When the U.S. Supreme Court issued their most recent decisions last June, their decision in Pereira v. Sessions gave new hope to individuals that are currently barred from legally immigrating due to an old removal (deportation) order. In that decision, the Court ruled 8-1 that a Notice to Appear (NTA), the document that places an alien in removal proceedings and under the jurisdiction of an immigration judge, is not valid if it does not list a specific date, time and place when and where the alien, who is the subject of the NTA, must present him or herself in court.
This is potentially very good news to many thousands of people whose removal was ordered under such a defective NTA. The Supreme Court’s ruling offers an avenue for those with removal orders to seek reopening and termination of those orders. Further, it can be argued that the immigration court never had jurisdiction over their case in the first place. Therefore, their removal orders are also invalid just like the NTAs that placed them in removal proceedings.
In the Pereira decision, the alien seeking review by the Supreme Court argued that his NTA was defective, so he was eligible for relief, a 42B Cancellation of Removal, before the immigration court. This relief, if approved, can grant the alien lawful permanent resident status.
42B cancellation is available to certain non-permanent residents who have either a U.S. citizen or lawful permanent resident spouse, minor children or parents (known as “qualifying relatives), have no disqualifying criminal history which makes them ineligible for relief, and who have resided continuously in the United States for at least 10 years.
Filing an NTA with the court “stops time” for continuous residence in the United States. As a result, many aliens, like Pereira, who meet the first two requirements—no serious criminal history and a qualifying relative— are unable to meet the third requirement of 10 years or more of continuous physical presence in the U.S. because the NTA was issued before they hit the decade mark.
Pereira argued that because his NTA was defective, lacking a specific place and time to appear in court as required by regulation, his “clock” never stopped, and he continued to accrue time toward the 10 years required for 42B cancellation. Therefore, he argued, he was eligible at the time of his removal proceedings for relief. The immigration judge did not agree with Pereira’s contention and ordered him removed. Pereira appealed the judge’s decision to the Board of Immigration Appeals (BIA), which agreed with the immigration judge and dismissed Pereira’s appeal.
Pereira then filed a Petition for Review the BIA’s decision with the 1st Circuit, which agreed that the language in the statute governing the proper service of an NTA was ambiguous, but the court deferred to the BIA’s interpretation of the statute. Pereira’s next stop was the Supreme Court, which accepted the case for hearing before the nine justices.
As stated above, eight of the nine Supreme Court Justices agreed with Pereira. In their decision, issued on June 21, 2018, the Court found that an NTA for a removal hearing that does not specify the time and place of the hearing does not trigger the stop-time rule. Writing for the Court, Justice Sonia Sotomayor reasoned that an NTA that does not specifically state both “when” and “where,” as required by regulation, cannot reasonably be expected to result in a person appearing at their hearing.
The Court’s decision made it possible for Pereira to file a Motion to Reopen and/or Reconsider his removal order to seek termination of the proceedings against him or, in the alternative, to seek the 42B relief for which he argued he was eligible all along. For thousands of others, this ruling may make it possible to get a second chance at relief, such as 42B cancellation, which would not have been available to them at the time they were ordered removed by the immigration judge.
Perhaps many of those ordered removed have since married U.S. citizens or had U.S. citizen children, making them now eligible for new relief before the court. A Motion to Reopen or Reconsider based on a defective NTA, if in fact their NTAs were defective, may be the miracle they’ve needed to sort out their immigration status.
For those who would like to investigate this new avenue of relief, a quick check of their NTAs will reveal whether or not it was valid; the bottom left-hand side of the document should list a specific date and time to appear in court. However, if it reads “to be set” where the date and time should be included, the NTA is defective under the Pereira holding and may be the basis for a motion to the court or the BIA, whichever entity last had jurisdiction over the case. If individuals with old removal orders no longer have their NTAs, they can file a Freedom of Information Request (FOIA) with the Executive Officer for Immigration Review (EOIR) and/or ICE to obtain a copy.
Because the Pereira decision came down so recently, immigration practitioners (including immigration judges) are still uncertain about how the Supreme Court’s decision will be interpreted by the lower courts. At the moment, ICE attorneys are arguing that the Court’s decision was “narrow” in scope and applies only in the context of the “stop time” rule governing eligibility for 42B cancellation.
However, many immigration attorneys disagree; if an NTA is invalid because it lacks a specific date and time for a hearing, then it is invalid, period. If a defective NTA fails to “stop the clock” in the context of 42B because it was improperly filed and did not give the immigration judge jurisdiction over the alien charged, then it is defective across the board for all aliens said to be placed in proceedings by an alleged NTA.
It is important to review qualifying cases with defective NTAs and take action on them as soon as possible, while things are still in flux; waiting too long to file a Motion to Reopen or Reconsider and Terminate may jeopardize an alien’s ability to do so later.
If you think your order of removal, or that of a loved one, was issued in error due to a defective NTA, please do not hesitate to speak to an immigration attorney regarding your case.