Today, the U.S. Supreme Court issued its opinion in Niz-Chavez v. Garland, ruling that where a Notice to Appear does not contain all information required by statute, including the date and time of the initial hearing, it does not trigger the stop-time rule, even when a subsequent notice gives the time and date of the hearing. This ruling will ensure that tens of thousands of noncitizens in removal proceedings can apply to stay in the United States.
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.
Three years ago, the Supreme Court ruled in Pereira v. Sessions, finding that where the NTA fails to give the time and place of the initial proceeding, it does not serve to cut off the time in the United States needed to establish to eligibility for cancellation of removal.
Undeterred, the Board of Immigration Appeals in Matter of Mendoza-Hernandez found that while the deficient NTA itself might not trigger the stop time rule after Pereira, a subsequent notice of hearing giving the time and place information perfects the deficient charging document and thus triggers the stop time rule.
This ruling was challenged in the courts of appeals, with several courts refusing to defer to the BIA’s interpretation. The Tenth Circuit, in the Banuelos-Galviz v. Barr case litigated by Denver attorney Mark Barr of Lichter Immigration, found that the subsequent notice of hearing could not cure the defective charging document for purposes of the stop time rule.
The issue made its way to the Supreme Court in the case of Niz-Chavez v. Barr. Justice Gorsuch, writing for the majority, ruled that supplying information missing from the charging document in subsequent mailings could not trigger the stop time rule:
In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.
The law is clear. In order for the charging document to trigger the stop time rule, it must contain all information required by statute. Mr. Niz-Chavez 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. But the implications go far beyond Mr. Chavez’s case.
As acknowledged by the government in its briefing in Pereira, for years charging documents almost never included the date and time of the initial hearing. In the wake of Banuelos-Galviz and Niz-Chavez, these defective charging documents cannot trigger the stop time rule even if the missing information is later mailed to the noncitizen. Many thousands of people in removal proceedings who the government previously argued were ineligible to apply for cancellation of removal can now proceed with their applications.
For clients of Joseph & Hall, we will be reviewing your cases to evaluate whether today’s ruling dictates a potential change in strategy. For others who are interested in how this case could impact their options, please contact our office to schedule a consultation.
On April 27, 2021, the Department of Homeland Security (DHS; Department) announced that U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents will no longer be…
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