On June 21, 2018, the US Supreme Court decided a case (Pereira v. Sessions) that could effect hundreds of thousands of people in the United States.
The case concerned a man from Brazil who entered the US in 2000 and overstayed his visa. He was arrested in 2006 for driving while intoxicated, and then placed into immigration proceedings.
Immigration proceedings are started when the Department of Homeland Security (DHS) issues a Notice to Appear (NTA) to the immigrant. If the government succeeds in its claim, the noncitizen is removed (deported) from the US.
As a defense to removal, a noncitizen may apply for "cancellation of removal." One of the requirements for cancellation is that the applicant have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application” for cancellation." 8 U. S. C. §1229(b)(1)(A).
However, the issuance of an NTA stops the 10-year clock from running. So, for example, a person who entered in 2000 and finally appeared before an immigration judge in 2014 would only have 6 years of continuous physical presence if the NTA was issued in 2006.
Regulations state that the NTA must state “[t]he time and place at which the [removal] proceedings will be held.” Due to the huge backlog of cases in immigration court, the vast majority of NTAs don't list a date, and simply list "TBD," instead of a specific date. This happened to the plaintiff, Pereira. Later, in 2007, a more specific NTA was sent to Pereira. However, it was sent to the wrong address and he didn't receive it (it was returned as "undeliverable").
In 2013, Pereira was arrested for a minor traffic violation and detained by DHS. In proceedings, he requested cancellation of removal and claimed that the initial NTA didn't stop the clock on his continuous physical presence because it didn't specify the time and date of his court appearance.
The Supreme Court agreed, holding 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 §1229(a),” and so does not trigger the stop-time rule."
Why is this ruling so important?
As a result of this decision, eligible immigrants living in the country without authorization who have received incomplete "notices to appear" can now explore applying for a 10-year cancellation of removal. Many (probably most people) currently in immigration proceedings may get their cases terminated because the NTA was never properly filed. This would certainly eliminate a lot of the immigration court backlog, but DHS would restart proceedings, using a correct NTA (with date, time, etc). This may benefit a client who needs more time to gather the evidence for a cancellation of removal case. Immigration lawyers are already reporting that judges in some jurisdictions are terminating cases based on the Pereira decision, just one day after the ruling.
Immigration lawyers are also considering reopening cases for people whose cases have ended, on the grounds that the original hearings were defective because there was never a properly-filed NTA.
This is a very important case for clients, and we will be monitoring the effect closely. For more information, please call Elaine Martin, Immigration Lawyer
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.