affirmatively apply for Cancellation of Removal to obtain a green card.  The only way a foreigner may apply for cancellation is when he or she is placed in removal proceedings, and as a defensive tactic, the person may request for cancellation as a relief application from deportation. Some foreign nationals, because they believe they have a strong cancellation application, actually request the Department of Homeland Security (DHS) to put them in deportation proceedings, so that they may have an opportunity to present their cancellation claim.  However, DHS policy generally does not allow that.

Cancellation of Removal for LPRs

Some people mistakenly think that once they are granted a U.S. green card, they will be allowed to stay forever.  However, even lawful permanent residents may be put in removal proceedings as a result of criminal convictions or other violations that render them deportable from the United States.

Pursuant to INA §240A(a), the Attorney General may cancel removal of  any LPR who

1) Has been an LPR for not less than five (5) years; 

2) Has resided in the United States for not less than seven (7) years in any status; and

3) Has not been convicted of an aggravated felony.

Under the "stop-time" rule of Sec. 240A(d), once a LPR is served with a Notice to Appear (formal charging document) or when he/she has committed an offense that makes them deportable and/or inadmissible, the accrual of the seven years of residence stops automatically. Note, the LPR’s permanent residence status is not tolled by either of these two events.

LPRs may use Form EOIR-42A to apply for cancellation of removal.

A Balancing Act

As mentioned above, the purpose of cancellation is to provide an opportunity for longtime U.S. resident to remain here despite their transgressions.  An application for cancellation is usually filed with an immigration judge, who must consider all the facts and circumstances of the case and make a decision.  Equities such as family ties, community ties, rehabilitation, employment history, health of the applicant and his family members, value to society, volunteer services, tax records, property in the U.S. etc., must be weighed against the negative factors such as the seriousness of the offense, number of violations, reasons for the violations, driving records, and any other unfavorable items. 

For non-LPR cancellation, applicant must also establish that their close members will suffer “exceptional and extremely unusual” hardship. This is a significantly more restrictive standard than the old “extreme hardship” standard in the previous suspension of deportation cases.

The BIA has held that the hardship suffered must be something “substantially beyond” the hardships ordinarily associated with a person's ordered departure from the United States. See Matter of Monreal, 23 I. & N. Dec. 56 (2001).  However, the Board also held that the new hardship standard should not be construed so restrictively that only a handful of applicants will ever qualify for relief. See Matter of Recinas, 23 I. & N. Dec. 467 (BIA 2002).

What is clear is that cancellation is an extraordinary relief and the last resort for a non-citizen who has committed removable offenses.  If removal is cancelled, the applicant will be granted a green card and allowed to stay in the U.S. legally.   Careful preparation and proper legal representation are required for anybody who is applying for cancellation of removal. 

A "Wave-Through" is Legal Admission for Cancellation of Removal

A person "waved through" the U.S. border by an immigration officer constitutes an "admission in any status" for the purpose of applying for cancellation of removal, according to the Fifth Circuit Court of Appeals' holding in Tula-Rubio v. Lynch. 

Cancellation of removal is a form of immigration relief available to individuals who have been placed in removal proceedings by the Department of Homeland Security (DHS). Even legal residents of the U.S. may be placed in removal proceedings due to certain criminal convictions, security violations, or other serious immigration violations.   The requirements for lawful permanent residents (LPRs) are different from those of non-LPRs.  In both cases, a grant of cancellation means that the applicant may remain in the U.S. as legal residents. 

Pursuant to §240A(a) of the Immigration and Nationality Act (INA), cancellation is available for any LPR who

1) has been an alien lawfully admitted for permanent residence for not less than 5 years,

2) has resided in the United States continuously for 7 years after having been admitted in any status, and

3) has not been convicted of any aggravated felony.

Once a LPR commits a deportable offense or is served with a Notice to Appear (formally charging him/her with grounds of removal), the "stop-time" rule at Sec. 240A(d) would stop the person from accruing the required seven years residence.

The LPR in Tula-Rubio v. Lynch was in a passenger in a car that was waved through to enter the U.S. by an immigration officer.  The Board of Immigration Appeals (BIA) held that such an entry is not an "admission in any status” for cancellation of removal, since Tula-Rubio was not in any legal status when he was waved through. The Fifth Circuit Court disagreed.

The Court reasoned that even though there is no clear definition of the phrase “admitted in any status” in the INA, the word “admitted” is explained as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer" under the Immigration Act, which is exactly what happened to the LPR in Tula-Rubio.

Further, the Court held that the phrase “any status” does not impose additional requirements to the admission requirement. "Any status” means "all status and conditions", including somebody without any legal status.  Therefore the specific immigration status of the person being admitted is irrelevant. Consequently, Tula-Rubio’s wave-through admission satisfies this requirement, making him eligible for cancellation of removal relief under §240A(a) of the INA. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)