By Attorney Ben Loveman
While the Trump Administration has continued to make life difficult for aspiring immigrants, recent developments from the Supreme Court and the Ninth Circuit Court of Appeals provide new hope for some persons in removal proceedings and, even for some people who have already been ordered removed. These new rulings are so significant that we urge all persons in removal proceedings, with cases on appeal, or with final deportation (removal) orders to see an immigration attorney to discuss the potential impact to their case. The government revealed during litigation of these cases that there are likely hundreds of thousands of people who might benefit. So, what are these new rulings and how can they impact you or your loved ones’ removal proceedings or deportation order?
In short, the new rulings create a potential pathway to lawful permanent residency (green cards) through a form of relief from removal (Cancellation of Removal) for persons who were not thought to be eligible previously. Persons in removal proceedings might now be able to apply; persons with appeals or final orders of removal, even those who have been physically removed from the country might now be able to file motions seeking to remand or reopen their cases.
Before turning to the specifics of the rulings and how they might be harnessed to secure relief or reopen cases for those previously deported, it is useful to review the requirements to be eligible for Cancellation of Removal. Cancellation of Removal (“COR”) is a defense to removal proceedings. Removal proceedings (formerly known as deportation proceedings) are initiated when the government serves the person with a document known as a “Notice to Appear” (NTA). There are two varieties of Cancellation of Removal, one for persons who hold permanent resident status (LPR COR), and one for persons who never held permanent resident status “Non-LPR COR”).
LPR COR is available to persons who have resided in the U.S. for 7 years prior to the service of a NTA (or conviction for certain offenses), have been LPR’s for at least 5-years, who have not been convicted of an aggravated felony, and who show that they are deserving of relief as a matter of discretion. Non-LPR COR is available to persons who have continuously resided in the United States for ten-years prior to issuance of an NTA, has been a person of good moral character for ten-years preceding the date the application is heard, has not been convicted of certain crimes, and who establishes that deportation would result in exceptional and extremely unusual hardship to a U.S. citizen or LPR parent, child, or spouse.
While the requirements for each are different, they both share a common rule concerning accrual of time toward eligibility: the statute says that time stops upon service of an NTA. For this reason, the rule is known as the “stop-time” rule. With this background we can turn to the impact of the recent decisions as they relate to this “stop-time” rule.
The first ruling came from the Supreme Court of the United States in Pereira v. Sessions. The Court held that the NTA in that case was not in fact an “NTA” for the purposes of the “stop-time” rule because the NTA did not contain all of the information required under the law to constitute an NTA. Thus, Mr. Pereira, who had been in the U.S. less than 10-years prior to the issuance of the NTA was therefore found to be eligible to apply for Non-LPR COR. The BIA ruled that, even where an NTA is defective, it could be cured by issuance of the required additional information in a subsequent notice of hearing and this would then trigger the “stop-time” rule. However, the Ninth Circuit Court of Appeals rejected this analysis in Lorenzo Lopez v. Barr and ruled that the “stop-time” rule can only be triggered by service of a valid NTA.
For those persons residing in the Ninth Circuit Court of Appeals (California, Oregon, Washington, Montana, Idaho, Nevada, Arizona, Alaska, Hawaii, and CNMI), this means that they may be able to harness this new rule to seek relief through Cancellation of Removal even though they might have thought they were ineligible previously.
We recommend that if you or your loved one is in removal proceedings, has a case on appeal to the Board of Immigration Appeals or Circuit Court of Appeals, or even has a final order of removal, you can take action to speak with a reputable immigration attorney to determine if the interpretation of the “stop-time” rule might create a new pathway to relief in your case.
