How the Supreme Court made it easier to stop your deportation

Deportation proceedings are generally commenced by the issuance to an alien of a Notice to Appear (NTA) in Immigration Court by the Department of Homeland Security (DHS).

8 U.S. Code 1229(a)) sets down the procedures for DHS to follow in commencing proceedings and states that the alien must be properly notified of the time and place of the proceedings; the NTA must include, among other items “…the time and place at which the [removal] proceedings will be held…”.

 This is just common sense and is a requirement in any type of civil proceeding; if you want someone to show up to court, they must be told when and where! If I were to sue you in Civil Court for $500 but I did not serve you proper notice of the lawsuit, my case would be dismissed by the judge since you would not have been given an opportunity to appear and defend yourself.

However, in recent years DHS has issued NTAs that do not list a date, time, or location but instead a stamp that says TBD (To Be Determined). Presumably this is because DHS officers do not have access to the Immigration Court’s scheduling system and must wait for available slots. Or it’s because there is simply no way to efficiently schedule removal proceedings for 11 million aliens, a fact that our current administration cannot seem to grasp.

Either way, the result is that a person can wait in limbo for months, even years to get a court date and in the meantime may have changed address and never receive the follow up notice containing the actual court date. If a person does not show up for an Immigration Court hearing they are generally ordered deported in their absence or “in absentia”, since you cannot avoid deportation by simply not showing up to court.

This makes any future applications for status much more difficult since a deportation order remains in effect until either the person is deported or the order is rescinded by a judge. Even if you marry a U.S. citizen and file for a green card a removal order doesn’t just disappear, you generally have to go back to court to convince DHS and the judge to rescind it before you can even file.

On June 21st, 2018 the Supreme Court handed down its decision in Pereira v Sessions, 585 U.S. __ 2018 which concerned this exact scenario: Wescley Pereira was issued a Notice to Appear in 2006 which did not list a time, place, and date for his initial hearing. When DHS finally got around to issuing a NTA with a court date in 2007, he did not receive it and had no idea a hearing date had been set. Accordingly, he was ordered deported in absentia. He remained in the U.S.

Pereira was arrested for driving with a broken tail light in 2013 and DHS was notified of his presence in the U.S. They sought to enforce the 2007 removal order to send him back to Brazil.  Pereira tried to apply for cancellation of removal on the basis that he had U.S. citizen children and had been physically present in the United States for ten years or more (he arrived in June 2000).

However, if a person has been placed in removal proceedings before reaching that ten year mark, they are no longer considered to be accumulating physical presence and they are not eligible for cancellation; this is the “stop-time rule”.

For example if you entered the U.S. in 2005, overstayed your visa, and were properly issued a NTA in 2010 you would not be eligible for cancellation of removal since you would only have accumulated five years of physical presence, when ten are required. The rationale for this rule is presumably that time spent in removal proceedings should not be counted towards eligibility for permanent residence.

Pereira (through his attorney) argued that the 2006 NTA did not properly place him in proceedings, that the stop-time rule therefore did not apply, and accordingly he was eligible for cancellation since he had accumulated ten years of physical presence (2000-2010) by the time of the 2013 proceedings.

The Board of Immigration Appeals (BIA) ruled against Pereira and said that 8 U.S.C 1229 did not require that a NTA contain the actual time and place of the hearing to trigger the stop-time rule. Therefore the rule was triggered in 2006 (four years shy of the required ten) and rendered Pereira ineligible for cancellation.

The Court of Appeals for the First Circuit held that the BIA made a permissible interpretation of an ambiguous law and that therefore the BIA’s decision would stand. This is an administrative law principle known as “administrative deference” (also called Chevron deference after a 1984 Supreme Court case) and it means that if Congress delegates power to an agency to implement a statute but the statute (or a section of it) is ambiguous, the agency’s interpretation of the statute can only be overruled by a court if it is unreasonable or contrary to law.

Pereira appealed to the Supreme Court.

The main question presented to the Court was quite narrow:

  1. can a Notice to Appear serve to commence the removal process (and thereby trigger the stop-time rule for the purposes of eligibility for cancellation) if it does not contain an actual date, time, and place for an alien to appear in the manner that the INA says that it should?
  2. A secondary issue was whether or not the First Circuit was correct in applying the Chevron principle and following the BIA’s interpretation of 8 U.S. Code 1229(a).

The Supreme Court answered no to both questions.

The Opinion of the court is clear: if the INA lists several steps for the proper commencement of proceedings and those steps are not followed, then proceedings have not been properly commenced; “…the answer is as obvious as it seems” (Sotomayor J).The Court also ruled that Chevron did not apply here since the law was not ambiguous; the intent of Congress was clear.

Therefore, Pereira’s physical presence clock, which started on his arrival in 2000 did not stop in 2006 with the issuance of the NTA but continued to run. Accordingly, Pereira had accumulated the requisite ten years by the time DHS sought to deport him in 2013 and he was eligible to apply for cancellation as a defense to his removal.

This was certainly great news for Pereira and for anyone else who might not have been eligible for cancellation for the same reason. However, the decision has positive ramifications for all persons in removal proceedings: if you received a NTA that did not provide you with the time, place, and date of your hearing the Supreme Court has ruled in essence that it is not valid. You are not considered to be in removal proceedings because DHS did not provide you with the proper notice that the law says that they must. Therefore, you could file a motion with the Immigration Judge to terminate those proceedings and even to reopen proceedings and rescind a removal order, if one has already been issued.

In a recent case we were able to use the Pereira case to do exactly that; our client had been issued one of those date-uncertain NTAs after her asylum case was rejected by the Asylum Office of U.S. Citizenship and Immigration Services (USCIS). Like many others in the New York area she waited several years for a hearing date and had moved several times by the time the Immigration Court finally scheduled a hearing. Since they mailed the NTA to an address she no longer lived at, she never received it and had no idea a hearing was even taking place. Because she did not appear, the Immigration Judge entered an in absentia order against her and ordered her deportation to China.

We were able to immediately file a motion with the Immigration Court to ask the Judge to reopen her proceedings, to terminate them, and to rescind that removal order on the basis that the NTA which commenced her proceedings was not valid. To our delight, the Judge granted the motion, and now our client will have an opportunity to present her asylum case in court.

If you are in proceedings or were previously and received a NTA that did not specify the time and place of your hearing I encourage you to get in touch with my office, you may now have options which were not available to you before June 2018.

By Alexandre Law Firm

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