By Amanda C. Kwong and Nancy E. Miller
Being placed into Immigration Court Removal Proceedings begins with the issuance and service of a Notice to Appear, also referred to as an NTA. The law requires that the NTA state the time and place of the first hearing in court. In the interest of expediency, however, the Department of Homeland Security (DHS) has issued many NTAs stating that the date and place of that first hearing will be provided at a later time.
On June 21, 2018, the Supreme Court of the United States (“SCOTUS”) issued a decision, Pereira v. Sessions, that held that NTAs without a notice of time and place do not comply with law and are not valid. This is important because when a properly written NTA is properly served on the non-citizen, the time that the person is considered to be in the United States stops. This is known as the “stop-time rule”. This stop-time rule may prevent someone from being eligible for certain types of relief, including cancellation of removal for certain non-permanent residents (COR). But, if the NTA was not valid, the non-citizen can ask the court to terminate the case. If DHS issues a new NTA, the non-citizen will, obviously, have more physical presence at that time and may qualify for additional relief.
In reaching this decision, the SCOTUS looked to the language of the relevant statute and found that the text itself was unambiguous. Under the stop-time rule, any period of continuous physical presence is deemed to end when the noncitizen is served with the NTA under a section of law that details the information that the NTA should contain. The SCOTUS determined that the information required in the NTA should at the very least specify the time and place of the removal hearing. The Court also stated that the Notice to Appear consists of “three words…mean that, at a minimum, the Government has to provide noncitizens “notice” of the information, i.e., the ‘time’ and ‘place’ that would enable them ‘to appear’ at the removal hearing in the first place.” So, this decision means that many noncitizens who did not previously qualify for COR, may now be eligible for relief before an immigration judge based on this clarification of the requirements of a valid NTA and its impact on the stop-time rule. Countless others may be able to reopen their cases after having been ordered removed.
Other rules regarding continuous residence still apply. Where there is question as to whether a Respondent has met the 10-year requirement, there is a substantial evidence test based on the amount and type of evidence of residency provided. A parent’s residency cannot be applied to a child who does not meet the requirements. The noncitizen must also meet other requirements of good moral character (“GMC”) for the last ten years and has not been convicted of certain offenses. Because several years may have elapsed prior to this decision, the noncitizen may have accrued additional GMC that would be helpful to her case. Finally, the noncitizen must make a showing of “exceptional and extremely unusual hardship” to a US citizen or lawful permanent resident spouse, parent, or child. It can be any combination of medical, emotional, and financial factors, in addition to family and community ties, and country of chargeability conditions. The hardship is viewed in totality of circumstances, and an experienced immigration attorney can explain to the judge why the factors, when taken cumulatively, warrant a favorable exercise of discretion.
The stop-time rule applies not only to COR for noncitizens who had no status (which were the facts of the case), but also to COR for those who had permanent residence when removal proceedings started. In those cases, the requirements are slightly different, but the stop-time rule would still necessitate that the NTA provided the time and place. The requirements for COR for permanent residents are that they have been lawfully admitted for permanent residence for five years, resided in the US continuously for seven years after being admitted in any status, have no aggravated felony convictions, and warrant favorable exercises of discretion.
This decision may dramatically affect the immigration situation for those currently in proceedings as well as some who have existing removal orders based on an invalid NTA. Anyone who received an NTA without a specific time and place of hearing should consult a knowledgeable and experienced immigration lawyer immediately. Act now and see how this new case can impact your life.
