Court decides that first “notice to appear” lacking date, time and place of first hearing would be invalid for “stop time” purpose
Michael E. Piston, Attorney at Law
An important decision of the U.S. Supreme Court could give thousands
of immigrants a new chance to stay in the U.S. even if they have
already been ordered removed and taken all of their appeals – in
fact, even if they are no longer in the country!
In Pereira v. Sessions the Supreme Court held that if the “notice to
appear” issued an immigrant at the start of removal proceedings did
not provide the date time and place at which the first hearing would
be held that this notice is invalid for “stop time” purposes. This is
tremendously significant because the “stop time” rule has prevented
many thousands of immigrants from requesting” cancellation of
removal” if they didn’t have the required 10 years of continuous
presence in the United States at the time they were issued the “notice
to appear” which started their removal proceedings, even if they have
the required 10 years now. Because of the Pereira decision, anyone who
now has been in the U.S. 10 years or more and has a U.S. citizen or
permanent resident parent, spouse or child may ask the Immigration
Court (or Board of Immigration Appeals) to “reopen” their case so that
they may apply for cancellation removal – if and only if their notice
to appear did NOT specify the date, time and place of their first
hearing.
However, if their case is reopened, they will only actually get
permanent residency if they can show that their U.S. citizen or
permanent resident parent, spouse or child will suffer “exceptional
and extremely unusual hardship” if they are removed. This is a quite
high standard which many immigrants may not meet. Still there is an
advantage to reopening their case anyway, because once their case is
reopened, they may be able to apply for any other relief from removal
they may now be eligible for, such as adjustment of status based upon
a visa petition filed upon their behalf by certain relatives. This is
in itself a very big advantage, because it is often very difficult to
reopen one’s removal proceedings more than 90 days after receiving a
final order of removal, even if one becomes eligible for new relief
after that time.
Further, a few immigrants may now be eligible to apply for an even
more generous form of relief from deportation called “suspension of
deportation”. It depends on what type of paper they were given at the
beginning of their case. If they were issued a “Notice to Appear” as
every immigrant in the past 25 years has been given, then they are
limited to seeking the relief of cancellation of removal. If however,
the immigrant was issued an “Order to Show Cause” then they may be
able to apply for “suspension of deportation” even if they have only
been in the U.S. for 7 years (or had been in the U.S. for 7 years when
removed). Further, such fortunate immigrants need not have a U.S.
citizen or permanent resident parent spouse or child to apply for
reopening – it is enough to show that they themselves (or their USC or
LPR parent spouse or child) would suffer “extreme hardship” if they
were (or even already have been) removed. This is a much easier
standard to meet than the “exceptional and extremely unusual hardship”
required for cancellation of removal. But, once again, the “Order to
Show Cause” must NOT have contained a place, date and time for a
hearing for this option to be available.
Finally, as always, there are exceptions to every rule. Some otherwise
qualified immigrants will still not be able to apply for cancellation
of removal or suspension of deportation if, for example, they have
been convicted of certain crimes, had their removal orders
“reinstated” or were not persons of “good moral character” during the
required period. These are points one will need to consult with an
attorney on.
In short, any immigrant who is in removal proceedings or has been
ordered removed (or even has actually been removed) from the United
States who had not been in the US for 10 years at the time they were
issued a notice to appear (but now have been, or had been when they
were removed), has a U.S. citizen or permanent resident parent, spouse
or child (the child must be unmarried and under 21) and that notice
of appear does NOT provide a time, date and place for a hearing, needs
to contact an immigration attorney ‘immediately’ to see about reopening
his case. It is important that one contacts an attorney as soon as
possible because the Courts may refuse reopening where it does not
appear that the person applied quickly after the decision.
Also, someone who received an ‘Order to Show Cause’ without a time
date and place for a hearing, may apply for reopening merely if one
has been in the U.S. 7 or more years (or were in the U.S. 7 or more
years before being deported).
Anyone who doesn’t have a copy of their “Notice to Appear” or “Order
to Show Cause” may request a copy of it from the Immigration Court by
going here: https://www.justice.gov/eoir/foia-facts
Of course, anyone with questions regarding their cases is welcome to
contact the author of this article for a free telephone consultation.
Although based in New York, I handle cases throughout the country.
