On June 21, 2018, the U.S. Supreme Court held in an 8-1 decision that Notices to Appear or NTAs (the document that the government servesonindividuals to notify them of their removal proceedings) are facially defective if they do not contain a time and date that the individual must appear at Court. This case of Pereira v. Sessions is “big news” because the overwhelming majority of NTAs that the government has served in the past twenty years did not contain dates of appearance and instead those dates were mailed in a later hearing notice. What this means is that anybody who has a deportation or removal order may file a motion to reopen or reconsider that order. And anybody who is currently in removal proceedings can file a motion to terminate based upon these defective notices and the fact that the Supreme Court has held that the Immigration Court does not have jurisdiction over these cases.
An individual with a deportation or removal order would want to file this motion or “stir the pot” for several reasons. 1) The Supreme Court’s ruling specifically applied to a provision called the “stop time rule”. This rule states that a person can no longer acquire physical presence in the United States for the purposes of Cancellation of Removal once they are served with a Notice to Appear. Cancellation which is often referred to as a “ten year case” is an application for relief that can only be applied for when an individual is in removal proceedings. Individuals only qualify for this relief if they have lived in the United States for ten years and have LPR or U.S. Citizen children, spouse or parents. However, the law states that service with an NTA stops an individual from acquiring the ten years, so any time an individual lives in the United States after they are served with a notice to appear “does not count”. This new ruling states that if an individual is served with an NTA that does not contain a hearing date then the stop time rule does not apply and those years do count for Cancellation. This has huge implications and is worth going back into removal proceedings because it gives individuals who have been in the United States ten years a new avenue for relief and to obtain a green card. 2) Although the Supreme Court’s decision applied specifically to this “stop time rule” the ruling has much broader implications. The ruling could reasonably be interpreted to mean that since these NTAs are now defective that even individuals who are currently in removal proceedings or have not been in the U.S. for ten years can challenge their removal proceedings on the basis that the Immigration Court never had jurisdiction to hear their case. This means that it may be possible to terminate removal proceedings if an individual does not have good or viable relief they would like to be seeking. 3) This ruling also applies to many people who have “nothing to lose”. I.e. people who have already been deported and are now living abroad or people who are detained based on previous deportation orders or for criminal arrests.
For many people with final removal orders, filing a motion and utilizing this recent decision has a deadline. Filing a motion to reconsider a removal order must be filed within 90 days of the June 21st decision. This date is September 19, 2018. Filing a motion by this date will greatly increase an individuals chances of getting that motion approved as these motions are designed for this exact scenario, i.e. when an agency (or Court) makes a mistake in fact or law.