On April 29, 2021, the U.S. Supreme Court issued Niz-Chavez v. Garland, 141 S. Ct. 1474
(2021), holding unequivocally that a Notice to Appear (NTA)—the charging document that
commences immigration court removal proceedings—must contain the time and place of the
hearing in a single document in order to trigger the stop-time rule in cancellation of removal
cases, and that a subsequently-issued hearing notice does not stop time if the NTA did not
include the required information.
Mr. Niz-Chavez entered the United States in 2005. In 2013, DHS served him an NTA that did
not list a time or place for his initial hearing. Two months later, Mr. Niz-Chavez received a
hearing notice stating the time and place of his hearing. Mr. Niz-Chavez applied for withholding
of removal and protection under the Convention Against Torture, which the IJ denied. Mr. NizChavez appealed to the BIA, also requesting that the BIA remand to the IJ so that he could apply
for non-LPR cancellation of removal based on Pereira. The BIA denied Mr. Niz-Chavez’s
motion to remand and the Sixth Circuit subsequently denied Mr. Niz-Chavez’s petition for
review, holding that the stop-time rule was triggered when the government had finished
delivering all of the information required by INA § 239(a)(1), which occurred when Mr. Niz Chavez received his hearing notice.
The Supreme Court then reversed the Sixth Circuit. The Court found that the plain language
of INA § 239(a)(1)—which uses the indefinite article “a” when referring to “a ‘notice to
appear’”—leaves no room to permit a second document to cure the defect. Reversing the Sixth
Circuit’s decision, the Court concluded that “the government must issue a single and
comprehensive notice before it can trigger the stop-time rule.”
The U.S. immigration system has been in need of reform on a variety of fronts—from the challenges facing those in the country without documentation to the need for fairer asylum laws, to often-inefficient processing of employment-based immigration benefits—and is crying out for common-sense solutions. Sadly, no immigration legislation has passed both houses of Congress since 2005, and the outcome of the 2016 presidential and congressional elections has exacerbated an already taxed system.
For physicians, several new government policies—both proposed and already implemented—can cause serious consequences and derail genuine attempts to immigrate lawfully to the United States. Because these changes largely are policy-based—i.e., the government decided to apply the law differently than it had before, and were not created by regulation or legislation—they have escaped close public scrutiny leaving many affected individuals unaware of them or at least unaware of their possible impact.
The government’s policy changes largely are justified as implementing the Buy American, Hire American (BAHA) Executive Order, which President Donald Trump signed on April 18, 2017. BAHA directs all federal agencies that deal with immigration matters to review all immigration-related policies and regulations and to consider the effect of those rules and policies on American workers.
Under the new policy, USCIS officers are mandated to issue an NTA when the denial of a petition or application leaves an individual without lawful status. USCIS has been implementing the new NTA memo in stages; so far, it applies only to applications that have been denied, such as I-539s and I-485s, but broader implementation is planned. In addition, USCIS says it will delay issuance of an NTA for enough time to allow an individual to move to reopen the denied case in case an error was made. But the bottom line is that the consequences of a denial are greater than ever.
The consequences of the NTA memo make the other policy memorandum from the summer of 2018 even harder to swallow. Past USCIS policy required officers to issue a request for evidence (RFE) or notice of intent to deny (NOID) before denying a petition or application in order to afford the petitioner and beneficiary an opportunity to cure whatever defect(s) the officer found.
As an immigration attorney, I remain ever vigilant in staying apprised of the government’s policy changes.