No Date-No Time-No Go: Pereira v. Sessions Case Note
In a decision that should help immigrants around the country, the Supreme Court ruled that a defective Notice to Appear that lacks time and place of proceedings cannot be used to stop the accrual of time for Cancellation of Removal purposes. This decision, Pereira v. Sessions, should lead to relief for many immigrants, including ones I have represented, and should help many immigrants remain in the United States.
Stop Time Rule
Many of you may wonder what the Stop Time rule means. Non-Permanent residents may apply for Cancellation of Removal if they meet several requirements, including being physically present for ten (10) years in the United States. Some conduct may stop the clock from running, including the initiation of removal proceedings by the service of a Notice to Appear. This Notice to Appear usually initiates removal proceedings, but may not include a time and a place of the initial hearing. In fact, the government may take years to schedule the initial hearing after service of the Notice to Appear, which means that the immigrant may move and may lose years of physical presence that could be counted towards the time span for Cancellation of Removal.
Issues Before the Court
The issue before the court was whether a Notice to Appear that does not include the time and place of the initial hearing was enough to stop the time for Cancellation of Removal cases.
Periera is a native of Brazil. The Department of Homeland Security issued a Notice to Appear that did not designate a time and a place for a removal hearing in 2006 after she was stopped for a DUI. In 2007, the immigration court mailed a hearing notice to her, which she did not receive and the immigration judge ordered her removal in absentia.
In 2013, she was arrested again and her removal proceedings were reopened because she did not receive the initial hearing notice. She applied for Cancellation of Removal and her application was denied because she did not meet the physical presence requirement because she was served with the Notice to Appear before being in the United States for 10 years. She argued that the Notice to APpear did not trigger the stop-time rule because it did not contain the time and place for her initial hearing. The immigration judge denied her application and the Board of Immigration Appeals agreed. The First Circuit upheld.
The Supreme Court’s Holding in Pereira
The Supreme Court’s decision, authored by Justice Sotomayor, ruled that a Notice to Appear that does not designate a time and a place for removal did not meet the requirements under 8 USC 1229(a) and thus does not trigger the stop-time rule. In reaching the decision, Justice Sotomayor reasoned that the plain language of 1229(a) states that the Notice to Appear must designate a time and a place for the initial removal hearing. Since Pereira’s initial Notice to Appear did not, the Government did not abide by the statute and the Notice was defective, and as such did not trigger the stop-time rule for Cancellation of Removal purposes. This, the Court ruled that Pereira was eligible for relief from removal.
What Should You Do if You Were Denied Cancellation of Removal Under the Stop-Time Rule for a Defective Notice to Appear?
You should contact an immigration attorney, like attorney Ahmad Yakzan, as soon as possible to file a Motion to Reopen Removal Proceedings with the immigration court with administrative jurisdiction over your case. This is usually the immigration court closest to where you live. This Motion to Reopen would help you reopen the case and apply for Cancellation of Removal if you are still eligible.
Contact us at 1(888)963-7326 or use the contact form below to schedule a strategy session with Attorney Ahmad Yakzan.