Ruling bolsters noncitizens’ ability to apply for cancellation of removal

OCTOBER 2017 TERM

A little-known decision from the U.S. Supreme Court this month will have a very big impact on immigrants facing deportation. Largely overshadowed by the court's decision to uphold President Donald Trump's travel ban and the press coverage surrounding family separations, Pereira v. Sessions, 2018 DJDAR 5953, is the immigration case you've probably never heard of. But for immigrants in removal proceedings, the decision is hugely consequential, if not as headline-grabbing.

On June 21, the court held 8-1 (a rare show of unity this term) that service of a notice to appear in removal proceedings which does not specify the time and place of the proceedings does not cut off a noncitizen's accrual of continuous physical presence or residence in the U.S. A noncitizen must satisfy certain minimum physical presence or residence requirements, among other things, to qualify for a form of relief from deportation known as "cancellation of removal." Non-lawful permanent residents must be able to show that they have been continuously present in the U.S. for 10 years to qualify for cancellation; lawful permanent residents must show seven years of continuous residence.

However, prior to the Supreme Court's decision, the so-called "stop-time rule" had prevented many noncitizens from meeting the physical presence or residence requirements. Under this rule, a noncitizen's accrual of physical presence or residence in the U.S. is deemed to end upon service of a notice to appear. Thus, a noncitizen who is served with a notice to appear prior to accruing the requisite time in the U.S. could not apply for cancellation of removal even if he or she did so after the issuance of the notice

In 1997, the same year that the stop-time rule went into effect, the attorney general promulgated a regulation stating that a notice to appear need only provide "the time, place and date of the initial removal hearing, where practicable."

In 2011, the Board of Immigration Appeals held that such time-stopping notices include notices to appear that do not specify the time and place of proceedings. Most courts of appeal deferred to this decision.

In Pereira, the Supreme Court declined to defer to the agency's interpretation finding that the plain language of the statute requires that the notice to appear specify the time and place of removal proceedings. Without a valid notice, the harsh consequences of the stop-time rule do not apply.

At the very least, the Pereira decision gives noncitizens who are currently in removal proceedings the opportunity to apply for cancellation of removal if they were previously prohibited from doing so under the stop-time rule. Those with final orders of removal who were never provided with the opportunity to apply for cancellation may request that their removal proceedings be reopened so they can do so now.

However, interpreted more broadly, the Pereira decision calls into question whether noncitizens who have been served with defective notices to appear are even properly in removal proceedings and whether the immigration courts can order them removed from the U.S. For jurisdiction over a noncitizen to vest with the immigration courts, a notice to appear must be properly filed. Under Pereira, a notice that does not specify the time and place is not a proper notice. This means that the immigration courts have no jurisdiction over these noncitizens. This has the potential to be earth shattering.

As Justice Sonia Sotomayor noted in her opinion, since 1997 and especially in recent years, almost all notices to appear do not specify the time and place of the removal proceedings. The bottom line is that jurisdiction never properly vested with the immigration courts in the vast majority of deportation cases.

Citing Pereira, immigration attorneys across the country are filing motions to terminate their clients' removal proceedings. Many are also requesting that prior removal orders be declared invalid because the notices were defective.

These strategies has been met with mixed results in the Los Angeles immigration court. At least one judge in agrees with the attorneys' interpretation of Pereira that she does not have jurisdiction over the respondents before her and has engaged in a so-called "mega-termination" of removal proceedings. Several other immigration judges appear receptive and are willing to hear arguments, but have yet to issue decisions. Still others are denying motions to terminate outright, holding that the Supreme Court's ruling is limited to the stop-time rule and a noncitizen's eligibility for cancellation of removal.

Only time will tell the ultimate impact of the Pereira decision. Stay tuned.