In an 8-1 ruling, the Supreme Court of the United States held that “a putative notice sent to a nonpermanent resident to appear at a removal proceeding that fails to designate a specific time or place for that proceeding does not end the continuous residence period calculation necessary for possible cancellation of the individual’s removal.”
An applicant for cancellation of removal must accrue ten years of continuous physical presence, along with certain other factors, to qualify for relief from removal. The statute states that when the Department of Homeland Security (DHS) issues a notice to appear (“NTA”) for removal proceedings, the NTA stops the accrual of a non-citizen’s ten years of continuous physical presence.
However, 8 U.S.C. 1229(a), defines the NTA as a notice that provides specific information, including “the time and place at which the proceedings will be held.” In practice, a huge majority of NTAs that are served on non-citizens to initiate removal proceedings never include the time and place of the removal proceedings.
Pereira was shy of the ten year continuous residence requirement when he received a notice from the DHS placing him in removal proceedings. Given that Pereira’s NTA did not contain the time and place of the removal proceedings, the Supreme Court held that the issuance of an NTA to him did not trigger the stop-time rule, which rendered him ineligible for cancellation of removal. Therefore, even after receiving this deficient notice, Pereira continued to accrue time towards presence in the United States. As such, Pereira should be able to reopen his immigration court case and apply for cancellation of removal, which if granted, would give him lawful permanent residence status.
This ruling could have huge ramifications for thousands of individuals, including persons who are currently in proceedings and persons who have been ordered deported. If the Supreme Court defines an NTA as a document that must have the time and place of proceedings in all circumstances, most people in removal proceedings now can challenge the NTA as deficient and move to terminate proceedings.
While the DHS can always file a new and corrected NTA, it does buy a person in removal proceedings time, and may help tremendously with case completion rates, a purported goal of the Department of Justice.
We look forward to using this new decision to assist as many people as possible.