U.S. Supreme Court Steps Up for Immigrants in Pereira v. Sessions

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On June 21, 2018, the Supreme Court issued its groundbreaking decision in Pereira v. Sessions which holds that Notices to Appear (NTA) that do not specify the date, time and place of removal proceedings do not meet the statutory definition of an NTA and, therefore, do not cut off a noncitizen’s ability to accrue the time in the United States required to qualify for cancellation of removal.

Since it became common practice over the last several years for USCIS to issue NTA’s without including a date, time and place to appear, the implications of Pereira are wide-ranging and, interpreted most broadly, could mean that anyone in the U.S. more than ten years, who can demonstrate harm to a U.S. citizen relative if deported and good moral character, could be granted cancellation of removal, whether or not they were ever issued an NTA in the past. Furthermore, based on the Supreme Court’s decision, immigration courts might not be able to take jurisdiction in matters unrelated to cancellation of removal and the stop time rule and would have to allow for termination of all removal proceedings pertaining to an NTA that does not contain the statutorily required information. Furthermore, it would mean that final removal orders and expedited removal orders issued and/or executed under such circumstances would be invalid. Pereira literally could affect millions of removal cases initiated by the government over the last several years.

The Board of Immigration Appeals (BIA) did not waste much time weighing in, however, and on August 31, 2018, interpreted Pereira narrowly in its holding in Bermudez-Cota. The BIA, in Bermudez-Cota held that an NTA should not be considered defective, for purposes of the stop time rule, if a subsequent notice of hearing is properly served. In other words, any defective NTA can be cured by a hearing notice which contains the date, time and place of the hearing.

However, it is this author’s position that in Pereira, the Supreme Court, in an 8-to-1 decision, spoke clearly and decisively. It stood up for justice and rebuked the government for the sloppy way in which USCIS carries out its important responsibilities in such a punitive process as removal proceedings where people are deported from the U.S., sometimes for life. It underwent an extensive analysis of the statute and its explicit language which is plain and clearly states that the date, time and place of hearing is an essential element of an NTA. While the Supreme Court did not address all the issues, the implications of Pereira will surely be litigated for some time, and this will be a developing area of immigration law for years to come. Anyone ever issued an NTA without the date, time and place to appear included on its face should contact this office to see how they may be affected by the holding in Pereira.

Read Pereira v. Sessions at: https://www.supremecourt.gov/opinions/17pdf/17-459_1o13.pdf