By: Jillian Blake, J.D.
Under a June 2018 Supreme Court decision, thousands of more people will qualify for a form of deportation relief known as cancellation of removal. The decision will affect certain people with removal orders and administratively closed removal proceedings, and potentially many more people facing deportation.
The Supreme Court held in Pereira v. Sessions that the time and date of the hearing must on be a key deportation charging document—the Notice to Appear (NTA)—to trigger the “stop-time rule.”
The “stop-time rule” governs how long a person is considered to have resided in the U.S. when he or she applies for cancellation of removal. People without permanent legal residence who are put in removal proceedings may apply for cancellation of removal if they have been living in the U.S. ten years, have U.S. citizen or legal permanent resident immediate relatives who would suffer “exceptional and extremely unusual” hardship if they were removed, can show good moral character, have not been convicted of certain crimes, and meet other requirements.
The time cancellation of removal applicants are considered to have resided in the U.S. is calculated starting from when they entered the U.S. and ending when the removal process legally begins—that is when served the NTA.
The NTA includes information such as the nature of the proceedings, factual allegations, and the charges of removability. The NTA may also include the time and place of removal proceedings but often does not.
In Pereira v. Sessions, the Supreme Court found that if an NTA does not include the time and place of removal proceedings it does not “stop the clock” for calculating the time of residence for cancellation of removal. The court reasoned that the legal definition of NTA includes time and date of hearing, so a document cannot be an NTA if it does not include this information. This ruling may be interpreted in immigration courts more narrowly, or could more wide-ranging implications.
People With In Absentia Removal Orders May Now Qualify for Cancellation of Removal
A major implication of the Pereira ruling is those within absentia removal orders may now have their cases reopened and apply for cancellation of removal. If, for example, you did not receive notice of your removal hearing and were ordered removed in absentia you may have your case reopened and apply for cancellation of removal if you have now been in the U.S. ten years and meet all other requirements for cancellation of removal. Previously, people in this situation would not have been able to apply for cancellation of removal if the original NTA was served less than ten years after they entered. If you are in this situation you must convince an immigration judge you didn’t receive notice of your hearing to have your case reopened and apply for cancellation of removal.
People With Administratively Closed Removal Proceedings May Now Qualify for Cancellation of Removal
If your case was administratively closed and your NTA did not include the time and date of your hearing, and you have now been in the U.S. ten years, you may have your case reopened to apply for cancellation of removal.
This could offer a new defense to deportation to people with administratively closed removal cases with Temporary Protected Status (TPS), which will end for many countries including El Salvador and Honduras in the coming years.
Those with Deferred Action for Childhood Arrivals (DACA) may also now qualify for cancellation of removal if their removal proceedings were administratively closed in the past and they have now been in the U.S. ten years and meet all other requirements. Many of these people did not qualify for cancellation of removal originally because they had not been in the U.S. ten years but have since accrued ten years of residency.
People With Less Than Ten Years’ Residence in the U.S. When Served an NTA May Qualify for Cancellation of Removal in Proceedings, During Appeal
If you had under ten years of residency in the U.S. when you were served an NTA, but that NTA states no time and place of the hearing, it will no longer trigger the “stop-time rule.”
This means you could potentially continue to accrue residency time towards the ten-year residency cancellation requirement while you are in removal proceedings. This may also apply to people with an appeal pending before the Board of Immigration Appeals (B.I.A.) or other court and complete ten years of residency during the process.
Court’s Decision Could Be Interpreted Broadly, to Allow for Termination of Removal Proceedings
Although the Supreme Court decision specifically states that its decision applies to the cancellation of removal “stop-time rule” it could have broader implications. Because the opinion states that a document is not an NTA if it does not include all its definitional elements–and the NTA is required to begin removal proceedings and give a judge the authority to decide the case—it could allow for termination of proceedings for people who received incomplete NTAs.
Because the Pereira decision is so new, no one can yet say how immigration judges will interpret it or how significant it will be. If you think you may qualify for cancellation of removal based on this decision, contact an immigration attorney to understand the benefits and risks or pursuing this form of relief.
Effective Date: Posted on June 21, 2018, at https://www.nolo.com/legal-updates/supreme-court-says-hearing-time-and-date-must-be-on-nta-removal-charging-document.html