Supreme Court Says Hearing Time and Date Must Be on NTA (Removal Charging Document)

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

 

TRUMP’S TRAVEL BAN DECISION

TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. HAWAII ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 17–965. Argued April 25, 2018—Decided June 26, 2018

Held: 1. This Court assumes without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular no reviewability or any other statutory no reviewability issue. See Sale v. Haitian Centers Council, Inc., 509 U. S. 155. Pp. 8–9. 2. The President has lawfully exercised the broad discretion granted to him under §1182(f) to suspend the entry of aliens into the United States. Pp. 9–24.

Why is the decision important? The decision is important for few reasons:

1.         Chief Justice Roberts wrote in the majority opinion that the ban “does not exceed any contextual limit on the President’s authority.”  Further, the Court held that The Court held that Section 1182(f) of the INA exudes deference to the President in every clause.  This means the Supreme Court found that a President banning indefinitely (as the Court held the ban is constitutional if necessary) all citizens from a particular country is constitutional and within the authority of the executive branch.
2.         The decision also held that the ban did not violate the First Amendment by denying freedom of religion to Muslims as the ban, even though the President stated, “Donald J Trump is calling for a total and complete shutdown of Muslims entering the United States.” The Court held that the only prerequisite of Section 1182(f) of the INA is that the “President ‘find’ that the entry of the covered aliens would be detrimental to the interests of the United States.’” the Court was satisfied that the President’s travel ban was based on the finding that denying entry to foreign nationals who could not be vetted with adequate information was in the national interest and that the travel ban is facially neutral toward.

In summary, the US Supreme Court has held that the executive branch has deference on immigration matters if the government can produce reasoning that is not discriminatory, even if there is contrary evidence.
Justice Sotomayor articulated the case for overturning the ban in her dissenting, stating:

“The United States of America is a nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle…”

Zero Tolerance Immigration Prosecutions – Families

The risks of crossing the Rio Grande and desert terrain, or hiding in stash houses or tractor trailers, are high for adults and even more deeply concerning for children.  Individuals who seek to enter the United States should do so at ports of entry.

The Attorney General directed United States Attorneys on the Southwest Border to prosecute all amenable adults who illegally enter the country, including those accompanied by their children, for 8 U.S.C. § 1325(a), illegal entry.

Children whose parents are referred for prosecution will be placed with the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR).

The information below provides information about:

  • Care for children
  • Family communication processes
  • The removal process

Prosecution/Removal Proceedings

Individuals who are apprehended by Border Patrol are taken to stations for processing.

  • All individuals, including both adults and children, provide biographical information and, in many cases, fingerprints.
  • Border Patrol agents enter information into appropriate electronic systems of records, including information about the claimed or confirmed family relationship.

Individuals who are believed to have committed any crime, including illegal entry, will be referred to the Department of Justice and presented before a federal judge.

After the conclusion of any criminal case, individuals will be transferred to U.S. Immigration and Customs Enforcement (ICE) for appropriate immigration proceedings.

Any individual processed for removal, including those who are criminally prosecuted for illegal entry, may seek asylum or other protection available under law.

Alien children may also present an individual claim for asylum and depending on the circumstances, may undergo separate immigration proceedings.

Communication and Coordination for Families

Children in HHS ORR custody are provided with appropriate care, including medical care, mental health care, and educational programs. Children are normally held in a temporary shelter or hosted by an appropriate family.

While in HHS care, ORR begins the process of locating a sponsor for the child for discharge from federal custody.

  • A sponsor can be a parent, adult sibling, relative, or appropriate home that meets criteria for the safety of the child and continuation of any immigration proceedings.  A parent who is prosecuted and later released can be a sponsor and ask HHS to release his or her child back into his or her custody.
  • In Fiscal Year 2017, 90 percent of the children were released to a sponsor who was either a parent or close relative.

HHS and DHS work to facilitate communication between detained parents and their children in HHS care.

  • ICE is dedicating a facility as its primary family reunification and removal center.
  • Parents and legal guardians who have been criminally prosecuted and are awaiting removal will normally be detained there.
  • All ICE facility staff who interact with parents will receive trauma-informed care training.
  • ICE is augmenting mental health care staffing, to include trained clinical staff, to provide mental health services to detained parents who have been separated from their children.
  • ICE will work with detained parents to provide regular communication with their children through video teleconferencing, phone, and tablets.

HHS and ICE can take steps to facilitate family reunification for purposes of removal, consistent with federal law where the parent or legal guardian is capable of providing for the physical and mental well-being of the child and comports with the wishes of the parent or legal guardian.

https://www.dhs.gov/news/2018/06/15/fact-sheet-zero-tolerance-immigration-prosecutions-families

DHS Announces Additional Visas for Foreign Workers to Assist American Businesses at Risk of Failing

Secretary of Homeland Security Kirstjen M. Nielsen announced on May 25, 2018, that an additional 15,000 H-2B temporary nonagricultural worker visas will be available for the Fiscal Year 2018. In this determination, Secretary Nielsen determined there are not sufficient, qualified, U.S. workers available to perform temporary non-agriculture labor to satisfy the needs of American businesses in FY18. This allocation is in addition to the 66,000 visas already issued this year. Secretary Nielsen made this decision after consulting with Secretary of Labor Alexander Acosta, members of Congress, and business owners.

“The limitations on H-2B visas were originally meant to protect American workers, but when we enter a situation where the program unintentionally harms American businesses it needs to be reformed,” said Secretary Nielsen. “I call on Congress to pass much-needed reforms of the program and to expressly set the number of H-2B visas in the statute.  We are once again in a situation where Congress has passed the buck and turned a decision over to DHS that would be better situated with Congress, who knows the needs of the program.  As Secretary, I remain committed to protecting U.S. workers and strengthening the integrity of our lawful immigration system and look forward to working with Congress to do so.”

The H-2B temporary nonagricultural worker program was designed to serve U.S. businesses unable to find a sufficient number of qualified U.S. workers to perform nonagricultural work of a temporary nature. Congress set the annual H-2B visa cap at 66,000. A maximum of 33,000 H-2B visas are available during the first half of the fiscal year, and the remainder, including any unused H-2B visas from the first half of that fiscal year, is available starting April 1 through September 30.

On February 27, 2018, USCIS determined that it had received sufficient H-2B petitions to meet the full FY 2018 statutory cap of 66,000.

In the FY 2018 Omnibus, Congress delegated its authority to the Secretary to increase the number of temporary nonagricultural worker visas available to U.S. employers through September 30, just as it did in the FY 2017 Omnibus. In the intervening time since the enactment of the FY 2018 Omnibus, the Secretary consulted with the Secretary of Labor on the issue, in accordance with Congressional requirements, and developed this rule.

The Supreme Court Declining to Hear DACA Case Before Lower Court Reviews

The U.S. Supreme Court on Monday declined to hear the Trump administration’s appeal of a federal judge’s ruling that requires the government to keep the Deferred Action for Childhood Arrivals program open for renewals.

The protections were due to start phasing out in March under the Republican president’s action, announced in September.

Under the Deferred Action for Childhood Arrivals (DACA) program, roughly 700,000 young adult, mostly Hispanics, are protected from deportation and given work permits for two-year periods, after which they must re-apply. Congress so far has failed to pass legislation to address the fate of the “Dreamers,” including a potential path to citizenship.

Under lower court orders that remain in effect, the Department of Homeland Security must continue to accept applications from the roughly 700,000 young people who are currently enrolled in the program, known as DACA, as well as individuals whose DACA grant has expired.

The lower court’s decision does not allow Dreamers to apply for DACA if they have never before applied for the initiative, including Dreamers who are aging into eligibility, couldn’t afford the filing fees, or are newly eligible for the initiative. These Dreamers remain at risk of deportation, as do the DACA recipients whose protections have expired while they wait for USCIS to process their renewal applications.

While Monday’s denial gives Dreamers a breath of relief while the case works its way through lower courts, Congress must still act immediately to pass the Dream Act.

Congress needs to stop kicking the can down the road and move forward on the Dream Act now. Dreamers across the country deserve the certainty that only permanent legislative protections can bring.DACA allows children of undocumented immigrants, known as Dreamers, to remain here if they were under 16 when their parents brought them to the U.S. and if they arrived by 2007.

Monday’s action by the Supreme Court leaves the DACA challenge pending, expected to be taken up by the 2nd and 9th Circuit courts.

 

 

 

IMMIGRATION ATTORNEY IN NEW YORK CITY, NEW YORK

ORDER OF SUPERVISION

If you have been placed on an order of supervision, then an attorney from our firm can provide you with substantial information regarding your situation. An order of supervision is issued when an individual has been released from physical custody of the Immigration and Customs Enforcement (ICE). The order marks a waiting period that precedes the obtainment of a final order of removal. This order is usually issued if it is unlikely that the alien can be removed in the near future.

WHAT MUST BE DONE DURING AN ORDER OF SUPERVISION?

If you are under an order of supervision, then there are specific actions that must be taken. This order requires you to periodically report to an immigration officer. It also may require you to obtain permission if you plan to travel out of state. If an order of removal is given, then you may have to obtain necessary travel documents. You will also have to keep the immigration officer informed of any personal information changes made, such as a change of address. There are also rare cases that require a GPS bracelet to be worn at all times. Being subject to an order of supervision is a time of limited freedom for those who are not yet required to be removed from the country.

EXPERIENCED ATTORNEYS IN NEW YORK CITY

If you have been released from the supervision of ICE, then it is important to obtain experienced legal representation for your order of supervision meetings. Our attorneys from will also help you challenge any conditions of your release if you believe such conditions disregard your rights. Our firm has more than 30 years of combined experience that can be used to your case’s advantage. If you fail to report to the immigration officer, then you could face severe penalties and your order of supervision can be revoked. For questions or assistance with these situation, contact our office at (212) 258-0713 today!

RESCISSION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

Press Release                                                            Date: September 5, 2017

1. WHY IS DHS PHASING OUT THE DACA PROGRAM? 
– Taking into consideration the federal court rulings in ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that program should be terminated. As such, the Acting Secretary of Homeland Security rescinded the June 15, 2012 memorandum establishing the DACA program.
2. WHAT IS GOING TO HAPPEN TO CURRENT DACA HOLDERS?
– Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.
3. WHAT HAPPENS TO INDIVIDUALS WHO CURRENTLY HAVE AN  INITIAL DACA REQUEST PENDING?
– Due to the anticipated costs and administrative burdens associated with rejecting all pending initial requests, USCIS will adjudicate – on an individual, case-by-case basis -all properly filed DACA initial requests and associated applications for EADs that have been accepted as of September 5, 2017.
4. WHAT HAPPENS TO INDIVIDUALS WHO CURRENTLY HAVE A  REQUEST FOR RENEWAL OF DACA PENDING?
– Due to the anticipated costs and administrative burdens associated with rejecting all pending renewal requests, USCIS adjudicate – on an individual, case-by-case basis- properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017. USCIS will reject all new requests to renew DACA and associated applications for EAD filed after October 5, 2017.
5- IS THERE STILL TIME FOR CURRENT DACA RECIPIENTS TO  FILE A REQUEST TO RENEW THEIR DACA? 
– USCIS will only accept renewal requests and associated applications for EADs for the class of individuals described above in the the time period described above.
6. WHAT HAPPENS WHEN AN INDIVIDUAL’S DACA BENEFITS  EXPIRE OVER THE COURSE OF THE NEXT TWO YEARS?  WILL INDIVIDUALS WITH EXPIRED DACA BE CONSIDERED  ILLEGALLY PRESENT IN THE COUNTRY? 
– Current law does not grant any legal status for the class of individuals who are current recipients of DACA. Recipients of DACA are currently unlawfully present in the United States with their removal deferred. When their period of deferred action expires or terminated, their removal will no longer be deferred and they will no longer be eligible for lawful employment.
Only US Congress has the authority to amend the existing immigration laws.
 
7.  ONCE AN INDIVIDUAL’S DACA EXPIRES, WILL THEIR CASE  BE  REFERRED TO ICE FOR ENFORCEMENT PURPOSE?
– Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requester meets the criteria of the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’s Notice to Appear guidance. This policy, which may be modified, suspended, or rescinded at any time with out notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
To be continued 

USCIS ALERTS THOSE AFFECTED BY HURRICANE HARVEY

USCIS offers immigration services that may help people affected by unforeseen circumstances, including disasters such as Hurricane Harvey.

The following measures may be available on a case-by-case basis upon request:

  • Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. Failure to apply for the extension or change before expiration of your authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond your control;
  • Re-parole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration of fee waivers due to an inability to pay;
  • Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Assistance if you were unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card); and
  • Rescheduling a biometrics appointment.

Note: When making a request, please explain how the impact of Hurricane Harvey created a need for the requested relief. Call the National Customer Service Center at 800-375-5283.

Returning To The United States Following Removal

Hundreds of thousands of people are deported from the United States every year. Most are unable to return to the United States on an immigrant visa, due to a variety of factors. Some lack a way to obtain a new immigrant visa, and others face grounds of inadmissibility for which they are unable to obtain a waiver.

In some cases, however, a non-immigrant visa may provide a way for a person to return to the United States following removal. If the applicant is able to meet the general requirements for such a visa, a waiver of inadmissibility may be sought under  the Immigration and Nationality Act (INA). Non-immigrant waiver are available for a broad range of inadmissibility grounds. Under certain circumstances, even an applicant with a “lifetime bar” (for example, a former lawful permanent resident deported due to an aggravated felony conviction) may obtain such a waiver.

Rescission of Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”)

Release Date:
June 15, 2017

On June 15, Department of Homeland Security Secretary John F. Kelly, after consulting with the Attorney General, signed a memorandum rescinding the November 20, 2014 memorandum that created the program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) because there is no credible path forward to litigate the currently enjoined policy.

The rescinded memo purported to provide a path for illegal aliens with a U.S. citizen or lawful permanent resident child to be considered for deferred action.  To be considered for deferred action, an alien was required to satisfy six criteria:

(1) as of November 20, 2014, be the parent of a U.S. citizen or lawful permanent resident;

(2) have continuously resided here since before January 1, 2010;

(3) have been physically present here on November 20, 2014, and when applying for relief;

(4) have no lawful immigration status on that date;

(5) not fall within the Secretary’s enforcement priorities; and

(6) “present no other factors that, in the exercise of discretion, make [ ] the grant of deferred action inappropriate.”

Prior to implementation of DAPA, twenty-six states challenged the policies established in the DAPA memorandum in the U.S. District Court for the Southern District of Texas. The district court enjoined implementation of the DAPA memorandum, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision, and the Supreme Court allowed the district court’s injunction to remain in place.

The rescinded policy also provided expanded work authorization for recipients under the DACA program for three years versus two years.  This policy was also enjoined nationwide and has now been rescinded.

The June 15, 2012 memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect.

For more information, see our frequently asked questions.

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