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Supreme Court Strikes Down the Validity of Certain Notices to Appear

On June 21, 2018 the U.S. Supreme Court held that a stop time provision of the cancellation of removal physical presence eligibility requirement is not triggered by service of a document styled as a Notice to Appear for removal proceedings that does not include the date and time of the hearing. Pereira v. Sessions, No. 17-459 (June 21, 2018). The Court’s holding provides extensive availability of cancellation of removal under Section 240(A)(b) of the Immigration and Nationality Act to many persons in current or past removal proceedings who have been served such deficient Notices before acquiring the required seven or ten years

The Pereira Court held if the government serves a noncitizen with a document that is labeled “Notice to Appear” but the document fails to specify either the date or place of the removal proceedings, does it trigger the stop time rule? The answer is as obvious as it seems: no. A notice that does not inform a citizen when and where to appear for removal proceedings is not a “Notice to Appear under Section 239(a)” and therefore does not trigger the stop time rule.

The Court’s direct holding expands cancellation of removal discretionary relief to many persons in current or past removal proceedings who were in the past served Notices to Appear lacking time and place of the hearing information before acquiring ten years of continuous physical presence. This allows many persons to now move to terminate proceedings due to defective NTA’s based on the Supreme Court ruling in Pereira and any such noncitizen who has already been ordered removed may be able to move to reconsider/reopen his past removal proceedings due to a defective NTA.

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