Yesterday, the Supreme Court handed immigrants a major win in Niz-Chavez v. Garland. The case concerned the requirements in the Notice to Appear, the charging document in removal proceedings. This decision has major implications on a non-permanent resident’s eligibility for Cancellation of Removal.
Congress enacted IIRIRA in 1996 limiting a non-lawful permanent resident’s eligibility for relief. Before the law was enacted, an immigrant continued to accrue physical presence in the United States. This continued physical presence meant that the immigrant was still eligible for relief even if placed in removal proceedings by the government.
The “stop-time” rule was enacted to stop the immigrant from accruing physical presence as soon as the government served him with a Notice to Appear. In Pereira v. Sessions, the Supreme Court ruled that a Notice to Appear that lacked the time and place of proceedings did not trigger the rule. Numerous cases sprung up after the decision around the country. Some courts ruled that a subsequent hearing notice cured the defects in the Notice to Appear. Others ruled that a defective Notice to Appear did not trigger the stop-time rule.
The Supreme Court intervened.
In a decision authored by Justice Gorsuch, the court ruled that a Notice to Appear that did not contain the time and place of proceedings was insufficient. This insufficiency deemed the Notice to Appear defective and made it ineffective to trigger the stop-time rule.
Judge Gorsuch reasoned that the inclusion of “a” before the words Notice to Appear meant that Congress meant a single document. The Court declined to follow the government’s argument that a subsequent hearing notice cured the defects in the initial Notice to Appear. This line of reasoning had been followed by several circuit courts around the country. The Niz-Chavez decision supersedes these decisions.
The decision might have more major implications beyond the stop-time rule. practitioners like myself have argued that the defect in the Notice to Appear should lead to termination. I have filed several motions to terminate removal proceedings since the Notice to Appear was defective.
I am certain that practitioners will also be filing Motions to Reopen in cases where a defective Notice to Appear was filed. Many immigrants were negatively affected by the Government filing these notices to appear months, and in some cases days, before the immigrant met the 10 years of physical presence in the United States. The ten years of physical presence is crucial for eligibility for this type of relief.
What Should Immigrants Do After this Decision?
Immigrants should contact a reputable immigration attorney like Attorney Ahmad Yakzan to reopen their removal proceedings. As I mentioned, numerous immigrants had been denied relief because they fell short of the 10 years of physical presence because of the Notice to Appear. This decision could make them eligible for relief and they should file a Motion to Reopen since they may qualify for relief in light of Niz-Chavez.
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