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
The US Supreme Court today decided to reinstate the second travel ban created by Executive order from President Trump. The ban halted any immigration to the US from six countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) and was to last for 90 days, while the government reviewed its procedures for vetting immigrants. Refugees were barred from the US for 120 days.
The ban was quickly stayed by lower courts in Hawaii and Maryland, following lawsuits. Today, however, the Supreme Court lifted the stays and said that it would hear full arguments when it reconvenes in the fall. By that point, of course, the issue may be moot as the 90 days will have expired.
The Supreme Court made an exception to the ban for “..... foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” In addition, "...the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the travel ban]" One question being raised by immigration lawyers is: who will decide whether there is a "bona fide relationship"?
In the unsigned opinion, the court said that a foreign national who wants to visit or live with a family member would have such a relationship, and so would students from the designated countries who were admitted to a U.S. university. The court also included workers with an offer of employment in the US, thereby allowing workers applying for H-1B, L-1, and other visas to come to the US.
We will monitor the implementation of this ban very closely. If you have any questions, please contact us directly.
More details here.
Full decision here.
On June 22, 2017, the US Supreme Court issued a decision that prevents a person from having their citizenship revoked because of a false statement, when that falsehood was to relevant to eligibility for citizenship.
In the case of Maslenjak v. U.S., the plaintiff - Divna Maslenjak - was originally from Bosnia and because a US citizen in 2007. It emerged that, in earlier immigration application, she had lied about her husband's involvement in the Bosnian conflict. When she completed the N-400, applying for US citizenship, she said "no" in response to the question about whether she had ever misrepresented anything to gain an immigration benefit.
The government argued that this lie justified revoking her citizenship, even though her telling the truth would have prevented her getting citizenship. In advocating for a very strict interpretation of the law, the government lawyers even agreed that minor falsehood, e.g. not disclosing a speeding ticket or membership in a legal, but potentially embarrassing group, was grounds to revoke citizenship.
The justices unanimously rejected the government’s position that it could revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings. Justice Kagan wrote "We hold that the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result."
There is no guarantee that Maslenjak will be able to regain citizenship. The case goes back to the lower courts which must decide whether her lies were, in fact, material to her citizenship approval. The significance of this case is that the Supreme Court has stated that the lies must be relevant, whereas the government argued that any misstatement, no matter how insignificant, was enough to revoke citizenship.
Full opinion here: https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf
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.