© Attorney Farhad Sethna, 2018

In Pereira v. Sessions [585 U. S. ____ (2018)], the Supreme Court of the United States, in a 8-1 decision (almost total unanimity from even the Republican-appointed justices, save Justice Alito) held that a notice to appear which did not state the date, time or place of the immigration court hearing failed to trigger the “stop time” rule which effectively barred an alien from accruing further physical presence time in the U.S., so as to qualify for cancellation of removal.

As background, “cancellation of removal” is a form of relief available to both legal permanent residents and non-legal permanent residents alike. Even individuals that are undocumented may avail of Cancellation of Removal if they are able to prove that they have been physically present in the USA either (1) prior to the commission of an offence that triggers removal proceedings; or (2) the date of the notice to appear that places them in removal proceedings. In order to seek Cancellation of Removal, an undocumented alien would have to show a minimum of 10 years of physical presence in the USA (7 years if a Legal Permanent resident) PRIOR to the service of the Notice to Appear (“NTA”). The service of the NTA “Broke” the 10-year or 7-year accrual of time.

In Pereira v. Sessions, however, the Supreme Court held that a NTA which failed to include the date, time or place of the hearing, was an imperfect NTA and therefore void. Accordingly, an alien would continue to accrue time even after the date of the issuance of the imperfect NTA, until the NTA was corrected and included the date, time or place of the hearing.

For example, if an alien had 9 years of accrued physical presence in the USA at the time an “imperfect” NTA was served, the clock would NOT stop…..the alien would continue to accumulate time toward a possible 10 years to enable him or her to apply for cancellation of removal. If a corrected NTA was not served within 1 more year, the alien would reach the required 10 years of physical presence in the US and could then apply for cancellation of removal if he or she met the other necessary factors.

What does this ruling mean?

It means that an alien who was previously precluded from applying for cancellation of removal because he or she had accrued less than ten years of physical presence in the USA (or seven years in the case of a permanent resident) could now seek to reopen his or her proceedings and apply for cancellation of removal for either non-LPRs or LPRs based on the Pereira decision.

For example, if an alien had 9 years of accrued physical presence in the USA at the time an “imperfect” NTA was served, the clock would NOT stop…..the alien would continue to accumulate time toward a possible 10 years to enable him or her to apply for cancellation of removal. If a corrected NTA was not served within 1 more year, the alien would reach the required 10 years of physical presence in the US and could then apply for cancellation of removal if he or she met the other necessary factors.

Other possible relief for aliens in removal:

a. Motion to Terminate

Could the Pereira decision also result in notices to appear which fail to state the date, time and location of a master calendar hearing be sufficient to justify a Motion to Terminate the proceedings until a new notice is issued?  I would argue that they do!

b. Motion to Reopen

Also, could an imperfect Notice to Appear be the basis for a Motion to Reopen even if the alien had received notice of the removal proceedings, since the Notice to Appear itself was imperfect in the first place?  Again, I would argue that the Pereira case supports a Motion to Reopen.  Note that the Pereira case did not preclude Pereira from seeking Cancellation of Removal simply because he appeared before the immigration court. Since failure to appear before the court at a scheduled hearing carries serious consequences, it is necessary to appear at all immigration court hearings, but make arguments to preserve forms of relief or procedural shortcomings.

Limitations of the Pereira decision:

While the Supreme Court left the above questions unanswered, focusing only on whether an imperfect Notice to Appear stopped the time for accrual of a cancellation of removal application, as discussed briefly above, an effective advocate should make these arguments to preserve the client’s rights both for the immigration court proceedings as well as future appeals.

DHS and EOIR collaboration to set time, date and place of hearing:

The Supreme Court has held convincingly (in an 8-1 decision) that the omission of the time and date on a Notice to Appear resulted in an imperfect notice, and therefore the respondent continued to accrue time toward applying for Cancellation of Removal. The Supreme Court suggested that the DHS and the immigration courts needed to work together to list the date and time of an individual’s hearing on the Notice to Appear.

Conclusion

What will the DHS do now? It is likely that the DHS and the court will simply determine to set an arbitrary date some months into the future when they serve the Notice to Appear. In that case, the Notice to Appear will contain a date and time of the hearing, and a place for the hearing. This will perfect the Notice to Appear, and it will therefore be valid under the law as well as under the Pereira decision. As permitted by regulation, the court can then issue a subsequent Notice of Hearing, changing the date and time of the hearing to whatever the court’s administrative convenience may permit. Therefore, the victory for individuals receiving future notices to appear is short-lived; however, the Pereira case is a significant victory for individuals who were not allowed to apply for cancellation of removal due to the application of the stop time rule, as well as the potential for reopening or terminating other existing cases.

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© Farhad Sethna, Attorney, 2018

Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.