Practice Advisory: Strategies and Considerations in the Wake of Pereira v. Sessions
The U.S. Supreme Court held in Pereira v. Sessions that service of a defective Notice to Appear does not cut off eligibility for cancellation of removal. This practice advisory provides practitioners with strategies and considerations based on the holding and rationale in Pereira v. Sessions. CLINIC and the American Immigration Council drafted the original version of this practice advisory in 2018. CLINIC updated this practice advisory in December 2019.
Please note that since CLINIC updated this advisory, there have been two important developments in the Pereira landscape which are not included in the advisory. The Board of Immigration Appeals (BIA) issued the precedential decision Matter of Rosales, 27 I&N Dec. 745 (BIA 2020), holding that the immigration court is not deprived of jurisdiction even when the Notice to Appear fails to list the court’s address. Additionally, the Court of Appeals for the 9th Circuit has agreed to rehearing en banc in Lopez v. Barr 925 F.3d 396 (9th Cir. 2019) . In Lopez, the 9th Circuit had declined to defer to the BIA in Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019) which found that the Notice of Hearing “perfects” the Notice to Appear for purposes of invoking the stop-time rule in cancellation of removal proceedings. This area of law is developing rapidly so please be sure to perform your own legal research for any new developments since the issuance of this advisory.