The Effect of the Supreme Court Decision in Pereira v. Sessions on Non-Citizens

Pereira v. Sessions on Non-Citizens

Non-permanent residents now have a new way to challenge their removal proceedings.  It has been made possible by a recent legal decision by which many are encouraged since it has the potential to assist many non-citizens in the United States.

In an eight to one (8-1) ruling, made on June 21, 2018, the Supreme Court of the United States held that “a putative notice sent to a nonpermanent resident to appear at a removal proceeding that fails to designate a specific time or place for that proceeding does not end the continuous residence period calculation necessary for possible cancellation of the individual’s removal.”

An applicant for cancellation of removal must accrue ten (10) years of continuous physical presence, accompanied with other variables, to qualify for relief from removal. The statute states that when the Department of Homeland Security (DHS) issues a notice to appear (NTA) for removal proceedings, the NTA stops the clock on the accrual of a non-citizen’s ten (10) years of continuous physical presence.

However, 8 U.S.C. 1229(a), defines the NTA as a notice that provides specific information, including “the time and place at which the proceedings will be held.”   In practice,
a huge majority of NTAs that are served on non-citizens to initiate removal proceedings never include the time and place of the removal proceedings.

In Pereira v. Sessions Petitioner Wesley Fonseca Pereira (Pereira), a native and citizen of Brazil, who arrived in the United States in 2000 and remained after his visa expired.  He was shy of the ten (10) year continuous residence requirement when he received a notice from the DHS placing him in removal proceedings. Given that Pereira’s NTA did not contain the time and place of the removal proceedings, the Supreme Court held that the issuance of an NTA to him did not prompt the stop-time rule, which rendered him ineligible for cancellation of removal. Therefore, even after receipt of deficient notice, Pereira continued to accrue time towards his presence in the United States. On that basis, Pereira should be able to reopen his immigration court case and apply for cancellation of removal, which if granted, would give him lawful permanent residence status.

This ruling could have colossal ramifications on thousands of individuals, including persons who are currently in removal proceedings and persons who have been ordered deported.  If the Supreme Court defines an NTA as a document that must have the time and place of proceedings in all circumstances, most people currently in removal proceedings can challenge the NTA as deficient and move to terminate proceedings.

Currently, some Immigration Court Judges take a broader view and have extended its implication beyond the Stop Time Rule, effectively terminating proceedings based on a lack of subject matter jurisdiction is holding that if the NTA is not valid, the court lacks jurisdiction, and therefore, the authority to render decisions regarding any issues that may be raised.

While the DHS can always file a new and corrected NTA, it does buy a person in removal proceedings time, and may help tremendously with case completion rates, a purported goal of the Department of Justice.

If you have any questions about the recent immigration changes or what to do if you, or someone you know, is apprehended by Immigration and Customs Enforcement (ICE), do not hesitate to contact our office at (973) 542 – 0200. We have trained staff that can speak in Spanish, Hindi and Gujarati.

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