The Supreme Court issued a decision in Pereira v. Sessions, No. 17-459, --S. Ct. -- 2018 WL 3058276 (U.S. June 21, 2018) on June 21, 2018, which could make cancellation of removal available to many noncitizens who were previously foreclosed from this form of relief. To qualify for cancellation of removal under INA § 240A(b), an applicant must: have resided in the United States continuously for 10 years; be a person of good moral character; not have been convicted of certain enumerated crimes; and demonstrate exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident family member. However, the “stop-time” rule under INA § 240A(d)(1) states that a noncitizen stops accruing continuous presence upon being served with a Notice to Appear, or NTA, initiating removal proceedings. The question in Pereira was whether an NTA that does not state the time and place of the hearing triggers the stop-time rule.
In an unusually unified decision, the Supreme Court held 8 to 1 that the plain language of the statute requires that an NTA specify where and when the hearing will take place. In Pereira, the respondent had been served with an NTA that only stated the date and time of the hearing were “to be determined.” During oral argument the U.S. government admitted that under current practice it fails to specify the time, date and location of the hearing on almost 100 percent of NTAs. Writing for the majority, Justice Sotomayor stated, “A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under [the statute]’ and therefore does not trigger the stop-time rule.”
In this case, Pereira had entered the United States in 2000. In 2006, he was served with an NTA that stated that the time and place of the hearing were “to be determined.” He later moved, filing the required change of address paperwork with the Department of Homeland Security. Nonetheless, the government sent the hearing notice to the wrong address, and he was ordered removed in absentia in 2007. In 2013, he was arrested for driving without his headlights on and learned of the prior removal order. The immigration court reopened his old order based on lack of notice, but it found he was ineligible for cancellation of removal, since he had received an NTA only six years after entering the United States and the “stop-time” rule prevented him from accruing any further continuous presence.
Prior to this decision, several circuit courts found that the stop-time rule was not triggered by the initial NTA if it failed to include the time and place. However, those courts did find that it was triggered once a hearing notice designating the time and place was issued. Orozco-Velasquez v. Att’y Gen. of U.S., 817 F.3d 78 (3d Cir. 2016); Guamanrrigra v. Holder, 670 F.3d 404, 410-11 (2d Cir. 2012) (per curiam) (holding that the later notice of hearing date triggered the stop-time rule); Popa v. Holder, 571 F.3d 890, 896–97 (9th Cir. 2009); Dabaneh v. Gonzales, 471 F.3d 806, 810 (7th Cir. 2006).
The Pereira ruling could open up cancellation of removal as an option for many noncitizens who were previously served with an NTA that did not specify the time, date and place of the hearing. Practitioners should review case files to see whether clients who are currently in removal proceedings—or who were ordered removed in the past—may benefit from this ruling. For example, practitioners may have lost claims for withholding of removal after determining that the respondent was statutorily ineligible for cancellation of removal because they had not accrued 10 years of continuous physical presence before the NTA was served. However, the respondent might now be cancellation eligible if the NTA did not specify the time and location of the hearing. In such circumstances, practitioners should file a motion to reopen with the immigration court or the Board of Immigration Appeals as soon as possible.
The Pereira decision states that the Supreme Court is only addressing “the narrow question at the intersection” of the stop-time rule and the NTA’s sufficiency. However, with the broad language of the decision finding that an NTA that lacks the statutorily-required time and place information does not meet the statutory requirements, the implications of the case may go far beyond the cancellation of removal context. It may now be possible to move to terminate cases based on this defect in the charging document. Moreover, individuals who have in absentia removal orders may be able to rely on the language in Pereira to move to reopen based on no notice pursuant to INA §§ 240(b)(5)(C)(ii) or 242B(c)(3)(B). Practitioners should keep apprised of developments in this area of the law and consider making creative arguments based on Pereira.