This week the U.S. Supreme Court ruled for Brazilian immigrant Wescley Pereira in Pereira v. Sessions, finding that the charging document was defective and did not cut off the time in the United States he needed to establish to apply for cancellation of removal. Many thousands of immigrants in removal proceedings are likely to benefit from this landmark decision.
One of the most common defenses against deportation is called “cancellation of removal.” To get cancellation of removal, among other requirements, an applicant must show that you’ve been in the U.S. for a certain amount of time. The statute has a “stop time rule” that says that for purposes of cancellation, time in the U.S. gets cut off upon the service of a Notice to Appear (NTA) under 8 U.S.C. 1229 (which defines what an NTA must contain).
8 U.S.C.1229, in turn, says that an NTA specifying information including “the time and place” removal proceedings will be held “shall be given” to the noncitizen.
Mr. Pereira argued that the “stop time rule” only cuts off time if the NTA comports with requirements in law, including telling the person when and where he is supposed to show up. In other words, if an NTA is served without the information required by section 1229, it’s not an NTA issued “under section 1229” and doesn’t cut off his time in the United States.
The Board of Immigration Appeals and deferring circuit courts said that it doesn’t matter if the NTA actually contains the information the statute requires. Mere service of the document, in the Board’s view, cut off the person’s time in the U.S. for purposes of cancellation of removal.
The Supreme Court found that the law was clear. In order for the charging document to be considered an NTA, it must comply with the requirements of the statute defining NTAs and specifically must include the time and place of hearing. Because of this, Mr. Pereira continued to accrue physical presence in the U.S. even after the issuance of the defective NTA. He will now get the opportunity to apply to stay in the country through cancellation of removal by trying to convince an immigration judge that he meets all other legal requirements and deserves the chance to stay.
As acknowledged by the government in its briefing in Pereira, NTAs almost never include the date and time of hearing. This means that many thousands of people in removal proceedings who were previously deemed ineligible for cancellation of removal will now be able to apply.
Second, the Supreme Court’s strong language indicating that 8 U.S.C. 1229 was definitional may provide arguments to other noncitizens that their proceedings must be terminated. It may also give new arguments to some people who already have removal orders that their cases should be reopened due to defective charging documents.
We will continue to study the Pereira opinion to evaluate whether it will open up new arguments for our clients. For non-clients, if you are in removal proceedings or have a final order of removal and want to know whether Pereira gives you new options, please contact our office to set up a consultation.
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