U.S. Supreme Court Case Opens The Door To Potentially Thousands of Deportation Case Dismissals

Posted by Matthew Green | Aug 12, 2018 | 0 Comments

On June 21, 2018, the U.S. Supreme Court  issued one of the most significant immigration opinions in decades.  In Pereira v. Sessions, the Supreme Court addressed the legal sufficiency of a Notice to Appear (NTA).  An Notice to Appear is the document that the Department of Homeland Security (DHS) drafts and provides to a non-citizen when it begins a deportation case (called removal proceedings) in an immigration court.  The NTA is the immigration court equivalent to a complaint or an indictment in a criminal case.  And, like a charging document in a criminal case, an NTA must satisfy certain requirements in order for the court to have jurisdiction over the person, and jurisdiction over the case.  

At first glance, Pereira seemed to only deal with the sufficiency of an NTA when considering a relatively limited issue.  Mr. Pereira had applied for cancellation of removal , which is a form of relief from deportation that is available in removal proceedings.  The form of cancellation of removal that Mr. Pereira applied for is known as "non-LPR cancellation of removal," or "ten-year cancellation of removal," which certain nonpermanent residents may be eligible to receive.  Non-LPR cancellation of removal requires an individual to demonstrate: (1) continuous physical presence in the United States for not less than 10 years immediately preceding the date of application; (2) good moral character during such period; (3) that he or she has not been convicted of certain criminal offenses; and (4) that removal would result in exceptional and extremely unusual hardship to the individual's U.S. citizen or LPR spouse, parent, or child.  If the individual is successful, an immigration judge may "cancel" deportation and grant lawful permanent residency--a "green card"--to the individual.

Mr. Pereira had applied for this kind of cancellation of removal, but the immigration judge ruled he was ineligible based on something known as the "stop-time rule."  The stop-time rule is found under 8 U.S.C. Sec. 1229b(d).  It states that the ten year period of continuous physical presence ends when the noncitizen "is served with a notice to appear under [8 U.S.C. Sec. 1229(a)]."  Mr. Pereira argued, and the Supreme Court ultimately agreed, that the plain language of that statute unambiguously defines an NTA as specifying where and when the noncitizen must appear for removal proceedings.  This was very significant for Mr. Pereira, who had entered the United States in 2000.  In 2006, DHS served him with an NTA that did not include the date, time, and place of a hearing. The NTA stated that the time and place of the hearing were “to be set.”  The immigration judge denied Mr. Pereira's application for cancellation of removal finding that the 2006 NTA stopped the accrual of continuous physical presence in the United States.  

In an 8-1 decision, authored by Justice Sotomayor, the Supreme Court found that “[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a)' and therefore does not trigger the stop-time rule.”  The Court concluded that NTAs that do not contain at least this basic information do not meet the definition of an NTA under 8 U.S.C. § 1229(a)(1) for purposes of the stop-time rule and remanded Mr. Pereira's case for further proceedings.

Because non-LPR cancellation of removal is one of the most common forms of waivers filed by non-citizens in immigration court, Pereira is very important. Or, more to the point, it is probably the most common waiver that many people in immigration court in the past two decades would have been eligible for if they had been able to establish ten years of continuous physical presence. As the American Immigration Council (AIC) and Catholic Legal Immigration Network, Inc. (CLINIC) note in their excellent Pereira practice advisory, for many years, DHS has issued and served NTAs that provide that the place, date, and/or time of the removal proceedings is 'to be determined.'"  In fact, during oral argument at the Supreme Court, when the government's attorney was asked how many NTAs omit the date and time of the hearing, the lawyer responded, "almost 100 percent."  So, after Pereira, it is clear that NTAs that do not specify the time and date of removal proceedings cannot trigger the stop-time rule.

But the broader application of this rule is stunning in its potential reach.  For individuals who have already received orders of removal (deportation) because an immigration judge found that the stop-time rule made them ineligible for cancellation of removal, they now have the opportunity to fight for their deportation orders to be dismissed, and for their cases to be reopened.  In another excellent practice advisory issued by the National Immigration Project and the Immigrant Defense Project, the authors explain that, "[r]egardless whether an individual sought judicial review, he or she may file a motion to reconsider or a motion to reopen with the BIA or the immigration court (whichever entity last had jurisdiction over the case). There are strong arguments that fundamental changes in the law warrant reconsideration because they are 'errors of law' in the prior decision." In short, "[t]he Court's direct holding expands availability of cancellation of removal discretionary relief not only to Mr. Pereira but also to the many other persons in current or past removal proceedings who were in the past served notices to appear lacking time and place of hearing information before acquiring the 10 years of continuous physical presence (or, in the case of a lawful permanent resident, 7 years of continuous residence) required for cancellation of removal but who later acquired the 10/7 years." "And any such noncitizen who has already been ordered removed may be able to move to reconsider/reopen past removal proceedings due to the defective NTA."

 But that's just the beginning.  The Pereira case also supports arguments for challenging the immigration courts' jurisdiction over cases that were initiated by defective NTAs that lack the required information of time and place of the court hearing.  These legally deficient charging documents are referred to as "putative" notices to appear.  As the practice advisory concludes, an immigration judge applying Pereira, the Immigration and Nationality Act (INA), and the Attorney General's own regulations should find that no jurisdiction exists when the Department of Homeland Security serves a putative NTA without the requisite time and place of the hearing.  In Pereira, the Supreme Court does not treat a putative NTA that lacks the time and place of the hearing as being a valid NTA. Thus if DHS has failed to comply with the statutory statutory and regulatory requirements to “initiate a removal proceeding,” DHS has failed to “initiate a removal proceeding” and the Immigration Court never had jurisdiction over the case in the first place. 

Already, hundreds of attorneys from all over the country have begun filing motions to terminate (dismiss) active removal proceedings for their clients, in addition to filing motions to reconsider or reopen, and to terminate, cases that have already been decided.  The Law Offices of Matthew H. Green is among these law firms, and we will continue to bring Pereira challenges in the immigration courts, the Board of Immigration Appeals (BIA), the Ninth Circuit Court of Appeals, and in the U.S. District Court whenever it is appropriate and possible to do so.  And, already, immigration judges from around the country have begun to terminate removal proceedings based on these arguments.

If you believe you have a case that may be affected by the Pereira decision, please contact us to schedule a consultation.  We are excited to help as many people as possible as our law firm continues to exercise a leadership role in the development and advancement of progressive litigation on this issue.  

About the Author

Matthew Green

Managing Attorney. The Law Offices of Matthew H. Green focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...

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